Washington-Tukwila-14675 Interurban Avenue Purchase and Sale Agreement - United Support Association Inc. and James M. Saghi
COMMERCIAL AND INVESTMENT REAL ESTATE
PURCHASE AND SALE AGREEMENT
Date July 4, 1996
The undersigned Buyer, United Support Association, Inc. (Nevada Corporation),
agrees to buy and Seller agrees to sell, on the following terms, the real
property and all improvements thereon (collectively, the "Property") commonly
known as 14675 Interurban Avenue, in the City of Tukwila, King County,
Washington, legally described as: SEE EXHIBIT A.
(Buyer and Seller authorize the Listing Agent, Selling Licensee, or Closing
Agents to insert and/or correct, over their signatures, the legal description of
the Property.)
1. PURCHASE PRICE. The total purchase price is Three Million Three Hundred
Thousand and No/100 Dollars ($3,300,000.00), including the earnest money,
payable as follows:
[ ] all cash at closing, including the earnest money, with no financing
contingency.
[ ] all cash at closing, including the earnest money, contingent on new
financing under Section 4a below.
[X] $750,00 of the purchase price in cash at closing, including the
earnest money, with the balance of the purchase price paid as
follows (check only one):
[ ] Buyer's assumption of any underlying note and deed of trust,
or real estate contract, under Section 4b below;
[X] Buyer's delivery at closing of a promissory note for the
balance of the purchase price, secured by a deed of trust
encumbering the Property, as described in Section 4c below;
[ ] Buyer's delivery at closing of real estate contract for the
balance of the purchase price as described in Section 4c
below.
[ ] Other.
2. EARNEST MONEY RECEIPT. Selling Licensee acknowledges receipt from Buyer of
$200,000 earnest money, in the form of [ ] Cash [ ] Personal check
[X] Promissory note due upon contingency removal [ ] Other ____________,
to be held [ ] by Closing Agent [ ] in Selling Licensee's pooled trust
account (with interest paid to the Washington Housing Fund). Selling
Licensee may, however, transfer the earnest money to Closing Agent.
If the earnest money is to be held by Selling Licensee and is over $5,000,
it shall be deposited to: [ ] Selling Licensee's pooled trust account
[ ] A separate trust account in Selling Licensee's name, with the interest
credited at closing to Buyer whose Social Security (or taxpayer ID) Number
is ________________. If this sale fails to close, whoever is entitled to
the earnest money is entitled to interest.
Selling Licensee shall not deposit any check until mutual acceptance of
this Agreement. Buyer agrees to pay financing and purchase costs incurred
by Buyer. If all or part of the earnest money is to be returned to Buyer
and any such costs remain unpaid, Selling Licensee may deduct and pay them
therefrom.
3. ADDENDUMS. The following addendums are attached hereto:
[ ] None [X] No. 1.
4. FINANCING.
[Text intentionally omitted.]
(Note to Buyer and Seller: If the Property is currently used primarily for
farming or agricultural purposes, then a nonjudicial
foreclosure/forfeiture remedy is available only to Seller by using a real
estate contract not a deed of trust.)
1
<PAGE> 2
A. SECTION 1031 LIKE-KIND EXCHANGE. If either Seller or Buyer intends for
this transaction to be a part of a Section 1031 like-kind exchange, then
the other party agrees to cooperate in the completion of the like-kind
exchange so long as the cooperating party incurs no additional liability
in doing so, and so long as any expenses (including attorneys fees and
costs) incurred by the cooperating party that are related only to the
exchange are paid or reimbursed to the cooperating party at or prior to
closing.
5. INSPECTION CONTINGENCIES. This Agreement shall terminate and Buyer shall
receive a refund of the earnest money unless Buyer gives written notice to
Seller within eighteen (18) days (20 days if not filled in) of mutual
acceptance of this Agreement stating that Buyer is reasonably satisfied
with specified results of the following inspections. If such notice is
timely given, the inspection contingencies stated in this Section 5 shall
be deemed to be satisfied.
A. BOOKS, RECORDS, LEASES, AGREEMENTS. Seller shall make available for
inspection by Buyer or its agents as soon as possible but no later than
ten (10) five (5) days after mutual acceptance of this Agreement all
documents available to Seller relating to the ownership and operation of
the Property including without limitation: (i) statements for real estate
taxes, assessments, and utilities, property management agreements, service
contracts, leases of personal property or fixtures, leases of all or a
portion of the Property, and a schedule of tenants, rents, and deposits;
(ii) plans, specifications, permits, drawings, surveys, reports, and
maintenance records; and (iii) accounting records and audit reports.
Buyer shall determine within the contingency period stated in the
preceding introductory paragraph whether it wishes and is able to assume,
as of closing, all of the foregoing leases, contracts, and agreements
which have terms extending beyond closing
B. PROPERTY INSPECTION. Seller shall permit Buyer or its agents, at
Buyer's sole expense and risk, to enter the Property, at reasonable times
after legal notice to tenants, to conduct inspections concerning the
structural condition of the improvements, all mechanical, electrical and
plumbing systems, hazardous materials (limited to a Phase I audit only),
pest infestation, soils conditions, sensitive areas, wetlands, or other
matters affecting the feasibility of the Property for Buyer's intended
use. Buyer agrees to indemnify and defend Seller from all liens, costs,
expenses, including attorneys and expert fees, arising from or relating to
Buyer's entry onto and inspection of the Property. This agreement to
indemnify and defend Seller shall survive closing.
