EXHIBIT 10.24
N.E. 000xx & Xxxxxxx Xxx
Xxxxxxxx, Xxxxxx
PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (this "Agreement") is made
by and between OPUS NORTHWEST, L.L.C., a Delaware limited liability company, and
("Buyer"), GARDENBURGER, INC., an Oregon corporation ("Seller"), and has an
Effective Date determined pursuant to Section 10.10.
Seller is the owner of certain unimproved real property in the City of
Portland, Multnomah County, Oregon, consisting of approximately 18 gross acres
and 11.18 net useable acres located at N.E. 166th and Airport Way, (the "Land")
described on EXHIBIT A attached hereto and shown on the drawing attached hereto
as EXHIBIT B.
As used in this Agreement, "Property" means collectively the following:
(i) the Land and all rights, privileges and appurtenances thereunto belonging or
appertaining (the "Real Property"); (ii) all improvements and fixtures located
on the Land (the "Improvements"); and (iii) all assignable continuing business
licenses, utility contracts, warranties, governmental approvals and development
rights related to the Real Property or the Improvements or any part thereof
including the plans and all governmental permits, licenses and approvals, and
any studies or other reports or information in the possession of available to
Seller which pertain to the condition and/or present or potential development
and/or use of the Property including environmental site assessments of the
property (collectively, the "Development Documents").
Seller wishes to sell the Property to Buyer and Buyer wishes to
purchase the Property from Seller, all on the terms, covenants and conditions
set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other valuable consideration, receipt and
sufficiency of which is fully, completely, and unconditionally acknowledged by
Buyer and Seller, Seller and Buyer do hereby agree as follows:
1. AGREEMENT. Seller agrees to sell the Property to Buyer in accordance
with the terms of this Agreement. Buyer agrees to purchase the Property subject
to and in accordance with the terms and conditions of this Agreement.
2. PURCHASE PRICE AND PAYMENT. The total purchase price for the
Property (the "Purchase Price") shall be Three Dollars and Eighty-Five Cents
($3.85) times the "Net Usable Area" of the Land, as certified to Seller and
Buyer in the Survey arising out of Section 5.3. Assuming the Land has 11.18 Net
Usable Acres, the Purchase Price would be $1,874,953. "Net Usable Area" means
the number of square feet of the Land less all portions of the Land: presently
lying in public roadways or subject to public road rights of way; proposed to be
dedicated as public road rights of way; or within the boundaries of any area
that is not buildable because it is part of a culvert area or constitutes a
sensitive or critical area (including geologic hazard areas) or wetlands, and
any associated buffers or setbacks, as determined by the City of Portland,
Oregon, or the U.S. Army Corps of Engineers. If the Survey shows that the Net
Useable Area is less than 487,000 square feet, Seller may terminate this
Agreement by notice to Buyer within ten (10) days of Seller's receipt of the
Survey. Upon such termination, the Xxxxxxx Money Note shall be returned to
Buyer.
The Purchase Price shall be payable:
(a) By Buyer paying Seller on or before Closing cash in the
amount of twenty-five percent (25%) of the Purchase Price (the "Down
Payment") less the Xxxxxxx Money Deposit and any Extension Deposit; and
(b) The remaining balance of the Purchase Price shall be paid
by Buyer executing and delivering to Seller a deed of trust note (the
"Note") in form and content of EXHIBIT C attached hereto, providing
that the principal balance shall be due and payable, without interest,
on or before October 31, 1998. The Note shall be secured by a deed of
trust (the "Deed of Trust") in form and content of EXHIBIT D attached
hereto.
3. XXXXXXX MONEY. Upon full execution of this Agreement by Buyer and
Seller, Seller shall open an escrow with First American Title Insurance Company
of Oregon ("Escrow Company"), 000 XX Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx
00000, and, within five (5) Business Days thereafter, Buyer shall deposit with
Escrow Company an xxxxxxx money note in the amount of Fifty Thousand Dollars
($50,000) (the "Xxxxxxx Money Note") in the form of EXHIBIT E. The Xxxxxxx Money
Note shall be converted to cash upon satisfaction or waiver of all Feasibility
Contingencies pursuant to Section 4.3 of this Agreement. The proceeds of the
Xxxxxxx Money Note and any Extension Deposit deposited with Escrow Company and
interest earned thereon, are hereinafter referred to collectively as the
"Xxxxxxx Money". The Xxxxxxx Money shall be held by Escrow Company in an
interest-bearing account as directed by Buyer, with the interest accruing to
Buyer's benefit. If this transaction Closes as provided herein, the Xxxxxxx
Money shall apply towards the Purchase Price at Closing.
If the transaction fails to Close due to default by Buyer, Seller's
sole and exclusive remedy shall be to terminate this Agreement and collect and
retain any Xxxxxxx Money paid to Escrow Company, as liquidated damages. Seller
hereby releases any and all right to specific performance of this Agreement
and/or to recover actual damages incurred as a result of Buyer's default. In
establishing this liquidated damages amount, the parties agree that the amount
is a reasonable estimate, as of the time this Agreement is being executed, of
the risks and damages Seller could suffer as a result of Buyer's failure to
close this transaction, including, without limitation, the risk of freezing the
purchase price or losing the opportunity to sell for a higher price, the risk
that the market for the Property could drop substantially, the lost time value
of Seller's equity resulting from any delay in receiving payment of its equity,
lost opportunities for other investments, changes in the availability and cost
of financing for Seller's subsequent investments, and costs that Seller could
incur as a result of the Buyer's default. The foregoing provisions represent the
agreement of the parties as to what the Seller's remedy will be if the Buyer
defaults by failing to close this transaction. In addition to that remedy,
Seller retains any cause of action arising from any other breach or default by
Buyer under this Agreement, including all indemnification obligations.
In the event of any breach of this Agreement by Seller, the Xxxxxxx
Money Note or Xxxxxxx Money, as the case may be, and any Extension Deposit,
shall be returned to Buyer and Buyer shall be entitled to available legal and
equitable remedies, including the right to specific performance; provided;
however, that in no event shall Seller be liable to Buyer for damages in excess
of Fifty Thousand Dollars ($50,000).
BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND SPECIFICALLY
NEGOTIATED THE FOREGOING PROVISIONS AND LIMITATIONS ON REMEDIES AFTER
CONSULTATION WITH LEGAL COUNSEL OF THEIR RESPECTIVE CHOICE.
4. REVIEW OF PROPERTY; CONTINGENCIES; CONTINGENCY PERIOD.
4.1 SELLER'S DELIVERIES. Seller shall within fifteen (15) days
after the Effective Date deliver to Buyer copies of the following (collectively,
the "Review Materials"), if any, which are available to Seller:
(a) All plans and specifications related to any civil,
landscape or site plans for the Property;
(b) All entitlement documents and correspondence;
(c) Surveys of any nature;
(d) Mitigation agreements with any governmental agency, and
any traffic studies for this site or surrounding properties;
(e) Zoning agreements with Multnomah County or the City of
Portland;
(f) Phase I or Phase II environmental assessments;
(g) Geotechnical or soils reports; and
(h) Wetlands reports.
Seller shall deliver to Buyer any new Review Materials obtained by Seller within
seven (7) days of Seller's obtaining possession thereof.
4.2 BUYER'S REVIEW. Seller shall provide Buyer and its
authorized agents and consultants with access to and entry upon the Property,
from the Effective Date to the earlier of Closing or termination of this
Agreement to inspect each and every part thereof to determine its present
condition, and, at Buyer's sole cost and expense, to prepare such reports, tests
and studies, including without limitation, any tests, geological reports,
surveys, hazardous/toxic materials investigations and other physical
investigations of, on, or in the Property. Buyer shall indemnify and hold
harmless the Seller from any mechanics or materialmen's liens filed against the
Property as a result of Buyer's entry upon the Property in accordance with this
Section 4.2. If Buyer wishes to engage in any testing that will damage or
disturb any portion of the Property, including, without limitation,
environmental studies, Buyer shall obtain Seller's prior written consent
thereto, which shall not be unreasonably withheld or delayed. Buyer shall
indemnify, hold harmless and defend Seller from any and all liabilities, claims,
liens, costs and expenses, including without limitation reasonable attorneys'
fees and costs, arising from or relating to Buyer's entry upon the Property.
Buyer shall repair any damage to the Property caused by any such tests or
investigations, and shall indemnify and defend Seller (except where such claim
results from an act or omission of Seller) from any and all liabilities, claims,
costs and expenses, including without limitation, reasonable attorneys' fees and
costs resulting from such testing or studies. The indemnification obligations in
this paragraph shall survive Closing or the termination of this Agreement.
4.3 FEASIBILITY CONTINGENCIES. The obligations of Buyer under
this Agreement and consummation of Closing are, at Buyer's option and in its
sole and complete discretion, subject to the complete satisfaction or waiver, on
or before expiration of the Feasibility Contingency Period (as defined in
Section 4.4 of this Agreement), of the following contingencies (individually and
collectively, the "Feasibility Contingencies"): (i) the Property and its
physical condition, zoning and land use restrictions, and all systems,
utilities, and access rights pertaining to the Property are suitable in every
respect for Buyer's intended use; (ii) all permits, approvals and licenses,
including, without limitation, final plat approval, building permit, any
required shoreline permit, a determination of non-significance, and any other
approval or permit with respect to Buyer's intended development of the Property
("Governmental Approvals") are or will be available with such conditions as are
acceptable to Buyer and that all appeal periods thereto have expired without any
appeal or challenge having been made thereof; (iii) all Review Materials are
acceptable to Buyer in the exercise of Buyer's sole discretion; and (iv) it is
economically feasible for Buyer to own and operate the Property in a manner and
upon terms and conditions satisfactory to Buyer. Buyer may, in Buyer's sole
discretion, terminate this Agreement at any time by written notice to Seller if
Buyer determines that the Feasibility Contingencies set forth in this Section
4.3 will not be satisfied by the expiration of the Feasibility Contingency
Period. If Buyer fails to give notice to Seller that the Feasibility
Contingencies have been satisfied or waived on or before expiration of the
Feasibility Contingency Period, as extended, if at all, as permitted by Section
4.4, Buyer shall be deemed to have terminated this Agreement. If Buyer elects to
terminate this Agreement, Buyer shall return the Review Materials to Seller and
deliver to Seller, for information only, and without warranty or representation
of any kind whatsoever, a copy of any and all plans, studies, reports, permits
and permit applications undertaken by Buyer in connection with its investigation
and analysis of the Property. Upon such termination, the Xxxxxxx Money Note
shall be returned to Buyer, any Extension Deposits paid by Buyer (together with
any accrued interest accrued thereon) shall be paid to Seller and neither party
shall have any further rights or obligations whatsoever arising out of, or in
connection with, this Agreement.
