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| 8-K - WEST COAST BANCORP /NEW/OR/ | v170710_8k.htm |
Exhibit
99.1
AMENDMENT
NO. 1 TO BULK PURCHASE AND SALE AGREEMENT
This
Amendment No. 1 to Bulk Purchase and Sale Agreement (this "Amendment"), dated
December 30, 2009, is between West Coast Bank, an Oregon bank ("Seller"), and
S-CAP 09-5080, LLC, a Delaware limited liability company ("Purchaser"), and
amends the Bulk Purchase and Sale Agreement, made as of December 30, 2009,
between Seller and Purchaser (the "Agreement"). Seller and Purchaser
agree as follows:
1. The
Agreement is amended by restating the first sentence of Section 5 in its
entirety as follows: "This transaction shall close on or before 12:00
p.m. (Pacific) on December 31, 2009 (the "Closing Date")." All
references to "December 30, 2009" in the Agreement are revised to be references
to "December 31, 2009."
2. All
other terms and conditions of the Agreement not expressly modified by this
Amendment remain in full force and effect.
3. This
Amendment is governed by the laws of the State of Oregon, without reference to
its conflict of law principles.
4. This
Amendment may be executed in any number of counterparts, all of which when taken
together shall constitute one instrument.
The duly
authorized representatives of the undersigned have executed and delivered this
Amendment No. 1 to Bulk Purchase and Sale Agreement effective on the date first
set forth above.
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WEST
COAST BANK, an Oregon bank
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S-CAP
09-5080, LLC, A Delaware Limited
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Liability
Company
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By:
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/s/ Hadley Robbins
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By:
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Sierra
Capital Investment Partners, Inc, a
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Hadley
Robbins, EVP
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Delaware
Corporation, Manager,
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By:
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/s/ Keffer C. Norris
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Name:
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President/CEO
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By:
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Name:
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V.
P. Acquisitions
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Exhibit
99.1
BULK
PURCHASE AND SALE AGREEMENT
This Bulk
Purchase and Sale Agreement (the "Agreement") is made as of the Effective Date
(as defined in Section 17.15 below) by and between WEST COAST BANK, an Oregon
banking corporation (hereinafter "Seller"), and S-CAP 09-5080, LLC, a Delaware
limited liability company (hereinafter "Purchaser").
RECITALS
A. Seller
has accepted a trustee's foreclosure deed or a deed in lieu of foreclosure
describing the improved real property described in Exhibit A attached
hereto.(
B. Seller
desires to sell to Purchaser and Purchaser desires to purchase the Property (as
defined in Section 2).
AGREEMENT
Now,
therefore, in consideration of the recitals above and the mutual covenants and
agreements contained below, Seller and Purchaser agree and covenant as
follows:
1. Agreement of Purchase and
Sale. Seller agrees to sell the Property (as defined in
Section 2 to Purchaser, and Purchaser agrees to purchase the Property (as
defined in Section 2) from Seller, in accordance with the terms and conditions
of this Agreement.
2. Property. The
"Property" as used in this Agreement shall include the real property set forth
in Exhibit A together with any structures or other improvements thereon, and any
easements, rights of way, water, water rights, minerals, mineral rights, and
other entitlements appurtenant to such real estate.
3. Indicative Bid
Price. The purchase price for the real property set forth in
Exhibit A shall be $12,670,000.00 (the "Purchase Price"). The
Purchase Price shall be payable in full in cash at closing.
4. Earnest
Money. Purchaser shall deposit cash ("Earnest Money") with
Clark County Title (the "Escrow Holder"), 1400 Washington Street, Suite 100,
Vancouver, Washington 98660, in the amount of Zero Dollars ($0) within one day
of the Effective Date. The Earnest Money shall be disbursed from
escrow as provided in Sections 6.3 and 6.4 below. If this sale
closes, the Earnest Money shall be credited toward payment of the Purchase
Price. Purchaser and Seller shall deliver a fully executed copy of
this Agreement to the Escrow Holder. Purchaser and Seller hereby
authorize their respective attorneys to execute and deliver into escrow any
additional or supplemental instructions as may be necessary or convenient to
implement the terms of this Agreement and to close this
transaction. In the event of any conflict between such additional or
supplemental instructions and the express terms of this Agreement, the terms of
this Agreement shall control.
5. Closing Date. This
transaction shall close on or before December 30, 2009 (the "Closing
Date"). The transaction shall be considered closed when the Purchase
Price has been received by Seller and the deed or deeds to the Property
described in Section 7.1.1 have been executed and delivered to
Purchaser.
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6. Conditions
to Closing.