6. TITLE INSURANCE.
A. TITLE REPORT. Seller authorizes Lender and Listing Agent, Selling
Licensee or Closing Agents, at Seller's expense, to apply for and deliver
to Buyer a [ ] standard [ ] extended (standard, if not completed) coverage
owner's policy of title insurance. If an extended coverage owner's policy
specified, Buyer shall pay the increased costs associated with that policy
including the excess premium over that charged for a standard coverage
policy, and the cost of any survey required by the title insurer. The
title report shall be issued by First American Title Company by July 12th.
B. PERMITTED EXCEPTIONS. Buyer shall notify Seller of any objectionable
matters in the title commitment or any supplemental report within ten (10)
days after receipt of such commitment or supplement. Buyer may not object
to the following: (a) rights of tenants existing as of closing; (b) real
property taxes due after closing; (c) if consistent with Buyer's intended
use of the Property, easements and reservations including reserved oil,
gas, and/or mineral rights; and (d) governmental building and land use
regulations, codes, and laws. This Agreement shall terminate and Buyer
shall receive a refund of the earnest money, less any costs advanced or
committed for Buyer, unless (a) within ten (10) days of Buyer's notice of
such objections, Seller agrees to remove all objectionable provisions; or
(b) within fifteen (15) days after Buyer's notice of such objections,
Buyer notifies Seller in writing that it waives any objections which
Seller does not agree to remove. The provisions referenced in (a) through
(d) above and those provisions not objected to or for which Buyer waived
its objections shall be referred to collectively as the "Permitted
Exceptions." The title policy shall contain no exceptions other than the
General Exclusions and Exceptions common to such form of policy and the
2
<PAGE> 3
Permitted Exceptions.
7. CLOSING OF SALE. This sale shall be closed on or before July 26, 1995
("closing") by First American Title Company ("Closing Agent"). Buyer and
Seller will, immediately on demand, deposit with Closing Agent all
instruments and monies required to complete the purchase in accordance
with this Agreement. "Closing" shall be deemed to have occurred when all
documents are recorded and the sale proceeds are available to Seller. If
this sale cannot be closed by the above date, because of circumstances
beyond the control of the party whose performance is delayed, closing
shall be extended seven (7) days beyond cessation of such circumstance but
in not event more than thirty (30) days beyond the above date. Time is of
the essence in the performance of this Agreement.
8. CLOSING COSTS. Seller shall pay the excise tax and premium for the owner's
extended coverage title policy. Seller and Buyer shall each pay one-half
of the escrow fees. Real and personal property taxes and assessments
payable in the year of closing; rents on any existing tenancies; interest;
mortgage reserves; utilities; and other operating expenses shall be
pro-rated as of closing. Security, cleaning, and any other unearned
deposits on tenancies, and remaining mortgage or other reserves shall be
assigned to Buyer at closing. The real estate commission is due on closing
or upon Seller's default under this Agreement, whichever occurs first, an
neither the amount nor due date thereof can be changed without Listing
Agent's written consent.
9. POST-CLOSING ADJUSTMENTS, COLLECTIONS, AND PAYMENTS. After closing, Buyer
and Seller shall reconcile the actual amount of revenues or liabilities
upon receipt or payment thereof to the extent those items were prorated or
credited at closing based on estimates. Any bills or invoices received by
Buyer after closing which relate to services rendered or goods delivered
to the Seller or the Property prior to closing shall be paid by Seller
upon presentation of such bill or invoice. At Buyer's option, Buyer may
pay such bill or invoice and be reimbursed the amount paid plus interest
at the rate of twelve percent (12%) per annum beginning fifteen (15) days
from the date of Buyer's written demand to Seller for reimbursement until
such reimbursement is made. Rents collected from each tenant after closing
shall be applied for the benefit of Seller for delinquent rentals owed for
a period prior to closing. The amounts applied for the benefit of Seller
shall be turned over by Buyer to Seller promptly after receipt.
10. OPERATIONS PRIOR TO CLOSING. Prior to closing, Seller shall continue to
operate and maintain the Property in the ordinary course of its business
and shall operate the Property in compliance with all applicable laws,
rules, regulations and ordinances. Seller shall not enter into or modify
existing rental agreements or leases (except that Seller may modify or
terminate residential rental agreements or leases in the ordinary course
of its business), service contracts, or other agreements affecting the
Property which have terms extending beyond closing without first obtaining
Buyer's consent, which shall not be unreasonably withheld. Seller shall
maintain the condition of the Property in the condition existing on the
date of mutual acceptance of the Agreement.
11. POSSESSION. Buyer shall be entitled to possession, subject to existing
tenancies, [ ] on closing [ ] _____________ (on closing, if not
completed).