4.4 FEASIBILITY CONTINGENCY PERIOD; EXTENSION. Subject to
extension pursuant to this Section 4.4, Buyer shall have until sixty (60) days
after the Effective Date (the "Feasibility Contingency Period") to determine in
its sole discretion whether the Feasibility Contingencies set forth in Section
4.3 can be waived or removed. Buyer shall have the right to extend the
Feasibility Contingency Period for one one-month extension by depositing with
Escrow Company, on or before the expiration of the initial Feasibility
Contingency Period, the sum of Ten Thousand Dollars ($10,000) (the "Extension
Deposit") for such extension. The Extension Deposit shall be non-refundable
unless Seller is in default or this Agreement is terminated because of
unacceptable title pursuant to Section 5.2 or condemnation pursuant to Section
6.1 and shall apply to the Purchase Price at Closing. If Buyer fails to deposit
the Extension Deposit prior to expiration of the initial Feasibility Contingency
Period, Buyer shall have forty-eight (48) hours after notice thereof from Seller
to pay the Extension Deposit in order to extend the then existing Feasibility
Contingency Period as contemplated herein.
5. TITLE.
5.1 CONVEYANCE. Upon Closing, Seller shall execute and deliver
to Buyer a Statutory Warranty Deed in the form attached hereto as EXHIBIT F (the
"Deed"), conveying fee title to the Property, subject only to the Permitted
Exceptions, if any, approved by Buyer in accordance with Section 5.2.
5.2 TITLE INSURANCE.
(a) At Closing Seller shall furnish to Buyer an ALTA Standard
Coverage Owner's Policy of Title Insurance (the "Policy") issued by
First American Title Insurance Company of Oregon, an Oregon corporation
("Title Company"), insuring Buyer, as holder of fee title to the Real
Property and Improvements, in the amount of the Purchase Price, against
any loss or damage by reason of defect in Seller's title to the
Property, other than the Permitted Exceptions as determined hereunder
and the usual printed exceptions. Seller agrees to cooperate with Title
Company and Buyer in connection with (but at no cost to Seller), and
execute and deliver to Title Company appropriate certifications,
affidavits, and indemnities confirming that Seller has not, prior to
Closing, done anything on or about the Property which would prevent
Title Company from issuing the Policy required hereby or from issuing
Form 103.7 (access), 116.1 (land same as survey), 123.1 (zoning)
endorsements or a contiguity endorsement.
(b) Within ten (10) days after the Effective Date, Seller
shall furnish to Buyer, from Title Company, a preliminary title report
showing the condition of title to the Property, together with copies of
all exceptions listed therein (the "Title Report"). Buyer will have ten
(10) days from receipt of the Title Report to review the Title Report
and to notify Seller, in writing, of Buyer's disapproval of any
exceptions shown in the Title Report. Those exceptions not objected to
by Buyer are referred to herein as the "Permitted Exceptions." Zoning
ordinances, building restrictions, taxes due and payable for the
current tax year, and reservations in federal patents and state deeds
shall be deemed Permitted Exceptions. If Buyer notifies Seller of
disapproval of any exceptions, Seller shall have fifteen (15) days
after receiving the disapproval notice to either remove the exceptions
or provide Buyer with reasonable assurances of the manner in which the
exceptions will be removed before the Closing Date. If Seller does not
remove the exceptions or provide Buyer with such assurances, Buyer may
terminate this Agreement by written notice to Seller given within ten
(10) days after expiration of such fifteen (15) day period, in which
event the Xxxxxxx Money shall be refunded to Buyer and this Agreement
shall be null and void.
5.3 SURVEY. On or before expiration of the Feasibility
Contingency Period, Buyer shall obtain, at Buyer's cost, a currently dated and
certified ALTA/ACSM survey of the
Property (the "Survey"), prepared by a registered Oregon land surveyor, setting
forth (a) the legal description of the Property; (b) the location of all
improvements on the Property (including without limitation, light standards and
utility poles and vaults, culverts, curb cuts, driveways, signs, etc.), and all
"setback" or building lines and other restrictions in respect thereof that are
of record or that have been established by an applicable zoning or building code
or ordinance, and the Net Useable Area of the Land; (c) the location of all
easements and rights-of-way on the Property, identifying each by a recorded
document number; (d) all encroachments of improvements onto the Property from
adjoining property, and all encroachments of improvements from the Property onto
adjoining property or upon or over any such "setback" or building lines; (e)
access to the Property from a public street or highway; (f) a vicinity map
showing the property surveyed in reference to nearby highways and major street
intersections, including any fire hydrants located within three hundred feet of
any portion of the Property boundary; and (g) flood zone designation (with
proper annotation based on Federal Flood Insurance Rate Maps or state or local
equivalent by scaled map location and graphic plotting only). The plat or map of
such survey must bear the name, address and signature of the surveyor who made
the survey, his official seal and license number, the date of the survey and the
caption "ALTA/ACSM Land Title Survey" with the following certification:
To: Opus Northwest, L.L.C., Gardenburger, Inc.
and First American Title Insurance Company
This is to certify that this map or plat and the survey on
which it is based were made (i) in accordance with the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys," jointly established and adopted by ALTA and ACSM in
1992, and (ii) pursuant to the accuracy standards (as adopted
by ALTA and ACSM and in effect on the date of this
certification) of an "urban survey"; and that there are no
improvements, encroachments or uses except as shown thereon;
and that the area represented for the land is correct.
6. INTERIM ACTIONS.
6.1 CONDEMNATION. In the event that the Property, or any part
thereof, is or becomes the subject of a condemnation proceeding prior to
Closing, then Buyer may elect either to (i) terminate this Agreement, in which
event the Xxxxxxx Money (and interest accrued thereon) shall be returned to
Buyer and all rights and obligations of the parties hereunder shall cease, or
(ii) proceed to consummate and Close the purchase of the Property hereunder, in
which event the Purchase Price for the Property, shall be reduced by the total
of any awards or other proceeds received by Seller at or prior to Closing with
respect to any such condemnation proceeding; whereupon, at Closing, Seller shall
assign to Buyer all rights of Seller in and to any awards or other proceeds
payable by reason of any such condemnation proceeding. Seller agrees to notify
Buyer in writing of any condemnation proceedings within five (5) days after
Seller learns thereof.
6.2 DEVELOPMENT APPROVALS. So long as this Agreement remains
in effect, Buyer shall have the exclusive right to pursue and obtain all
necessary approvals for developing the Property. Seller hereby grants to Buyer
the right to (i) enter into discussions and negotiations regarding the Property
with all governmental authorities having jurisdiction, and (ii) apply for,
prosecute, participate in and/or cause to issued and finally approved any
permit, development agreement, variance or conditional use request, binding site
plan, local improvement district, or other approval which may be required
incident to Buyer's planned development. Seller shall reasonably cooperate with
Buyer in connection with obtaining such governmental approvals, which
cooperation may include execution and delivery of applications, agreements,
approvals, licenses, plans, permits and other instruments and assurances as may
be required by Buyer to develop the Property. Notwithstanding anything herein to
the contrary, Buyer shall not irrevocably commit Seller or the Property to any
rezone, dedication, change of comprehensive plan designation, development
agreement, local improvement district, or other binding contractual, financial
or governmental restriction or obligation, without Seller's prior written
consent, which shall not be unreasonably withheld. Seller, however, shall give
its consent to any financial obligation which is fully paid in advance by Buyer,
or which is secured by cash deposit or letter of credit furnished by Buyer.
7. CLOSING.
7.1 ESCROW. "Closing" and any of its noun or verb variants
shall mean the date the deed for the Property from Seller to Buyer is recorded
and Seller is entitled to the use of Buyer's funds. Closing shall occur through
an escrow (the "Escrow") in the Portland, Oregon office of Escrow Company on or
before that date (the "Closing Date") which is not more than thirty (30) days
after Buyer's notice to Seller of satisfaction or waiver of the Feasibility
Contingencies. Buyer and Seller shall deposit with Escrow Company all
instruments and monies necessary to complete the Closing in accordance with this
Agreement, including all instructions and closing statements not inconsistent
herewith.
7.2 PRORATIONS. General real property taxes for the current
year, rents, water, and other utilities shall be prorated as of the Closing. All
assessments against the Property shall be paid in full by Seller at Closing.
Seller shall also be responsible for any taxes or other charges that may be
assessed against the Property based on the fact, if at all, that it has been
classified or specially zoned for farm or forest use on the tax rolls for years
prior to the year in which Closing occurs and Seller will pay any such taxes or
charges if and when they become due.
7.3 POSSESSION. Buyer shall be entitled to possession on
Closing.
7.4 COSTS. Seller shall pay the cost of the Policy (except the
cost of extended coverage or endorsements), all excise taxes imposed upon the
sale, and one-half (1/2) of the Escrow Company's escrow fee. Buyer shall pay the
cost of recording the Deed and the Deed of Trust, the cost of the policy in
excess of the cost of ALTA standard owner's coverage and any endorsements to the
Policy required by Buyer, and one-half (1/2) of the Title Company's escrow fee.