12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and warrants to
Buyer that, to the best of Seller's knowledge, each of the following is
true as of the date hereof and shall be true as of closing: (a) Seller is
authorized to enter into the Agreement to sell the Property, and to
perform its obligations under the Agreement; (b) all books, records,
leases, agreements and other items delivered to Buyer pursuant to Section
5 above are accurate and complete; (c) the Property and the business
conducted thereon comply with all applicable laws, regulations, codes and
ordinances; (d) Seller has all certificates of occupancy, permits, and
other governmental consents necessary to own and operate the Property for
its current use; (e) there is no pending or threatened litigation which
would adversely affect Buyer's ownership of the Property after closing;
(f) there are no covenants, conditions, restrictions, or contractual
obligations of Seller which will adversely affect Buyer's ownership of the
Property after closing, or prevent Seller from performing its obligations
under the Agreement, except as disclosed in the preliminary commitment for
title insurance or
3
<PAGE> 4
as otherwise disclosed to Buyer in writing prior to closing; (g) there is
no pending or threatened condemnation or similar proceedings affecting the
Property, and except as otherwise disclosed in the preliminary commitment
for title insurance as or otherwise disclosed to Buyer in writing prior to
closing, the Property is not within the boundaries of any planned or
authorized local improvement district; (h) Seller has paid (except to the
extent prorated at closing) all local, state and federal taxes (other than
real and personal property taxes and assessments described in Section 8
above) attributable to the period prior to closing which, if not paid,
could constitute a lien on Property (including any personal property), or
for which Buyer may be held liable after closing; and (i) Seller warrants
that, to the best of Seller's knowledge, there are no pending or
threatened notices of violation of building, zoning, or land use codes
applicable to the property, and that Seller is not aware of any concealed
material defects in the Property except _________________. Seller makes no
representations or warranties regarding the Property other than those
specified in this Agreement, Buyer otherwise takes the Property "AS IS,"
and Buyer shall otherwise rely on its own pre-closing inspections and
investigations.
13. HAZARDOUS SUBSTANCES. Seller represents and warrants to Buyer that, to the
best of its knowledge: (i) there are no Hazardous Substances (as defined
below) currently located in, on, or under the Property in a manner or
quantity that presently violates any Environmental Law (as defined below);
(ii) there are no underground storage tanks located on the Property; and
(iii) there is no pending or threatened investigation or remedial action
by any governmental agency regarding the release of Hazardous Substances
or the violation of Environmental Law at the Property. As used herein, the
term "Hazardous Substances" shall mean any substance or material now or
hereafter defined or regulated as a hazardous substance, hazardous waste,
toxic substance, pollutant, or contaminant under any federal, state, or
local law, regulation, or ordinance governing any substance that could
cause actual or suspected harm to human health or the environment
("Environmental Law"). The term "Hazardous Substances" specifically
includes, but is not limited to petroleum, petroleum by-products, and
asbestos. Seller agrees to indemnify, defend and hold Buyer harmless from
and against any and all claims, liabilities, losses, penalties,
remediation costs and expenses (including attorneys' and consultants' fees
and costs) that Buyer may incur or have asserted against it as a result of
the presence of any Hazardous Substance in, on, or under the Property
which violates any Environmental Law at any time prior to closing. The
provisions of this Section 13 shall survive closing or termination of this
Agreement.
14. PERSONAL PROPERTY. This sale includes the following personal property:
[X] None [ ] That portion of the personal property located on and used in
connection with the Property, which Seller will itemize in an Addendum to
be attached to this Agreement within ten (10) days of mutual acceptance
(None, if not completed). The value assigned to the personal property
shall be the amount agreed upon by the parties and, if they cannot agree,
the County-assessed value if available, and if not available, the fair
market value determined by an appraiser selected by the Listing Agent and
Selling Licensee. Seller warrants title to, but not the condition of, the
personal property and shall convey it by bill of sale.
15. CONDEMNATION AND CASUALTY. Buyer may terminate this Agreement and obtain a
refund of the earnest money, less any costs advanced or committed for
Buyer, if improvements on the Property are destroyed or materially damaged
by casualty before closing, or if condemnation proceedings are commenced
against all or a portion of the Property before closing.
16. FIRPTA - TAX WITHHOLDING AT CLOSING. Closing Agent is instructed to
prepare a certification (CIBA or PSMLA Form 22E, or equivalent) that
Seller is not a "foreign person" within the meaning of the Foreign
Investment in Real Property Tax Act. Seller agrees to sign this
certification. If Seller is a foreign person, and this transaction is not
otherwise exempt from FIRPTA, Closing Agent is instructed to withhold and
pay the required amount to the Internal Revenue Service.
17. CONVEYANCE. Title shall be conveyed by a Statutory Warranty Deed subject
only to the Permitted Exceptions. If this Agreement is for conveyance of
Seller's vendee's interest in a Real Estate Contract, the Statutory
Warranty Deed shall include a contract vendee's assignment sufficient to
convey after acquired title. At closing, Seller shall transfer to
4
<PAGE> 5
Buyer by written assignment all agreements, service contracts, rental
agreements, tenant leases, leases of potential property or fixtures, and
any other agreements or contract rights which Buyer is assuming pursuant
to Section 5 of the Agreement. The written assignment shall provide that
Seller shall be responsible for and shall indemnify Buyer against any
defaults occurring by reason of actions taken by Seller or performance due
prior to closing, and that Buyer shall assume and indemnify Seller against
liability arising from all performance due after closing.