7.5 SELLER'S DELIVERIES TO ESCROW.
On or before closing, Seller shall duly execute and deposit
into the Escrow with Escrow Company:
(a) the Deed for the Property in the form and content of
EXHIBIT F attached hereto; and
(b) assignments or other appropriate transfers or conveyances,
in form and content reasonably acceptable to Buyer, of Seller's
interests in the Development Documents and the Review Materials, if
reasonably requested by Buyer.
7.6 BUYER'S DELIVERIES TO ESCROW. On or before Closing, Buyer
shall duly execute and deposit into the Escrow with Escrow Company:
(a) the Note; and
(b) the Deed of Trust.
(c) the Down Payment as defined in Section 2(a) of the
Agreement; and
(d) the amount due Seller, if any, after the prorations are
computed in accordance with Section 7.2 of this Agreement.
7.7 ESCROW INSTRUCTIONS. This Agreement is intended by the
parties to set forth the Escrow instructions to Title Company. Nonetheless,
Seller and Buyer agree to execute and deliver to Title Company any additional
instructions requested by Escrow Company for the purpose of consummating this
transaction, provided that any such additional instructions are not inconsistent
herewith.
7.8 LIABILITIES NOT ASSUMED. Seller shall be responsible for
all claims arising out of or in connection with the Sale Property of any nature,
existing or accrued as of Closing, or arising out of any acts or omissions of
Seller occurring prior to Closing. Buyer is not to be deemed to be a successor
of Seller, it being understood that Buyer is acquiring only the Property and
except as otherwise expressly herein provided, Buyer has not and does not hereby
assume or agree to assume nor shall Buyer be deemed to have assumed any
liability whatsoever of Seller under any contract, agreement, indenture or any
other document to which Seller is a party or by which Seller is or may be bound
or which in any manner affects the Sale Property or any part thereof except as
specifically set forth herein or in any of the Closing documents, and Seller
agrees to defend, hold harmless and indemnify Buyer with respect to any such
claim, expense or liability which Buyer has not agreed to assume.
8. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer that the following facts are true as of the date of Seller's
execution hereof and as of Closing, or as of such other date as may be set forth
herein:
8.1 ORGANIZATION, STANDING, AUTHORITY. Seller is a corporation
organized under the laws of the State of Oregon and qualified to do business
within the State of Oregon. Seller has the legal power, right, and authority to
enter into this Agreement and the instruments referred to herein and to
consummate the transactions contemplated herein. All requisite corporate action
has been taken by Seller in connection with entering into this Agreement, the
instruments referred to herein, and the consummation of the transactions
contemplated herein. The persons executing this Agreement and the instruments
referred to herein on behalf of Seller have the legal power, right and actual
authority to bind Seller to the terms and conditions of this Agreement.
8.2 MARKETABLE TITLE. Seller has, as of the Effective Date,
and will have as of the
Closing Date fee simple title to the Property.
8.3 NO VIOLATIONS AND ACTIONS. To Seller's actual knowledge
the execution, delivery and performance by Seller of its obligations under this
Agreement do not constitute a default under any of the provisions of any law,
governmental rule, regulations, judgment, decree or order by which the Seller is
bound. The execution, delivery and performance by Seller of its obligations
under this Agreement do not constitute a default under any of the provisions of
any contract to which the Seller is a party or by which the Seller is bound or,
if Seller is not an individual, by the Seller's declaration of trust,
certificate of incorporation, bylaws, limited liability company operating
agreement, or partnership agreement, as the case may be.
8.4 LIENS. All persons and entities supplying labor,
materials, and equipment to the Property at Seller's request have been paid, and
to Seller's actual knowledge there are no claims of liens and there are no
service contracts applicable to the Property.
8.5 ASSESSMENTS. To Seller's actual knowledge, there are no
currently due and payable assessments for public improvements against the
Property, there is no local improvement district or other taxing authority in
the process of formation that would create a lien on the Property and there are
no pending or proposed special assessments against the Property.
8.6 HAZARDOUS MATERIALS. To Seller's actual knowledge, the
Property is not in violation of any federal, state, local or administrative
agency ordinance, law, rule, regulation, order or requirement relating to
environmental conditions or Hazardous Material ("Environmental Laws"). To
Seller's actual knowledge, Seller has not used, manufactured, generated,
treated, stored, disposed of, or released any Hazardous Material on, under or
about the Property or transported any Hazardous Material over the Property. To
Seller's actual knowledge, Seller has not used or removed any storage tank on,
from or in connection with the Property, and, to Seller's actual knowledge,
there are no storage tanks or xxxxx (whether existing or abandoned) located on
under or about the Property, except as may be disclosed by that Phase I
environmental site assessment dated June 21, 1995, prepared by Xxxx and
Associates, Inc., for the Xxxxx Family Partnership. References to Seller's
actual knowledge means the actual knowledge of Xxxxxxx X. Xxxxx, the chief
financial officer of Seller. For the purposes hereof, "Hazardous Materials"
shall mean any substance, chemical, waste or other material which is listed,
defined or otherwise identified as "hazardous" or "toxic" under any federal,
state, local or administrative agency ordinance or law, including without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. xx.xx. 9601 ET SEQ.; the Resource Conservation and Recovery Act,
42 U.S.C. xx.xx. 6901 ET SEQ.; the Federal Water Pollution Control Act, U.S.C.
xx.xx. 1251 ET SEQ.; the Clean Air Act, 42 U.S.C. xx.xx. 7401 ET SEQ.; the
Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 1471 ET SEQ.; Toxic
Substances Control Act, 15 U.S.C. xx.xx. 2601 ET SEQ.; Refuse Act, 33 U.S.C.
xx.xx. 407 ET SEQ.; Emergency Planning and Community Right-To-Know Act, 42
U.S.C. xx.xx. 11001 ET SEQ.; Occupational Safety and Health Act, 29 U.S.C.
xx.xx. 65 ET SEQ., to the extent it includes the emission of any Hazardous
Material and includes any Hazardous Material for which hazard communication
standards have been established; Federal Insecticide, Fungicide, and Rodenticide
Act, Federal Pesticide Act of 1978, 7 U.S.C. xx.xx. 136 ET SEQ.; Federal Safe
Drinking Water Act, 42 U.S.C. xx.xx. 300(f) ET SEQ.; or any similar or analogous
state or local statute or ordinance, or any regulation, order, rule, or
requirement adopted thereunder, as well as any formaldehyde, urea,
polychlorinated biphenyls, petroleum, petroleum product or by-product, crude
oil, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas
usable for fuel or mixture thereof, radon, asbestos, and "source," "special
nuclear" and "by-product" material as defined in the Atomic Energy Act of 1985,
42 U.S.C. xx.xx. 3011 ET SEQ.
8.7 CONTRACTS. Seller has not committed nor obligated itself
in any manner whatsoever to sell the Property to any person other than Buyer.
Without limiting the generality of the foregoing, no right of first refusal
regarding the Property exists under the organizational documents of Seller or
under any separate agreement by which Seller may be bound. Seller will not,
prior to Closing, offer to or enter into any backup or contingent option or
other agreement to sell the Property to any other person.
8.8 LEASES. There are no existing leases, tenancies, rental
agreements or occupancy or use agreements affecting all or any portion of the
Property.
8.9 CLOSING CONTINGENCIES. Buyer's obligation to Close this
transaction shall be further conditioned upon all of Seller's representations
and warranties set forth in Section 8 hereof being true, correct and complete as
of the Closing.
The representations and warranties made by Seller shall be
true and correct as of the date hereof and shall be deemed automatically
reaffirmed on the Closing Date as true and correct. Buyer's rights to enforce
such representations and warranties and covenants shall survive the Closing and
such rights to enforce shall not be merged into any documents delivered by
Seller at Closing. Seller shall indemnify, defend and hold Buyer harmless from
and against any cause, claim, loss, damage or expense, including attorneys'
fees, which Buyer suffers as a result of a breach of the representations,
warranties and covenants contained in this Agreement. If this transaction fails
to Close due to failure of the condition set forth in this Section 8.9, then the
Xxxxxxx Money shall be returned to Buyer.
9. BUYER'S REPRESENTATIONS AND WARRANTIES. In addition to other
representations herein, Buyer represents and warrants to Seller that:
9.1 POWER AND AUTHORITY. Buyer is a limited liability company
organized and validly existing under the laws of the State of Delaware and
qualified to do business in the State of Oregon, and execution of this Agreement
by Buyer and consummation of the transactions contemplated herein has been duly
authorized by Buyer's members and no further action is necessary on the part of
Buyer to make this Agreement fully and completely binding upon Buyer in
accordance with its terms. The persons executing this Agreement and the
instruments referred to herein on behalf of Buyer have the legal power, right,
and actual authority to bind Buyer to the terms and conditions of this
Agreement.
9.2 NO VIOLATIONS AND ACTIONS. The execution, delivery and
performance by Buyer of its obligations under this Agreement do not constitute a
default under any of the provisions of any law, governmental rule, regulations,
judgment, decree or order by which the Buyer is bound, or by any of the
provisions of any contract to which the Buyer is a party or by which the Buyer
is bound, or by the Buyer's certificate of incorporation, operating agreement,
or other organizational documents, as the case may be.
The representations and warranties made by Buyer shall be true and
correct as of the date hereof and shall be deemed automatically reaffirmed on
the Closing Date as true and correct. Seller's rights to enforce such
representations and warranties and covenants shall survive the Closing and such
rights to enforce shall not be merged into any documents delivered by Buyer at
Closing. Buyer shall indemnify, defend and hold Seller harmless from and against
any cause, claim, loss, damage or expense, including attorneys fees, which
Seller suffers as a result of a breach of the representations, warranties and
covenants contained in this Agreement.