18. SEATTLE REQUIREMENTS. If the Property is in the City of Seattle, (a)
Seller shall deliver to Buyer a Certificate of Land Use and Local
Assessments (not applicable to single family dwellings not represented to
be a lawful site for more than one dwelling unit), and (b) Seller warrants
that U.L. approved smoke detectors are installed. Only in buildings
constructed before 1980 may the smoke detectors be battery powered.
19. NOTICES. Unless otherwise specified, any notice required, or permitted in,
or related to, this Agreement must be in writing; signed by any one Buyer
or Seller (including either husband or wife); and received by or at the
selling office of Selling Licensee who, for this limited purpose, shall be
the Agent of both parties. Any time limit in or applicable to a notice
shall commence on the day following receipt of the notice by the Selling
Licensee, unless that is a Saturday, Sunday or holiday, in which event it
will commence on the next following business day. SELLER AND BUYER MUST
KEEP SELLING LICENSEE ADVISED OF THEIR WHEREABOUTS TO RECEIVE PROMPT
NOTIFICATION OF RECEIPT OF NOTICE. SELLING LICENSEE HAS NO RESPONSIBILITY
TO ADVISE OF RECEIPT OF A NOTICE BEYOND EITHER PHONING THE PARTY OR
CAUSING A COPY OF THE NOTICE TO BE DELIVERED TO THE PARTY'S ADDRESS ON
THIS AGREEMENT.
20. AGENCY DISCLOSURE. At the signing of this Agreement, Selling Licensee, Bob
Bencze and Arvin Vander Veen of Colliers Macaulay Nicolls International,
represented Buyer, and Listing Agent, N/A, represented Seller. Each party
signed this Agreement confirms that prior oral and/or written disclosure
of agency or non-agency was provided to him/her in this transaction.
21. ASSIGNMENT. Buyer [X] may [ ] may not (may not, if not completed) assign
this Agreement, or Buyer's rights hereunder, without Seller's prior
written consent, unless provided otherwise herein.
22. DEFAULT AND ATTORNEY'S FEE. In the event Buyer fails, without legal
excuse, to complete the purchase of the Property, then (check one):
[X] that portion of the earnest money which does not exceed five percent
(5%) of the purchase price shall be forfeited to Seller (subject to
Seller's obligation to pay certain costs and a commission under Section 25
below) as the sole and exclusive remedy available to Seller for such
failure; or
Seller may, at its option, (a) keep as liquidated damages all or a portion
of the earnest money (subject to Seller's obligation to pay certain costs
and a commission under Section 21 below) as the sole and exclusive remedy
available to Seller for such failure, (b) bring suit against Buyer for
Seller's actual damages, (c) bring suit to specifically enforce this
Agreement and recovery any incidental damages, or (d) pursue any other
rights or remedies available at law or equity.
If Buyer, Seller, Listing Agent or Selling Licensee institutes suit
concerning this Agreement, the prevailing party is entitled to court costs
and a reasonable attorney's fees. In the event of trial, the amount of the
attorney's fees shall be fixed by the court. The venue of any suit shall
be the county in which the Property is located, and this Agreement shall
be governed by the laws of the state where the Property is located.
23. MISCELLANEOUS PROVISIONS.
A. COMPLETE AGREEMENT. The Agreement and any addenda and exhibits to it
state the entire understanding of Buyer and
5
<PAGE> 6
Seller regarding the sale of the Property. There are no verbal agreements which
modify or affect the Agreement.
B. NO MERGER: The terms of the Agreement shall not merge in the deed or
other conveyance instrument transferring the Property to Buyer at closing. The
terms of this Agreement shall survive closing.
C. COUNTERPART SIGNATURES. The Agreement may be signed in counterpart,
each signed counterpart shall be deemed and original, and all counterparts
together shall constitute one and the same agreement.
24. ACCEPTANCE; COUNTEROFFERS. Seller has until 12:30 p.m. of July 5, 1996 to
accept this offer (if not filled in, the third business day following the
last Buyer signature below). Acceptance is not effective until a signed
copy hereof is actually received by or at the office of Selling Licensee.
If this offer is not so accepted, it shall lapse and Selling Licensee
shall refund the earnest money to Buyer. (If either party makes a future
counteroffer, the other party shall have until 5:00 p.m. on the ______ day
(if not filled in, the second day) following the receipt or at the office
of Selling Licensee to accept the counteroffer, unless sooner withdrawn.
Acceptance is not effective until a signed copy thereof is received by or
at the office of Selling Licensee. If the counteroffer is not accepted or
countered, this Agreement shall lapse and the earnest money shall be
refunded to the Buyer.
25. SELLER'S ACCEPTANCE AND BROKERAGE AGREEMENT. Seller agrees to sell the
Property on the terms and conditions herein, and further agrees to pay a
commission in an amount computed in accordance with the listing agreement.
If there is no written listing agreement, Seller agrees to pay a
commission of _______ ( %) of the sales price or One Hundred Thousand and
No/100 Dollars ($100,000). This is a reduced commission from the normal 6%
or $165,000. The commission shall be apportioned between Listing Agent and
Selling Licensee as specified in the listing agreement or any co-brokerage
agreement. Seller assigns to Listing Agent and Selling Licensee a portion
of the sales proceeds equal to the commission. If the earnest money is
retained as liquidated damages, any costs advanced or committed by Listing
Agent or Selling Licensee for Buyer or Seller shall not be reimbursed or
paid therefrom, and the balance shall be paid one-half to Seller and
one-half to Listing Agent and Selling Licensee according to the listing
agreement and any co-brokerage agreement. Seller acknowledges receipt of a
copy of this Agreement, signed by both parties.
26. LISTING AGENT AND SELLING LICENSEE DISCLOSURE. EXCEPT AS OTHERWISE
DISCLOSED IN WRITING TO BUYER OR SELLER, NEITHER SELLING LICENSEE NOR
LISTING AGENT HAS MADE ANY REPRESENTATIONS OR WARRANTIES CONCERNING THE
LEGAL EFFECT OF THIS AGREEMENT, BUYER'S OR SELLER'S FINANCIAL STRENGTH, OR
THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE PROPERTY ZONING,
COMPLIANCE WITH APPLICABLE LAWS (INCLUDING LAWS REGARDING ACCESSIBILITY
FOR DISABLED PERSONS), OR HAZARDOUS MATERIALS. SELLER AND BUYER ARE EACH
ADVISED TO SEEK INDEPENDENT LEGAL AND TAX ADVICE ON THESE AND OTHER
MATTERS RELATED TO THIS AGREEMENT. IF THE SAME BROKER REPRESENTED BOTH
BUYER AND SELLER IN THIS TRANSACTION, BUYER AND SELLER HEREBY CONFIRM THAT
THEY WERE TIMELY ADVISED OF THE DUAL REPRESENTATION, THAT THEY CONSENTED
AND HEREBY CONSENT TO THE SAME AND THAT THEY DO NOT EXPECT THE BROKER TO
DISCLOSE TO EITHER OF THEM ANY CONFIDENTIAL INFORMATION OBTAINED FROM THE
OTHER PARTY.
UNITED SUPPORT ASSOCIATION, INC.
Buyer /s/ CHRISTOPHER CARDE Date JULY 4 19 96 Home Ph.
__________________________ ___________ ____ _______________
Buyer Date 19 Home Ph.
__________________________ ___________ ____ _______________
6
<PAGE> 7
Buyer's Address:_______________________________________ Fax No.________________
Selling Licensee (Company)
By /s/ BOB BIANCIO
_________________________________________
Seller_________________________ Date___________ 19 ____ Home Ph._______________
Seller_________________________ Date___________ 19 ____ Home Ph._______________
Print Seller's Names:_________________________________________
Seller's Address:_____________________________________________
Listing Office:_______________________________________________
27. BUYER'S RECEIPT. Buyer acknowledges receipt of a Seller signed copy of
this Agreement on _________________________________, 19_____.
BUYER___________________________________ Buyer__________________________________
7
<PAGE> 8
COLLIERS MACAULAY NICOLLS INTERNATIONAL
ADDENDUM NO. 1
ADDENDUM NO. 1 to Real Estate Purchase and Sale Agreement dated July 4, 1986, by
and between United Support Association, Inc., as Purchaser, and James M. Saghi,
as his separate estate, as Seller.
1. Purchase Price Payment
The purchase price is payable to Sun Life of Canada as follows:
$750,000 in cash at the time of closing to include any earnest money paid.
The balance of $2,550,000 shall be placed on a promissory note secured by
a first deed of trust with Sun Life of Canada on subject property. The
note shall call for monthly payments of $50,000 for the first twelve
months to include interest at the rate of 8% per year starting thirty (30)
days from the date of closing. The next eighteen months shall call for
monthly payments of $100,000 to include interest at the rate of 8% per
year. The note shall be due on the thirty-first month when the remaining
balance and interest shall be due. There shall be no pre-payment penalty.
2. Sun Life Approval
This agreement is subject to approval of the financial terms by Sun Life
of Canada.
3. James M. Saghi and Sun Life of Canada agree to hold harmless and indemnify
United Support Association, Inc. from any cause of action, present or
future, arising directly or indirectly between Sun Life of Canada and
James M. Saghi concerning the subject property.
4. James M. Saghi shall surrender the deed in lieu of foreclosure to Sun Life
of Canada upon acceptance of the financial terms of the subject Purchase
and Sale Agreement.
5. Seller is to terminate all leases, service agreements and contracts
affecting subject property by July 26, 1996.
ACKNOWLEDGED AND AGREED to this ACKNOWLEDGED AND AGREED to this
4th day of JULY, 1996. ____day of________________, 1996.
BUYER SELLER
By: /s/ CHRISTOPHER CARDE By:
________________________________ ________________________________
Its:_______________________________ Its:_______________________________
8
<PAGE> 9
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LOTS 1, 2 AND 3 IN BLOCK 15 OF HILLMAN'S SEATTLE GARDEN TRACTS, AS PER PLAT
RECORDED IN VOLUME 11 OF PLATES, PAGE 24, RECORDS OF KING COUNTY:
EXCEPT THE NORTHEASTERLY 40 FEET THEREOF CONDEMNED FOR ROAD PURPOSES IN KING
COUNTY SUPERIOR COURT CAUSE NO. 109001;
TOGETHER WITH AN EASEMENT FOR EXISTING DRIVEWAY OVER AND ACROSS THE SOUTHERLY 5
FEET OF THE EASTERLY 315 FEET OF LOT 4 IN SAID BLOCK;
EXCEPT THE NORTHEASTERLY 40 FEET THEREOF CONDEMNED AS AFORESAID;
SITUATED IN THE CITY OF TUXWILA, COUNTY OF KING, STATE OF WASHINGTON.