10. MISCELLANEOUS.
10.1 GENERAL PROVISIONS. This is the entire agreement of the
parties with respect to the Property and supersedes all prior written or oral
agreements or understandings. This Agreement may be modified only in writing
signed by both parties. This Agreement shall be construed according to the laws
of the State of Oregon. Paragraph headings are for convenience only and shall
not be deemed a part of this Agreement for any purpose. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identification of the person or persons, firm or
firms, corporation or corporations may require. The parties have been
represented by their respective legal counsel in connection with negotiation of
this Agreement, and accordingly waive the rule of construction that this
Agreement shall be construed against its drafter. The word "person" shall mean
an individual, firm, association, corporation, limited liability company,
general or limited partnership, trust, or any other form of business or legal
entity. Whenever the adverbs "herein," "hereunder," "hereto," "hereinafter,"
etc., appear herein, they shall be deemed to mean and refer to this Agreement in
its entirety and not to any specific paragraph or section hereof. If the date
for any performance under this Agreement falls on a weekend or holiday, the time
shall be extended to the next business day. "Business day" means a day that
national banks and Title Company are not closed.
10.2 NOTICES. Any demand, request or notice which either party
hereto desires or may be required to make or deliver to the other shall be in
writing and shall be deemed given upon receipt (including by confirmed
facsimile), or when delivered by private courier service (such as Federal
Express), or three days after being deposited in the United States Mail in
registered or certified form, return receipt requested, addressed as follows:
If to Seller: Gardenburger, Inc.
Attn: Xx. Xxxxxxx X. Xxxxx
0000 XX Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: Miller, Nash, Wiener, Hager & Xxxxxxx LLP
Attn: Xxxxx X. Xxxxxxx
3500 U.S. Bancorp Tower
000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to Buyer: Opus Northwest, L.L.C.
Attn: Xxxx Xxxxxxx, Vice President
000 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Brain PLLC.
Attn: Xxxxxxx X. Xxxxxxx, P.S.
56th Floor, Key Tower
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
and to: Opus U.S. Corporation
Attn: Xxxx Xxxxxxxxx, Esq.
800 Opus Center
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Either party may change its address which is not a post office box for purposes
of notices by giving notice to the other in the manner herein prescribed.
10.3 ATTORNEYS' FEES. In the event any litigation ensues
between Opus and Gardenburger, Inc. arising out of this Agreement, the
prevailing party in any such action shall be entitled to recover from the
nonprevailing party, the prevailing party's reasonable attorneys' fees and
costs, including in connection with appeals.
10.4 COMMISSIONS. Seller warrants and represents to Buyer that
except for Xxxx Xxxxx and Associates, Inc. (collectively "Broker ") no broker or
finder has been engaged by it in connection with the transaction contemplated by
this Agreement. Buyer warrants and represents to Seller that no broker or finder
has been engaged by it in connection with the transaction contemplated by this
Agreement. Seller shall, upon closing, pay and indemnify, and hold Buyer
harmless from and against commission based on the Purchase Price to Broker. In
the event any other claims for additional brokers' or finders' fees or
commissions are made in connection with the negotiation, execution, or
consummation of this Agreement, then Buyer shall indemnify, hold harmless, and
defend Seller from and against such claims if they are based upon any statement,
representation or agreement made by Buyer, and Seller shall indemnify, hold
harmless, and defend Buyer if such claims shall be based on any statement,
representation or agreement made by Seller.
10.5 ASSIGNMENT. Buyer may not assign all or any of its
interest in this Agreement without Seller's prior written consent, which shall
not be unreasonably withheld. If Buyer assigns its interest in this Agreement to
any other person, it will not be released from liability hereunder and will
cosign the Note with the Buyer's assignee.
10.6 MEMORANDUM. This Agreement shall not be recorded. Seller
and Buyer shall execute a short form Memorandum hereof in the form of EXHIBIT G.
Buyer shall retain possession of the Memorandum and may, at Buyer's option,
record it. If Buyer relinquishes its right to purchase the Property at any time,
Buyer shall execute and deliver to Seller a recordable release of the
Memorandum.
10.7 EXHIBITS. All Exhibits attached hereto are incorporated
herein by this reference.
10.8 ADDITIONAL DOCUMENTS. Each party agrees to take such
action and to execute, acknowledge and deliver any and all documents and
instruments as may be desired by the other party more effectively to carry out
the purposes of this Agreement.
10.9 ACCEPTANCE OF AGREEMENT. If Seller does not return to
Buyer, four fully executed counterparts of this Agreement on or before 5:00 p.m.
on March 9, 1998, this Agreement shall be null and void and Seller
shall no longer have any power or authority to accept this Agreement. Any such
assignment shall not relieve Buyer from its obligations under this Agreement. If
Buyer makes such assignment, it shall unconditionally guarantee the full and
punctual payment of the Note.
10.10 EFFECTIVE DATE. "Effective Date" means the date this
Agreement has been executed by Seller, and Buyer has received two (2)
fully-executed counterparts thereof.
10.11 ORS 93.040(1). THIS INSTRUMENT WILL NOT ALLOW USE OF THE
PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS
AND REGULATIONS. 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 TO DETERMINE ANY LIMITS
ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930.
10.12 ZONING. 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 REGULATIONS, WHICH IN FARM OR FOREST ZONES, MAY NOT
AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE. 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.
BUYER:
OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx
Vice President
AGREED AND ACCEPTED this 9th day of March, 1998.
SELLER:
GARDENBURGER, INC.,
an Oregon corporation
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Its: Executive VP and CFO
---------------------------
LIST OF EXHIBITS
Exhibit A: Land
Exhibit B: Drawing
Exhibit C: Deed of Trust Note
Exhibit D: Deed of Trust Promissory Note
Exhibit E: Xxxxxxx Money Note
Exhibit F: Form of Statutory Warranty Deed
Exhibit G: Form of Recordable Memorandum
EXHIBIT A
TO
PURCHASE AND SALE AGREEMENT
LAND
EXHIBIT B
TO
PURCHASE AND SALE AGREEMENT
DRAWING
EXHIBIT C
TO
PURCHASE AND SALE AGREEMENT
DEED OF TRUST NOTE
--------------------------------------------------------------------------------
N.E. 000xx & Xxxxxxx Xxx
Xxxxxxxx, XX
DEED OF TRUST NOTE
$________________ _______________, 1998
1. PAYMENT; INTEREST CALCULATIONS. FOR VALUE RECEIVED, the undersigned ("Maker")
promises to pay in lawful money of the United States, on or before October 31,
1998, to the order of GARDENBURGER, INC., an Oregon corporation ("Holder"), at
0000 X.X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx 00000 or such other place
as Holder may designate the sum of
________________________________________________ Dollars ($____________). Every
payment received with respect hereto shall be applied, in any order that may be
determined by Holder in its sole discretion, to sums due under this Note,
including, without limitation: (a) late charges; (b) expenses paid or funds
advanced by Holder with interest thereon at the Default Rate when applicable (as
hereinafter defined); (c) any other premiums which may remain unpaid; (d)
accrued interest on the principal balance from time to time remaining unpaid;
and (e) the principal balance hereunder.
2. WAIVER. To the extent permitted by law, each and every maker, surety,
endorser or signator to this Note, in whatever capacity, hereby waives
presentment, demand, protest, notice of dishonor and all other notices, and
agrees that Holder may exercise its rights hereunder in any order and at any
time, and may, without notice to or consent of any such person, and without in
any way diminishing the obligations of any such person: (a) deal with any such
person with reference to this Note by way of forbearance, extension,
modification, compromise or otherwise, (b) extend, release, surrender, exchange,
compromise, discharge or modify any right or obligation secured by or provided
by the Deed of Trust securing this Note (the "Deed of Trust") or any other
instrument securing this Note, or (c) take any other action which Holder may
deem reasonably appropriate to protect its security interest in the property
securing this Note (the "Trust Property").
3. DEFAULT; DEFAULT RATE. Time is material and of the essence hereof. Each of
the following shall be an Event of Default under this Note: (a) failure of Maker
to make any payment of principal and/or interest or any other payment required
by the provisions of this Note or of any instrument securing this Note on the
date such payment or payments are due; (b) failure of Maker to perform any other
provision of this Note or of any instrument securing this Note; or (c) falsity
in any material respect of the warranties in the Deed of Trust or of any
representation, warranty or information furnished by Maker or its agents to
Holder in connection with the extension of credit evidenced by this Note (the
"Loan"). Upon the occurrence of any Event of Default, any sum not paid as
provided in this Note or in any instrument securing this Note, shall at the
option of Holder, without notice, bear interest from such due date at the rate
of eighteen percent (18%) per annum (the "Default Rate") or the maximum rate of
interest permitted by law, whichever is the lesser, and, at the option of
Holder, if the default continues three (3) business days after Holder's delivery
of notice of default, the unpaid balance of principal, accrued interest, plus
any other sums due under this Note, or under any instrument securing this Note
shall at once become due and payable, without notice, and shall bear interest at
the Default Rate. 4. PREPAYMENT RESTRICTIONS, CHARGES. There are no restrictions
or penalties for partial or complete prepayment of the indebtedness owing under
this Note.
5. ACKNOWLEDGMENTS REGARDING DEFAULT RATE, LATE CHARGES AND PREPAYMENT
CHARGES.
(a) Maker acknowledges and agrees that (i) a default in making the
payments herein agreed to be paid when due will result in
Holder incurring additional expense in servicing the Loan,
loss to Holder of the use of the money due, and in frustration
to Holder in meeting its other commitments, (ii) if for any
reason it fails to pay any amounts due hereunder, Holder shall
be entitled to damages for the detriment caused thereby, but
that it is extremely difficult and impractical to ascertain
the extent of such damages, and (iii) the Default Rate and the
late charge described in this Note are a reasonable estimate
of such damages.