PARCEL 2:
THE NORTH 250 FEET, AS MEASURED ALONG THE WEST LINE OF LOT 2, INTERURBAN
ADDITION TO SEATTLE, AS PER PLAT RECORDED IN VOLUME 10 OF PLATS, PAGE 55,
RECORDS OF KING COUNTY;
EXCEPT THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT;
THENCE SOUTH ALONG THE WEST LINE OF SAID LOT 250.00 FEET;
THENCE NORTH 89 DEGREES 37 MINUTES 52 SECONDS EAST 178.40 FEET;
THENCE NORTHWESTERLY TO A POINT ON THE NORTH LINE OF SAID LOT WHICH IS NORTH 89
DEGREES 37 MINUTES 52 SECONDS EAST A DISTANCE OF 10.00 FEET FROM THE POINT OF
BEGINNING;
THENCE SOUTH 89 DEGREES 37 MINUTES 52 SECONDS WEST 10.00
FEET TO THE POINT OF BEGINNING OF SAID EXCEPTION.
SITUATED IN THE CITY OF TUKWILA, COUNTY OF KING, STATE OF WASHINGTON.
PARCEL 3:
THAT PORTION OF TUKWILA TRAP NO. 1 LYING SOUTHERLY OF LOT 1, BLOCK 15 OF
HILLMAN'S SEATTLE GARDEN TRACTS, AS PER PLAT RECORDED IN VOLUME 11 OF PLATS,
PAGE 24, RECORDS OF KING COUNTY, WASHINGTON DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID LOT 1, LYING S89 DEGREES 37 FEET
52 INCHES W 136.89 FEET FROM THE INTERSECTION OF SAID SOUTH LINE, WITH THE
SOUTHWESTERLY MARGIN OF INTERURBAN AVENUE SOUTH (THE SOUTHWESTERLY LINE OF THE
NORTHEASTERLY 40 FEET OF LOT 1); THENCE N89 DEGREES 37 FEET 52 INCHES E 39SE
FEET TO A POINT ON A CURVE TO THE RIGHT WITH A 150.00 FOOT RADIUS AND INITIAL
RADIAL BEARING OF S22 DEGREES 13 FEET 28 INCHES E. THENCE SOUTHWESTERLY ON SAID
CURVE AN ARC OF 122.06 FEET AND
9
<PAGE> 10
CENTRAL ANGEL OF 3 DEGREES LESS THAN 42 FEET 40 INCHES TO THE SOUTH LINE OF SAID
LOT 1; THENCE N89 DEGREES 37 FEET 52 INCHES E 59.56 FEET TO THE POINT OF
BEGINNING.
10
<PAGE> 11
COLLIERS MACAULAY NICHOLLS INTERNATIONAL
DEPOSIT NOTE
$200,000 Seattle, Washington
July 4, 1996
FOR VALUE RECEIVED, each of the undersigned promises to pay in lawful
money of the United States, without grace, to Colliers Macaulay Nicholls
International ("CMNI"), or order, at Seafirst Fifth Avenue Plaza, 800
Fifth Avenue, Suite 3000, Seattle, Washington 98104, or at such other
place as the holder hereof from time to time may designate in writing, the
principal sum of Two Hundred Thousand and No/100 Dollars ($200,000) with
no interest thereon. This note shall be paid on removal or waiver of
contingencies contained in the Real Estate Purchase and Sale Agreement of
even date herewith.
After maturity, this Note shall bear interest at the maximum legal rate.
If this Note shall be placed in the hands of an attorney for collection or
if ___________ shall be brought to collect any of the principal or
interest on this Note, each of the undersigned promises to pay all costs
of collection, including reasonable attorneys' fees incurred thereby.
Each maker of this Note executes the same as a principal and not as a
__________. The obligations of this Note shall be joint and several. Each
of the undersigned and all endorsers and all persons liable or to become
liable on this Note under ____________________, demand _________ and
notice of demand, ____________ and nonpayment and consent to any and all
remedies and _____________ of the ____________ of payment hereof may be
modified without affecting the liability of any party to this Note or any
person liable with respect to any individuals _______________ thereby.
This Note shall be construed according to the laws of the State of
Washington.
PURCHASER:
By: /s/ CHRISTOPHER CARDE
____________________________
Its:___________________________
Date: 7/4/96
__________________________
Address:
11
<PAGE> 12
PROMISSORY NOTE
$3,3335,000.00 Dated: June 18, 1992
Seattle, Washington
FOR VALUE RECEIVED, the undersigned, JAMES M. SAGHI, a married man
as his sole and separate property (hereinafter referred to as the
"Maker"), hereby promises to pay to the order of SUN LIFE ASSURANCE
COMPANY OF CANADA (U.S.), a Delaware corporation (hereinafter referred to
as the "Holder"), c/o Draper Shaw Associates, Inc., 9706 Fourth Avenue
N.E., Suite 201, Seattle, Washington 98115, or at such other place as the
Holder may from time to time designate in writing, the principal sum of
THREE MILLION THREE HUNDRED FIFTY-FIVE THOUSAND AND NO/100 DOLLARS
($3,355,000.00), plus interest on the outstanding principal at the rate of
nine percent (9%) per annum from the day the funds of the loan evidenced
by this Note are wire transferred by Holder until fully paid, payable in
the following manner:
On the first (1st) day of July, 1992, all interest which will accrue
under this Note from the day of wiring the loan funds through June 30,
1992 shall be paid by the Maker to the Holder. Commencing on the first
(1st) day of August, 1992, and on the first (1st) day of each calendar
month thereafter, Maker shall make payments of principal and interest at
said rate to Holder in the amount of TWENTY-SIX THOUSAND NINE HUNDRED
NINETY-SIX AND NO/100 DOLLARS ($26,996.00) per month. Notwithstanding
anything to the contrary contained herein, the entire unpaid principal
balance plus accrued interest shall be paid in full in the form of a final
balloon payment on May 31, 1997. Notwithstanding anything further to the
contrary, in the event the encroachment of the building on the Property
onto the South 147th Street right-of-way and any set-back violation
related thereto are not fully resolved to Holder's satisfaction by May 31,
1993, then the entire unpaid principal balance plus accrued interest shall
be due in full on June 1, 1993. All scheduled payments shall, in the
absence of a default by Maker under this Note, be applied first to the
interest due, and any balance shall be applied in reduction of principal.
The principal and interest hereto shall be payable in lawful money of the
United States of America which shall be legal tender for public and
private debts at the time of payment. In no event shall the interest rate
exceed the legal rate of interest provided for under the laws of the State
of Washington.
The privilege is reserved to prepay in full, but not in part, on any
monthly payment due, subject to giving thirty (30) days' prior written
notice and subject to the payment of a prepayment premium which shall be
the greater of (a) two percent (2%) of the then outstanding balance of
this Note, or (b) a Yield Maintenance Prepayment Fee computed as follows:
the proceeds of the prepayment will be assumed to be immediately
reinvested in a United States Treasury Security having a coupon interest
rate and maturity most closely equivalent to that of this Note. If the
yield on that certain United States Treasury Security, as published in the
Wall Street Journal on the fifth (5th) business day prior to the date of
prepayment, is:
(1) less than nine percent (9%) per annum, Maker shall pay to
Holder a fee equal to the positive difference between the two,
divided by twelve (12), multiplied by the number of whole or partial
months remaining until the maturity date of this Note and multiplied
by the then outstanding balance of this Note; or
(2) greater than or equal to nine percent (9%) per annum, then
the prepayment fee shall be two percent (2%) of the then outstanding
balance of this Note.
No prepayment premium shall be due after February 28, 1997. If an event of
default occurs under this Note or the documents securing the loan
evidenced by this Note, thereby causing Holder to accelerate the loan
evidenced by this Note prior to the maturity date, including the last
eleven (11) days prior to a non-judicial trustee's sale under RCW 61.24
Holder will sustain damages due to the loss of its investment.
Accordingly, in the event of any default and consequent
12
<PAGE> 13
acceleration of the Note, the Deed of Trust or any other instruments given
as further security for repayment of this Note, Maker will be required, to
the extent permitted by law, to pay as liquidated damages an acceleration
premium of the greater of (a) three percent (3%) of the then outstanding
balance of this Note, or (b) a reinvestment formula amount calculated as
follows: the amount accelerated will be assumed to be immediately
reinvested in a United States Treasury Security having a coupon interest
rate and maturity most closely equivalent to that of this Note. If the
yield on that certain United States Treasury Security, as published in the
Wall Street Journal on the fifth (5th) business day prior to the date of
acceleration, is:
(1) less than nine percent (9%) per annum, Maker shall pay
Holder an acceleration premium equal to the positive
difference between the two, divided by 12, multiplied by the
number of whole or partial months remaining until the original
maturity date of this Note, and multiplied by the then
outstanding balance of this Note, or
(2) greater than or equal to nine percent (9%) per annum, than
the acceleration premium shall be three percent (3%) of the
then outstanding balance of this Note.
It is agreed that payment of this acceleration premium shall be
additionally secured by the loan documents and will not preclude Holder
from seeking enforcement of any other remedies available to it at law or
in equity. No acceleration premium shall be payable if the loan evidenced
by this Note is reinstated more than eleven (11) days prior to the
trustee's sale. No prepayment premium shall be charged on involuntary
prepayments occasioned by condemnation, fire or casualty.
This Note evidences a loan and is secured by a first Deed of Trust
of even date herewith executed and delivered by Maker covering certain
real property therein described, together with any other security given to
further secure this Note (collectively called the "Property" herein).
It is hereby expressly agreed that, should any payment of any
installment of interest and/or principal not be made when due hereunder,
then Maker shall be in default under this Note and the entire indebtedness
represented hereby shall, at the option of the Holder of this Note,
without notice, become immediately due and payable. In addition, the
Holder of this Note may collect a "late charge" not to exceed an amount
equal to six percent (6%) of any installment which is not paid within ten
(10) days of when due, to cover the extra expenses involved in handling
delinquent payments. In the event of default in the payment of any
installment, or in any term or condition hereof, or in the Deed of Trust
or any other agreement between Maker and Holder pertaining to the
indebtedness evidenced hereby, then, with such notice as may be required
by the Deed of Trust and expiration of the applicable cure period, if any,
the entire unpaid balance of this Note shall bear interest at thirteen
percent (13%) per annum (the "Default Rate").