(b) Maker represents that it is a knowledgeable real estate
investor and fully understands the effect of the charges,
waivers and agreements contained above. Maker acknowledges and
agrees that the making of the loan by Holder at the interest
rate and with the other terms described herein is sufficient
consideration for such charges, waivers and agreements, and
that Holder would not make this loan on these terms without
such charges, waivers and agreements.
6. EXPENSES AND ATTORNEYS' FEES. If Holder refers this Note to an attorney for
collection or seeks legal advice following a default alleged in good faith under
the Note; if Holder is the prevailing party in any litigation instituted in
connection with the Note; or if Holder or any other person initiates any
judicial or nonjudicial action, suit or proceeding in connection with Note or
the security therefor, and an attorney is employed by Holder to (a) appear in
any such action, suit or proceeding, or (b) reclaim, seek relief from a judicial
or statutory stay, sequester, protect, preserve or enforce Holder's interest in
the Note, the Deed of Trust, or any other security for the Note (including but
not limited to proceedings under federal bankruptcy law, in eminent domain,
under probate proceedings, or in connection with any state or federal tax lien),
then in any such event, Maker shall pay attorney's fees and costs and expenses
incurred by Holder and/or its attorney in connection with the above-mentioned
events and any appeals related to such events, including but not limited to
costs incurred in searching records, the cost of title reports, the cost of
appraisals, and the cost of surveyor's reports. If not paid within ten days
after such fees, costs and expenses become due and written demand for payment is
made upon Maker, such amount may, at Holder's option, be added to the principal
of the Note and shall bear interest at the Default Rate.
7. NO USURY. In no event shall any payment of interest or any other sum payable
hereunder both (a) violate the usury laws of the state in which the Trust
Property is located and (b) allow Maker to bring a claim for usury or raise
usury as a defense in any action on this Note. If it is established that both
(a) and (b) have occurred, and any payment exceeding lawful limits has been
received, Holder shall refund such excess or, at its option, credit the excess
amount to principal, but such payments shall not affect the obligation to make
periodic payments required herein.
8. SECURITY. The indebtedness evidenced by this Note is secured by the Deed of
Trust of even date and may be secured by other security instruments.
9. DUE ON SALE OR TRANSFER. Except as set forth in Section 10, this Note is
personal to Maker and not assignable. In making the Loan, Holder has relied on
Maker's credit, Maker's interest in the Trust Property, and the financial market
conditions at the time the Loan is made. Subject to Section 10, in the event of
a sale, conveyance, transfer or encumbrance of the title to or possession of all
or part of the Trust Property, directly or indirectly, either voluntarily,
involuntarily or by operation of law, without the prior written consent of
Holder (which consent may be withheld at Holder's sole discretion), Holder may
declare the entire balance of the indebtedness evidenced by this Note
immediately due and payable. Without limiting the generality or effect of the
foregoing, waiver by Holder of its right to accelerate the indebtedness upon any
transfer or contract to transfer, or to require satisfaction of the conditions
set forth in this paragraph, shall not be deemed a waiver by Holder of its right
to accelerate the indebtedness upon any other transfer or contract to transfer
or of its right upon such transfer or contract to transfer to require
satisfaction of the conditions set forth above in this paragraph. For the
purpose of, and without limiting the generality of the foregoing, but subject to
Section 10, the occurrence at any time of any of the following events, without
Holder's prior written consent, shall be deemed to be a transfer of title to the
Trust Property:
(i) Any sale, conveyance, assignment or other transfer of, or the
grant of a security interest in, all or any part of the legal
and/or equitable title to the Trust Property; or
(ii) Any sale, conveyance, assignment or other transfer of, or the
grant of a security interest in, any share of stock of Maker
to other than an affiliate of Maker.
10. PERMITTED TRANSFERS AND SUBORDINATION. Notwithstanding anything in Section 9
to the contrary, Maker may, without Holder's consent, assign its interest in the
Trust Property to any affiliate of Maker, including but not limited to, a
limited liability company or other legal entity controlled by Maker or an
affiliate of Maker. Such assignment shall NOT release Maker or its successor in
interest from personal liability for payment and performance of the terms and
conditions of this Note. "Affiliate" means a person or entity controlling,
controlled by or under common control with Maker.
11. COMMERCIAL PURPOSE. The obligation evidenced by this Note is exclusively for
commercial or business purposes.
12. GOVERNING LAW. The law of the state of Oregon shall govern the validity,
interpretation, construction and performance of this Note.
13. SUCCESSORS AND ASSIGNS. Whenever used herein, the words "undersigned",
"Maker" and "Holder" shall be deemed to include their respective heirs, personal
representatives, successors and assigns.
BUYER:
OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company
By:
--------------------------------------
Xxxx Xxxxxxx
Vice President
EXHIBIT D
TO
PURCHASE AND SALE AGREEMENT
FORM OF DEED OF TRUST
--------------------------------------------------------------------------------
Recorded at the Request of
and after Recording Return to:
Xxxxx X. Xxxxxxx
Miller, Nash, Wiener, Hager & Xxxxxxx LLP
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
N.E. 000xx & Xxxxxxx Xxx
Xxxxxxxx, XX
DEED OF TRUST
THIS DEED OF TRUST made this ______ day of _____________, 199___, is
between OPUS NORTHWEST, L.L.C., a Delaware limited liability company ("Trustor")
and FIRST AMERICAN TITLE INSURANCE COMPANY OF OREGON ("Trustee"), and
GARDENBURGER, INC., an Oregon corporation ("Beneficiary").
Trustor irrevocably grants, bargains, sells, and conveys to Trustee in
trust for the benefit and security of Beneficiary, with power of sale, that
property in the City of Portland, Multnomah County, Oregon, described on
SCHEDULE A, attached hereto and incorporated herein by reference (the
"Property") together with (a) all buildings and improvements now or hereafter
located thereon, and all appurtenances, easements, right in party walls, water
and water rights, pumps and pumping plants and all shares of stock evidencing
the same; (b) all awards, compensation and settlements in lieu thereof made as a
result of the taking by power of eminent domain of the whole or any part of the
Property; (c) all interests, estate or other claims, both in law and in equity,
which Trustor now has or may hereafter acquire in the Property; and (d) all
right, title, and interest of Trustor, now owned or hereafter acquired, in and
to any land lying within the right-of-way of any street, open or proposed,
adjoining the Property. The Property and all of the foregoing shall constitute
the "Trust Property". To the extent such Trust Property constitutes personal
property or fixtures, Grantor grants Trustee a security interest in such Trust
Property, together with all proceeds and products thereof, for the benefit of
Beneficiary.
This Deed of Trust is made for the purpose of securing, in such order
of priority as Beneficiary may elect: (a) payment of the indebtedness evidenced
by that certain Deed of Trust Note of even date herewith in the original
principal amount of $_________________________ (the "Note") made by Trustor,
delivered to Beneficiary and payable to its order and any and all modifications,
extensions or renewals thereof, whether hereafter evidenced by the Note or
otherwise; (b) payment of interest on said indebtedness according to the terms
of the Note; (c) payment of all other sums, with interest as herein provided,
becoming due and payable under the provisions hereof to Trustee or Beneficiary;
(d) performance of each and every condition, obligation, covenant, promise and
agreement of Trustor contained herein or in the Note, (e) payment of such
additional sums with interest thereon as may be hereafter advanced by or
borrowed from the Beneficiary, its successors or assigns, by the then record
owner or owners of the Trust Property when evidenced by another promissory note
or notes which are by the terms thereof secured by this Deed of Trust. To the
extent permitted by law, any sums hereafter advanced by or borrowed from
Beneficiary, its successors or assigns, shall have the same priority as the
original sums advanced by Beneficiary and secured hereby.
TRUSTOR'S COVENANTS AND WARRANTIES. Trustor hereby warrants that: (a)
Trustor is the owner in fee simple absolute of the Property and every part
thereof; (b) the Trust Property is free, and will be kept free, from all liens
and encumbrances, except those of record as of the date hereof and Trustor will
defend the title hereby granted to and in favor of Trustee and Beneficiary as
against all and every person claiming or to claim the same; (c) the loan
proceeds are not for use primarily for personal, family or household purposes;
(d) except in the ordinary course of site work and construction of improvements
in the Trust Property, Trustor will not use, generate, manufacture, produce,
store, release, discharge, dispose of on, under, or about the Trust Property or
place or permit to be placed on the Trust Property any Hazardous Substances (as
defined below); (e) the Property is zoned for the existing or contemplated use
of the Property; (f) there are no actions, lawsuits, or other proceedings
pending or threatened against or affecting Trustor which might adversely affect
the ability of Trustor to perform its obligations under the Note or other loan
documents, or which might adversely affect the priority of Beneficiary's lien on
the Trust Property; and (g) consummation of the loan and payment of the Note
secured hereby will not conflict with or result in a breach of any law,
regulation or court order applicable to Trustor or the Trust Property. As used
in this Deed of Trust, Hazardous Substance means: (i) any "hazardous waste" as
defined in the Resource Conservation and Recovery Act of 1976 (42 U.S.C. ss.
6901 et seq.), as amended from time to time, and regulations promulgated
thereunder; (ii) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. ss.
9601 et seq.), as amended from time to time, and regulations promulgated
thereunder; (iii) radon, asbestos, polychlorinated biphenyls (PCB's),
explosives, radioactive substances, and material quantities of petroleum
products; (iv) any substance the presence of which on the Trust Property is
regulated by any federal, state or local law relating to the protection of the
environment or public health; and (v) any other material, substance, or waste
that is or becomes regulated or that is or becomes classified as hazardous,
dangerous, or toxic under any federal, state, or local statute, ordinance, rule,
regulation, or law.
A. TRUSTOR AGREES AS FOLLOWS:
1. PAYMENT OF INDEBTEDNESS; PERFORMANCE OF COVENANTS. Trustor shall pay
each and every installment of principal and interest on the Note and all other
indebtedness secured hereby, as and when the same shall become due, and shall
perform and observe all of the covenants, agreements and provisions contained
herein or in the Note.
2. MAINTENANCE; COMPLIANCE; LIENS. Trustor shall: keep the Trust
Property in good condition and repair; comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the Trust Property
or requiring any alteration or improvements to be made thereon; not commit or
permit waste thereon; not commit, suffer or permit any act upon the Trust
Property in violation of law; cultivate, irrigate, fertilize, prune and do all
other acts which from the character or use of the Trust Property may be
reasonably necessary, the specific enumeration herein not excluding the general;
and keep the Trust Property free from all encumbrances, except those accepted by
Beneficiary in writing.
3. HAZARDOUS WASTE AND SUBSTANCES; ENVIRONMENTAL REQUIREMENTS. Trustor
shall keep and maintain the Trust Property in compliance with, and shall not
cause or permit all or any portion of the Trust Property, including groundwater,
to be in violation of any Environmental Law. As used herein, "Environmental Law"
means any federal, state, or local law, statute, ordinance, or regulation
pertaining to Hazardous Substances, health, industrial hygiene, or environmental
conditions, including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 USC xx.xx.
9601-9675, and the Resource Conservation and Recovery Act of 1976, as amended,
42 USC xx.xx. 6901-6992. Trustor shall promptly notify Beneficiary of its
receipt of any notice of (a) a violation of any such Environmental Law, standard
or regulation; and (b) all claims made or threatened by any third party against
Trustor or the Trust Property relating to any loss or injury resulting from any
such Hazardous Substances. Trustor shall hold Beneficiary, its directors,
officers, employees, agents, successors, and assigns, harmless from, indemnify
them for, and defend them against any and all losses, damages, liens, costs,
expenses, and liabilities directly or indirectly arising out of or attributable
to any violation of any Environmental Law, any breach of Trustor's covenants and
warranties set forth above, or the use, generation, manufacture, production,
storage, release, threatened release, discharge, disposal, or presence of a
Hazardous Substance on, under, or about the Trust Property, including without
limitation the costs of any required repair, cleanup, containment, or
detoxification of the Trust Property, the preparation and implementation of any
closure, remedial or other required plans, attorneys' fees and costs (including
but not limited to those incurred in any proceeding and in any review or
appeal), fees, penalties, and fines. This indemnity shall survive the
reconveyance of this Deed of Trust, or the extinguishment of the lien of this
Deed of Trust by foreclosure or action in lieu thereof.
4. CONSTRUCTION AND CASUALTY. Trustor shall complete, in good and
workmanlike manner, any building, structure or improvement being built or about
to be built on the Property and shall promptly restore any such building,
structure or improvement thereon which may be damaged or destroyed.
5. INSURANCE.
(a) Property and Other Insurance. Trustor shall obtain and
maintain in full force and effect during the term of this Deed of Trust all risk
property insurance, in an amount not less than the full replacement cost of all
improvements, including the cost of debris removal, and commercial general
liability insurance with limits, coverages, risks insured and waiver of
subrogation clauses acceptable to Beneficiary.
(b) Insurance Companies and Policies. All such insurance:
shall be written by a company or companies acceptable to Beneficiary; shall
contain a beneficiary clause in favor of Beneficiary; shall be satisfactory to
Beneficiary as to form, substance, and, except as specifically designated in
Section A5(a), amount; shall provide for thirty (30) days' prior written notice
of cancellation to Beneficiary; shall contain endorsements specifying that no
act or negligence of Trustor or any occupant, and no occupancy or use of the
Trust Property for purposes more hazardous than permitted by the terms of the
policy will affect the validity or enforceability of such insurance as against
Beneficiary; shall be in full force and effect on the date of this Deed of
Trust; and shall be accompanied by proof of premiums paid for the current policy
year. All such insurance shall be written in amounts sufficient to prevent
Trustor from becoming a co-insurer under the applicable policies.
(c) Blanket Policy. If a blanket policy is issued, a certified
copy of said policy shall be furnished, together with a certificate indicating
that Beneficiary is the insured under said policy in the proper designated
amount.
(d) Notice of Loss. In the event of loss, Trustor shall
immediately notify Beneficiary. Beneficiary may make proof of loss if it is not
made promptly by Trustor.
6. DEFENSE. Trustor shall appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Beneficiary,
or Trustee; and pay all costs and expenses, including cost of evidence of title
and attorneys' fees in a reasonable sum, in any such action or proceeding, or
appeal therefrom, in which Beneficiary or Trustee may appear.
7. TAXES, ASSESSMENTS, AND LIENS. Trustor shall pay before they become
delinquent all taxes and the current installment of assessments levied against
or on account of the Trust Property and shall pay as due all claims for work
done on or for services rendered or material furnished to the Trust Property.
Trustor shall maintain the Trust Property free of any liens having priority over
or equal to the interest of Beneficiary under this Deed of Trust, except for the
lien of taxes and the current installment of assessments not delinquent, and
except as hereinafter otherwise provided. Trustor may withhold payment of any
tax, assessment, or claim in connection with a good faith dispute over the
obligation to pay, so long as Beneficiary's interest in the Trust Property is
not jeopardized. If a lien arises or is filed as a result of nonpayment, Trustor
shall within 15 days after the lien arises or, if a lien is filed, within 30
days after Trustor has notice of the filing, secure the discharge of the lien or
deposit with Beneficiary cash or a sufficient corporate surety bond or other
security satisfactory to Beneficiary in an amount sufficient to discharge the
lien plus any costs, attorneys' fees, or other charges that could accrue as a
result of a foreclosure or sale under the lien. The assessor or tax collector of
the county in which the Trust Property is located is authorized to deliver to
Beneficiary a written statement of the property taxes assessed or owing at any
time.
B. IT IS MUTUALLY AGREED THAT:
1. PROCEEDS OF CONDEMNATION, INJURY TO TRUST PROPERTY. The proceeds of
any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of or damage or injury to all or any portion of the
Trust Property, or for the conveyance in lieu of condemnation thereof, are
hereby assigned to and shall be paid to Beneficiary. In addition, all causes of
action, whether accrued before or after the date of this Deed of Trust, and all
claims for damages or injury to the Trust Property or any part thereof,
including causes of action arising in tort or contract and for fraud or
concealment of a material fact, are hereby assigned to Beneficiary and the
proceeds thereof shall be paid to Beneficiary. Beneficiary may elect, in its
sole discretion, to apply such sums to the indebtedness secured by this Deed of
Trust, or to release such sums or any part thereof.
2. NON-WAIVER. No waiver of any default on the part of Trustor or
breach of any of the provisions of this Deed of Trust shall be considered a
waiver of any other or subsequent default or breach, and no delay or omission in
exercising or enforcing the rights and powers herein granted shall be construed
as a waiver of such rights and powers. No exercise or enforcement of any rights
or powers hereunder shall be held to exhaust such rights and powers, and every
such right and power may be exercised from time to time.
3. RECONVEYANCE. Upon (a) written request of Beneficiary stating that
all sums secured hereby have been paid, (b) surrender of this Deed of Trust and
the Note to Trustee for cancellation and retention and (c) payment of its fees,
Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matter or facts shall be conclusive proof
of the truthfulness thereof. The grantee in such reconveyance may be described
as "the person or persons legally entitled thereto."
4. BENEFICIARY'S RIGHT TO CURE AND DEFEND. Should Trustor fail to make
any payment or do any act as provided in this Deed of Trust or in the Note,
Beneficiary or Trustee may, but shall not obligated to, make or do the same in
such manner and to such extent as either may deem necessary to protect the
security hereof, Beneficiary or Trustee being authorized to enter upon the Trust
Property for such purpose. Beneficiary and/or Trustee may at any time, prior to
full payment of all sums secured by this Deed of Trust: (a) appear in and defend
any action or proceeding purporting to affect the security hereof or the rights
or powers of Beneficiary or Trustee; (b) pay, purchase, contest or compromise
any encumbrance, charge or lien which in the judgment of either appears to be
prior or superior hereto; and (c) in exercising any power conferred by this Deed
of Trust, pay necessary expenses, employ counsel and pay reasonable fees
therefor (including fees on appeal). Trustor agrees to repay immediately and
without demand all sums so expended by Beneficiary or Trustee with interest from
date of expenditure at the Default Rate as herein provided.
5. EVENTS OF DEFAULT. Any of the following events shall, after Trustor
receives written notice of such event and is provided 10 days from the date of
such notice to cure such default, be deemed an event of default under this Deed
of Trust:
(a) Default shall be made in the payment of any installment of
principal or interest on the Note or any other sum secured hereby when due,
including but not limited to the failure to pay the unpaid principal and accrued
interest due under the Note on or before its October 31, 1998, maturity date.
(b) Trustor shall file a voluntary petition in bankruptcy or
such a petition shall be filed against Trustor and is not dismissed within 30
days after the date of filing; or if Trustor shall file any petition or answer
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors; or shall seek or consent to
or acquiesce in the appointment of any trustee, receiver or liquidator of
Trustor, or of all or any part of the Trust Property, or of any or all of the
royalties, revenues, rents, issues or profits thereof, or shall make any general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due; or
(c) A court of competent jurisdiction shall enter an order,
judgment or decree approving a petition filed against Trustor seeking any
reorganization, dissolution or similar relief under any present or future
federal, state or other statute, law or regulation relating to bankruptcy,
insolvency or other relief for debtors, and such order, judgment or decree shall
remain unvacated and unstayed for an aggregate of thirty (30) days (whether or
not consecutive) from the first date of entry thereof; or any trustee, receiver
or liquidator of Trustor or of all or any part of the Trust Property, or of any
or all of the royalties, revenues, rents, issues or profits thereof, shall be
appointed without the consent or acquiescence of Trustor and such appointment
shall remain unvacated and unstayed for an aggregate of thirty (30) days
(whether or not consecutive); or
(d) A writ of execution or attachment or any similar process
shall be issued or levied against all or any part of or interest in the Trust
Property, or any judgment involving monetary damages shall be entered against
Trustor which shall become a lien on the Trust Property or any portion thereof
or interest therein and such execution, attachment or similar process or
judgment is not released, bonded, satisfied, vacated or stayed within thirty
(30) days after its entry or levy.
6. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any event of
default and at any time thereafter, Beneficiary may exercise any one or more of
the following rights and remedies:
(a) The right at its option by notice to Trustor to declare
the entire indebtedness secured hereby immediately due and payable.
(b) With respect to all or any part of the Trust Property, the
right to foreclose by judicial foreclosure in accordance with applicable law.
(c) The right to have the Trustee sell the Trust Property by
advertisement and sale in accordance with the Deed of Trust Act of the State of
Oregon (ORS 86.705 - 86.795, and hereinafter referred to as the "Act"), the
Uniform Commercial Code of the State of Oregon where applicable, and other
applicable law at public auction to the highest bidder. Any person except
Trustee may bid at the Trustee's sale. The power of sale conferred by this Deed
of Trust and the law is not an exclusive remedy and when not exercised,
Beneficiary may foreclose this Deed of Trust as a mortgage. The Trustee is not
obligated to notify any party hereto of a pending sale under any other deed of
trust or of any action or proceeding in which Trustor, Trustee, or Beneficiary
shall be a party, unless such action or proceeding is brought by the Trustee.
(d) With respect to all or any part of the Trust Property that
constitutes personalty, the rights and remedies of a secured party under the
Oregon Uniform Commercial Code.
(e) Subject to any limitations imposed by law, the right to
obtain a deficiency judgment in the event the net sale proceeds of any
foreclosure sale are insufficient to pay the entire unpaid indebtedness secured
hereby.
(f) Beneficiary may have a receiver appointed for the Trust
Property. Beneficiary shall be entitled to the appointment of a receiver as a
matter of right whether or not the apparent value of the Trust Property exceeds
the amount of the indebtedness secured by this Deed of Trust. Employment by
Trustee or Beneficiary shall not disqualify a person from serving as receiver.
Trustor consents to the appointment of a receiver at Beneficiary's option and
waives any and all defenses to such an appointment.
(g) Beneficiary may, either through a receiver or as
lender-in-possession, enter and take possession of all or any part of the Trust
Property and use, operate, manage, and control it as Beneficiary shall deem
appropriate in its sole discretion. Upon request after an event of default,
Trustor shall peacefully relinquish possession and control of the Trust Property
to Beneficiary or any receiver appointed under this Deed of Trust.
(h) Any other right or remedy provided in this Deed of Trust,
the Note, any other agreement between Trustor and Beneficiary, or under law. All
remedies under this Deed of Trust are cumulative and not exclusive. Any
intention to pursue one remedy shall not preclude the exercise of any other
remedy.
7. FORECLOSURE BY POWER OF SALE. Should Beneficiary elect to foreclose
by exercise of the power of sale herein contained, Beneficiary shall notify
Trustee of such election. Upon receipt of such notice from Beneficiary, Trustee
shall cause to be given such Notice of Default as then required by law. Trustee
shall, without demand on Trustor, after lapse of such time as may then be
required by law and after Notice of Sale having been given as required by law,
sell the Trust Property at the time and place of sale fixed by it in such Notice
of Sale, either as a whole, or in separate lots or parcels or items as Trustee
shall deem expedient, and in such order as it may determine, at public auction
to the highest bidder. Trustee shall deliver to such purchaser or purchasers
thereof its good and sufficient deed or deeds conveying the property so sold,
but without any covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including, without limitation, Trustor or Beneficiary, may
purchase at such sale.
8. PROCEEDS OF SALE. If foreclosure is by advertisement and sale under
the Act, the proceeds of the sale shall be applied as set forth in ORS 86.765.
9. EXPENSES AND ATTORNEYS' FEES. If Beneficiary refers the Note to an
attorney for collection or seeks legal advice following a default; if
Beneficiary is the prevailing party in any litigation instituted in connection
with the Note or this Deed of Trust; or if Beneficiary or any other person
initiates any judicial or nonjudicial action, suit or proceeding in connection
with the Note, the indebtedness evidenced thereby or the security therefor
(including, but not limited to, an action to recover possession of the Property
after foreclosure), and an attorney is employed by Beneficiary to (a) prosecute
or appear in any such action, suit or proceeding, or (b) reclaim, seek relief
from a judicial or statutory stay, sequester, protect, preserve or enforce
Beneficiary's interest in the Note or the Deed of Trust (including but not
limited to proceedings under federal bankruptcy law, in eminent domain, or in
connection with any state or federal tax lien), then in any such event, to the
extent allowed by law, Trustor shall pay the attorneys' fees and costs and
expenses incurred by Beneficiary in connection with the above-mentioned events,
including but not limited to costs incurred searching records, the cost of title
or foreclosure reports, and the costs of appraisals, and any appeals related to
such events. Such amounts shall be secured by this Deed of Trust and, if not
paid on demand, shall bear interest at the Default Rate from the date they are
incurred.
10. BINDING EFFECT; INTERPRETATION. This Deed of Trust applies to,
inures to the benefit of, and binds all parties hereto and their heirs,
successors and assigns. The term Beneficiary shall mean the owner and holder,
including pledgees, of the Note secured hereby, whether or not named as
Beneficiary herein. In this Deed of Trust, whenever the context so requires, the
masculine gender includes the feminine and/or neuter, and the singular number
includes the plural. Section headings are for convenience only and shall not be
deemed a part of this Deed of Trust for any purpose. The word "person" shall
mean an individual, firm, association, corporation, limited liability company,
trust, or any other form of business or legal entity. Whenever the adverbs
"herein," "hereunder," "hereto," "hereinafter," etc., appear herein, they shall
be deemed to mean and refer to this Deed of Trust in its entirety and not to any
specific paragraph or section hereof. The word "including" shall be deemed to
mean "including but not limited to."
11. DUE ON SALE OR ENCUMBRANCE.
(a) Except as set forth in Section B11(d) below, the Note
secured by this Deed of Trust is personal to Trustor and not assignable. In
accepting the Note, Beneficiary has relied upon Trustor's credit, Trustor's
interest in the Trust Property, and financial market conditions at the time the
loan is made. In the event of a sale, conveyance, transfer or encumbrance of the
title to or possession of all or part of the Trust Property, directly or
indirectly, either voluntarily, involuntarily or by operation of law, without
the prior written consent of Beneficiary (which consent may be withheld at
Beneficiary's sole discretion), Trustor shall be in default under the Note and
this Deed of Trust and Beneficiary may declare the entire balance of the
indebtedness owing under the Note to be immediately due and payable.
(b) Without limiting the generality or effect of the
foregoing, waiver by Beneficiary of its right to accelerate the loan upon any
transfer or contract to transfer, or to require satisfaction of the conditions
set forth in this Section B11, shall not be deemed a waiver by Beneficiary of
its right to accelerate the indebtedness occurring under the Note upon any other
transfer or contract to transfer or of its right upon such transfer or contract
to transfer to require satisfaction of the conditions set forth above in this
Section B11.
(c) For the purpose of, and without limiting the generality of
the foregoing, except as permitted in Section B11(d), the occurrence at any time
of any of the following events, without Beneficiary's prior written consent,
shall be deemed to be a transfer of title to the Trust Property:
i. Any sale, conveyance, assignment or other transfer of, or
the grant of a security interest in, all or any part of the legal
and/or equitable title to the Trust Property; and
ii. Any sale, conveyance, assignment or other transfer of, or
the grant of a security interest in any of the ownership interests in
Trustor.
(d) Notwithstanding anything in this Section B11 to the
contrary, Trustor may, without Beneficiary's consent, transfer its interest in
the Trust Property to any affiliate of Trustor including a limited liability
company or other legal entity controlled by Trustor or an affiliate. No such
assignment shall release Trustor from personal liability for payment and
performance of the terms and conditions of this Deed of Trust. "Affiliate" means
a person or entity directly or indirectly controlling, controlled by or under
common control with Trustor. No such assignment shall release Trustor from
personal liability for payment and performance of the terms and conditions of
this Deed of Trust.
12. WAIVER OF RIGHT TO MARSHAL. Trustor, for Trustor and for all
persons hereafter claiming through or under Trustor or who may at any time
hereafter become holders of liens junior to the lien of this Deed of Trust,
hereby expressly waives and releases all rights to direct the order in which any
of the Trust Property shall be sold in the event of any sale or sales pursuant
hereto and to have any of the Trust Property and/or any other property now or
hereafter constituting security for any of the indebtedness secured hereby
marshaled upon any foreclosure of this Deed of Trust or of any other security
for any of said indebtedness.
13. SEVERABILITY. In the event any provision contained in this Deed of
Trust shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Deed of Trust, but this Deed of Trust shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
14. FIXTURE FILING. This Deed of Trust is being filed as a fixture
filing. In addition, Trustor shall execute and deliver to Beneficiary for filing
any and all such forms UCC-1, UCC-2 and UCC-3 as Beneficiary may from time to
time request to perfect and maintain the lien of its security interests in
personal property and fixtures granted hereunder.
15. GOVERNING LAW. The law of the State of Oregon shall govern the
validity, interpretation, construction and performance of this Deed of Trust.