For the purpose of protecting Holder's security, keeping the
Property free from subordinate financing liens and allowing Holder to
raise the interest rate and collect assumption fees, Maker agrees that any
sale, conveyance, further encumbrance (including the granting of any
easements or other matters affecting title) or other transfer of title to
the Property, or any interest therein (whether voluntarily or by operation
of law) without Holder's prior written consent shall be an event of
default, the entire balance of the indebtedness and all other sums
evidenced by this Note or secured by the Deed of Trust shall be and become
immediately due and payable, at the option of Holder. In addition, to the
extent permitted by law, any prepayment charge or acceleration premium due
under this Note shall also be payable. Any consent by Holder permitting an
otherwise prohibited transfer or transaction shall not constitute a
consent to or waiver of any right, remedy or power of Holder to withhold
its consent on a subsequent occasion to a transfer not otherwise permitted
by the provisions hereof.
13
<PAGE> 14
For the purpose of, and without limiting the generality of the
foregoing, the occurrence at any time of any of the following events
without Holder's prior written consent shall be deemed to be an
unpermitted transfer of title to the property and shall constitute an
event of default under this Note.
(a) any sale, conveyance, assignment, including any assignment for
the benefit of creditors, or other transfer of, or the grant of a lien or
security interest in, all or any part of the legal or equitable interest
in the Property; or
(b) any transfer, assignment, sale, encumbrance or other
distribution of any general partnership or stock interest in Maker, or any
partnership or stock interest in any partnership or corporate general
partner of Maker.
Notwithstanding the foregoing, one time only during the term of the
Note, Holder hereby agrees to consent to the transfer of the Property in
its entirety from the original Maker to an independent third party on an
arms length basis so long as the purchaser is acceptable to Holder as
measured and analyzed by normal and ordinary standards of financial
strength, credit history, real estate management ability and experience
and professional character, and so long as Maker pays Holder an assumption
fee equal to the two percent (2%) of the then outstanding principal
balance of the Note.
Notwithstanding the foregoing, Maker shall have the right to
transfer the Property to a trust or trusts controlled by Maker without
payment of an assumption fee and any transfer resulting from the death of
Maker shall not require either the consent of Holder or the payment of any
fee.
If any action is instituted to collect this Note, or any part
hereof, or if it is placed in the hands of an attorney for collection, the
undersigned promises and agrees to pay, in addition to any costs and
disbursements provided by statute, all costs (including, but not limited
to attorneys' fees, including such fees in any trial or appellate
proceeding should litigation be instituted) incurred in connection with
the collection thereof.
The Maker and any endorsers hereof and all others who may become
liable for all or any part of this obligation, agree hereby to be jointly
and severally bound, and waive any homestead or exemption right against
said debt, and, except for notices required to be given pursuant to the
terms of this Note or the Deed of Trust, if any, jointly and severally
waive presentment, protest and demand, notice of protest and demand,
notice of dishonor and non-payment of this Note and any and all lack of
diligence or any assignment of this Note and/or the Deed of Trust or any
other agreements evidencing or securing this Note, extension of time,
release of any party liable for this obligation, release of any security
for this Note, or any other indulgence or forbearance whatsoever. Any such
assignment, extension, release, indulgence or forbearance may be made
without notice to the undersigned and without in any way affecting the
personal liability of the undersigned.
The Maker shall pay to the Holder, when so requested by Holder, in
addition to the required installment of interest and principal, a monthly
installment of one-twelfth (1/12th) of the annual real estate taxes,
insurance premiums and assessments that may be assessed upon the property
described in the Deed of Trust securing this Note.
Delay in exercising any of the Holder's rights or options hereunder
shall not constitute a waiver thereof, and waiver of any right or option
shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default.
If more than one person executes this Note, the term "Maker" shall
include each as well as all of them and their obligations hereunder shall
be joint and several.
The provisions of this Note shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors and assigns of
the parties hereto.
14
<PAGE> 15
This Note shall be construed according to the laws of the State of
Washington.
Time is of the essence of this Note and each and every term and
provision hereof.
Maker's financial responsibility for repayment of this Note is
limited to the Property, both real and personal, securing repayment of
this Note and Maker shall not be personally liable to Holder for any
monetary deficiency arising from a foreclosure or similar action, should
such occur. No such financial responsibility limitation shall apply,
however, to any insurance proceeds or condemnation awards received by
Maker and not applied according to the terms of the Deed of Trust, nor
shall it apply to any rents received by Maker subsequent to any default by
Maker under this Note or the Deed of Trust and not applied to the
operation of the property securing this Note or to this Note, nor will
Maker's liability be limited with respect to any matter arising from any
action taken against Maker or Holder as owner of the property securing
this Note for violation of any environmental protection law or ordinance,
including, but not limited to, all laws pertaining to asbestos, all as
more fully set forth in the Environmental Indemnity Agreement executed by
Maker in favor of Holder of even date herewith. Further, Maker hereby
agrees to undertaken and indemnify and hold Holder harmless from any and
all claims, including environmental claims, as may become liens prior and
superior to the Deed of Trust.
MAKER:
------
/s/ JAMES M. SAGHI
--------------------------------------
JAMES M. SAGHI
15