16. SUCCESSOR TRUSTEE; NOTICE. Beneficiary at any time and from time to
time, by instrument in writing, may substitute and appoint a successor or
successors (either corporate or individual) to any trustee named herein or
previously substituted hereunder, which instrument when executed, acknowledged,
and recorded in the office of the Recorder of the county or counties where the
Trust Property is situated shall be conclusive proof of the proper substitution
and appointment of each successor trustee or trustees, who shall then have all
the title, powers, duties and rights of the predecessor trustee, without the
necessity of any conveyance from such predecessor. Trustee accepts this trust
when this Deed of Trust, duly executed and acknowledged, is made a public record
as provided by law. The undersigned Trustor requests that a copy of any notice
of default and of any notice of sale hereunder be mailed to Trustor. Trustee is
not obligated to notify any party hereto of pending sale under any other deed of
trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be a party unless brought by Trustee. Except as otherwise provided in this
Deed of Trust or required by law, all notices and consents required or permitted
under this Deed of Trust shall be in writing and personally delivered, delivered
by private courier service (such as Federal Express) or mailed by first class
registered or certified mail, return receipt requested, postage prepaid, and
addressed as follows:
IF TO TRUSTOR/DEBTOR: Opus Northwest, L.L.C.
Attn: Xxxx Xxxxxxx, Vice President
000 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000
WITH A COPY TO: Xxxxxxx Brain PLLC
Attn: Xxxxxxx X. Xxxxxxx, P.S.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
AND TO: Opus U.S. Corporation
Attn: Xxxx Xxxxxxxxx, Associate General Counsel
800 Opus Center, 0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
IF TO BENEFICIARY: Gardenburger, Inc.
Attn: Xx. Xxxxxxx X. Xxxxx
0000 XX Xxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
WITH A COPY TO: Xxxxx X. Xxxxxxx
Miller, Nash, Wiener, Hager & Xxxxxxx LLP
3500 U.S. Bancorp Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
IF TO TRUSTEE: First American Title Insurance Company
000 XX Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Changes in the respective addresses to which such notices may be directed may be
made from time to time by any party by notice to the other parties. Notices and
consents given by mail in accordance with this Section B16 shall be deemed to
have been given three (3) days after being deposited in the mail; notices and
consents given by any other means shall be deemed to have been given when
received.
17. ENTIRE AGREEMENT. This Deed of Trust and the Note constitute the
entire and complete agreement of the parties with respect to the subject matter
hereof, and supersede all prior or contemporaneous understandings, arrangements
and commitments, all of which, whether oral or written, are merged herein. This
Deed of Trust shall bind and inure to the benefit of the parties to this Deed of
Trust and any successor or assignee acquiring an interest hereunder consistent
with Section B.11 above.
18. AUTHORIZATION. Trustor warrants that Trustor has full authority to
enter into this Deed of Trust and in so doing is not violating any law or
regulation or agreement with third parties, and Trustor has taken all such
action as may be necessary or appropriate to make this Deed of Trust binding on
Trustor, and, upon request, shall deliver certified copies of such action to
Beneficiary. If Trustor is not an individual, then the person or persons signing
on behalf of Trustor represent and warrant to Beneficiary that he or she was
authorized to execute this Deed of Trust on behalf of Trustor, that all actions
required for Trustor to enter into this Deed of Trust have been taken, and that
he or she is executing this Deed of Trust on behalf of Trustor.
ORS 93.040(1). THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY
DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND
REGULATIONS. 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 TO DETERMINE ANY LIMITS ON
LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930.
ZONING. 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 REGULATIONS, WHICH IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE
CONSTRUCTION OR SITING OF A RESIDENCE. 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.
TRUSTOR:
OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company
By:
-----------------------------------------
Xxxx Xxxxxxx, Vice President
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that XXXX
XXXXXXX is the person who appeared before me, and said person acknowledged that
he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Vice President of Opus Northwest, L.L.C.
to be the free and voluntary act of such party for the uses and purposes
mentioned in this instrument.
Dated: ______________________.
-------------------------------------------
(Signature of Notary Public)
-------------------------------------------
(Printed Name of Notary Public)
My Appointment expires_____________________
REQUEST FOR FULL RECONVEYANCE
DO NOT RECORD. TO BE USED ONLY WHEN NOTE HAS BEEN PAID.
To ________________________________________, Trustee:
The undersigned is the legal owner and holder of the note or notes, and
of all other indebtedness secured by the foregoing Deed of Trust. Said note or
notes, together with all other indebtedness secured by said Deed of Trust, have
been fully paid and satisfied; and you are hereby requested and directed, on
payment to you of any sums owing to you under the terms of said Deed of Trust,
to cancel said note or notes above mentioned, and all other evidences of
indebtedness secured by said Deed of Trust delivered to you herewith, together
with the said Deed of Trust, and to reconvey, without warranty, to the parties
designated by the terms of said Deed of Trust, all the estate now held by you
under the same.
DATED _________________________.
BENEFICIARY:
By:
------------------------------------
Its:
--------------------------------
MAIL RECONVEYANCE TO:
SCHEDULE A
TO
DEED OF TRUST
DESCRIPTION OF REAL PROPERTY
[Legal description]
EXHIBIT E
TO
PURCHASE AND SALE AGREEMENT
XXXXXXX MONEY NOTE
--------------------------------------------------------------------------------
XXXXXXX MONEY NOTE
$50,000 Bellevue, WA
_____________, 1997
Subject to the terms and conditions of that certain Purchase and Sale
Agreement (the "Agreement") of even date herewith by and between the undersigned
and GARDENBURGER, INC., an Oregon corporation ("Seller"), the undersigned
promises to pay to First American Title Insurance Company of Oregon ("Escrow
Company") the sum of Fifty Thousand Dollars ($50,000) without interest, within
two (2) Business Days of the date Buyer gives notice to Seller and Escrow
Company that all Feasibility Contingencies have been satisfied or waived by
Buyer pursuant to Section 4 of the Agreement. Principal shall be payable at the
Portland, Oregon office of Title Company. Capitalized terms in this Note have
the same meaning as set forth in the Agreement.
OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company
By:
---------------------------------
Xxxx Xxxxxxx
Vice President
EXHIBIT F
TO
PURCHASE AND SALE AGREEMENT
FORM OF STATUTORY WARRANTY DEED
--------------------------------------------------------------------------------
Recorded at the Request of
and after Recording Return to:
Xxxxxxx X. Xxxxxxx, X.X.
Xxxxxxx Brain PLLC
56th Floor, Key Tower
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
STATUTORY WARRANTY DEED
THE GRANTOR, GARDENBURGER, INC., an Oregon corporation, for good and
valuable consideration in hand paid, conveys and warrants to OPUS NORTHWEST,
L.L.C., a Delaware limited liability company the real estate described on
SCHEDULE A attached hereto, situated in the City of Portland, County of
Multnomah, State of Oregon, subject only to the matters described on SCHEDULE B
attached hereto. The true consideration for this conveyance is $_____________.
ORS 93.040 WARNING. THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY
--------------------------------------------------
DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND
-------------------------------------------------------------------------
REGULATIONS. 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 TO DETERMINE ANY LIMITS ON
--------------------------------------------------------------------------
LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930.
----------------------------------------------------------------------
DATED: ___________________.
GRANTOR:
GARDENBURGER, INC.,
an Oregon corporation
By:
--------------------------------
Its:
--------------------------
SCHEDULE A
TO
STATUTORY WARRANTY DEED
LAND
EXHIBIT G
TO
PURCHASE AND SALE AGREEMENT
FORM OF MEMORANDUM OF PURCHASE AND SALE AGREEMENT
--------------------------------------------------------------------------------
MEMORANDUM OF
PURCHASE AND SALE AGREEMENT
THIS MEMORANDUM OF PURCHASE AND SALE AGREEMENT (this "Memorandum) is
executed this ____ day of _______________________, 1997, by GARDENBURGER, INC.,
an Oregon corporation ("Seller"), whose address is ____________________________,
as a memorandum of an unrecorded Real Estate Purchase and Sale Agreement (the
"Agreement") of even date herewith, between Seller and OPUS NORTHWEST, L.L.C., a
Delaware limited liability company qualified to do business in the State of
Oregon, and/or assigns ("Buyer"), whose address is 000 000xx Xxxxxx X.X., Xxxxx
000, Xxxxxxxx, Xxxxxxxxxx 00000, concerning the real property described in
SCHEDULE A attached hereto and made a part hereof, and all improvements located
thereon (collectively, the "Premises").
1. SALE. For good and valuable consideration, Seller has agreed to sell
and Buyer has the right to purchase the Premises upon all the terms, conditions
and provisions set forth in the Agreement, which provisions are incorporated in
this Memorandum by reference.
2. MISCELLANEOUS. This Memorandum is not a complete summary of the
Agreement. Provisions in this Memorandum shall not be used in interpreting the
Agreement provisions. In the event of a conflict between this Memorandum and the
unrecorded Agreement, the unrecorded Agreement shall control.
IN WITNESS WHEREOF, this instrument was executed by the parties as of
the date first above written.
SELLER:
GARDENBURGER, INC.,
an Oregon corporation
By:
---------------------------------
Its:
---------------------------
BUYER:
OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company
By:
---------------------------------
Xxxx Xxxxxxx, Vice President
STATE OF CALIFORNIA )
)ss.
COUNTY OF _____________ )
This instrument was acknowledged before me by _____________________ as
____________________________ of Gardenburger, Inc., an Oregon corporation.
Dated: _____________________.
---------------------------------------
(Signature of Notary Public)
---------------------------------------
(Printed Name of Notary Public)
My Appointment expires_________________
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
This instrument was acknowledged before me by Xxxx Xxxxxxx as Vice
President of Opus Northwest, L.L.C., a Delaware limited liability company.
Dated: ___________________, 1997.
---------------------------------------
(Signature of Notary Public)
---------------------------------------
(Printed Name of Notary Public)
My Appointment expires_________________
SCHEDULE A
TO
MEMORANDUM OF PURCHASE AND SALE AGREEMENT
LAND