6.1 Conditions Precedent to Purchaser's
Obligations. The close of escrow and Purchaser's obligations
with respect to the transaction contemplated by this Agreement are subject to
the satisfaction, not later than the dates set forth below, of the following
conditions, and the obligations of the parties with respect to such conditions
are as follows:
6.1.1
Title Insurance. It shall
be a condition to closing that as of the close of escrow, the Escrow Holder
shall have committed to issue the title policy to Purchaser required by Section
8 below. In
the event Seller does not deliver a title policy to Purchaser on a property or
the properties listed in Exhibit A insuring marketable title to be vested in
Purchaser as required by Section 8 below within the thirty (30) days after the
Closing Date, then Seller shall have an obligation, upon notice by
Purchaser, to repurchase such property or properties at the agreed upon Purchase
Price set forth on Exhibit A. Purchaser shall give Seller
fifteen (15) days notice that Purchaser has elected to require
Seller to repurchase such property or properties. If Seller cannot cause the
required title policy to be issued within said fifteen (15) days, then Seller
shall within five (5) days deposit in escrow the total amount of the
Purchase Price for such property or
properties. Purchaser shall execute and deliver to escrow deeds
reconveying such property or properties to Seller, which deeds shall include a
warranty that Purchaser has not encumbered such property or properties, and any
additional transfer documentation reasonably deemed necessary by
Seller.
6.1.2 Value of
Property. Purchaser has obtained broker price opinions of the
value of the Property or Purchaser has undertaken such other investigation of
the value of the Property as it deems appropriate and confirms by this Agreement
that the Purchase Price is acceptable.
6.1.3 Lease Review. It
shall be a condition to closing that a copy of any leases affecting all or any
portion of the Property of which Seller has actual knowledge ("Leases") be
delivered to Purchaser and approved as provided below. On or before
December 24, 2009, Seller shall deliver or cause to be delivered to Purchaser
copies of the Leases. Purchaser shall have the right to review and
approve the Leases in its sole discretion on or prior to December 29,
2009. Purchaser's failure to respond timely shall constitute
Purchaser's approval of the Lease provided. Unless Purchaser
determines that the Leases are unacceptable and terminates this Agreement,
Purchaser shall take title to the Property subject to all Leases and the rights
of tenants named therein.
6.1.4 Site
Study. Purchaser has had the opportunity to engage consultants
or engineers of Purchaser's choosing to conduct site studies of the Property as
Purchaser deems necessary. Purchaser and its agents have had the
right to enter the Property to make such tests, inspections, studies, and other
investigations as Purchaser may require, at Purchaser's expense and
risk. Purchaser shall indemnify and hold Seller harmless from any
loss, damage, or claim arising out of Purchaser's access to the Property for the
purpose of making tests, inspections, studies, and other
investigations. Purchaser is satisfied with the condition of the
Property.
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6.1.5 Seller's
Deliveries. It shall be a condition to closing that Seller
shall have timely delivered each and every item to be delivered by Seller
pursuant to this Agreement.
The
conditions set forth in this Section 6.1 are solely for the benefit of Purchaser
and may be waived only by Purchaser. Purchaser shall at all times
have the right to waive any condition. Such waiver or waivers shall
be in writing to Seller. Purchaser may propose to waive the
conditions as to some but not all of the lots that comprise the Property, but
Seller shall not be obligated to allow Purchaser to do so. In the
event Seller, in its sole discretion, permits Purchaser to waive the conditions
with respect to less then all of said lots, the lots for which the conditions
have not been waived shall be removed from this Agreement, and the Purchase
Price for the remaining lots shall be adjusted pursuant to a written agreement
entered into by Seller and Purchaser at such time.
6.2 Conditions Precedent to Seller's
Obligations. The close of escrow and Seller's obligations with
respect to the transactions contemplated by this Agreement are subject to
Purchaser's delivery to the Escrow Holder on or before the Closing Date, for
disbursement as provided herein, of the Purchase Price, Purchaser's share of
adjustments and prorations, and the documents and materials described in Section
7.2.
6.3 Failure of Purchaser's
Conditions. In the event any of the conditions set forth in
Sections 6.1.1 through 6.1.4 are not timely satisfied or waived, this Agreement,
the escrow, and the rights and obligations of Purchaser and Seller under this
Agreement shall terminate, except as otherwise provided herein, and the Escrow
Holder is hereby instructed to promptly return the Earnest Money to Purchaser
(minus the amount of any cancellation charges required to be paid by Purchaser
under Section 6.5).
6.4 Satisfaction of Purchaser's
Conditions. In the event all of the conditions stated in
Sections 6.1.1 through 6.1.4 are satisfied or waived, the Escrow Holder shall
deliver all the Earnest Money to Seller promptly upon Seller's request and the
Earnest Money shall thenceforth be nonrefundable to Purchaser and shall be the
sole property of Seller.
6.5 Cancellation Fees and
Expenses. In the event this escrow terminates because of the
nonsatisfaction of any condition for a reason other than the default of Seller
or Purchaser under this Agreement, any cancellation charges required to be paid
to the Escrow Holder shall be borne equally by Seller and
Purchaser. In the event this escrow terminates because of Seller's
default, the cancellation charges required to be paid to the Escrow Holder shall
be borne by Seller. In the event this escrow terminates because of
Purchaser's default, any cancellation charges required to be paid to the Escrow
Holder shall be borne by Purchaser.
7. Deliveries
to Escrow Holder.
7.1 By Seller. On or
before the Closing Date, Seller shall deliver the following in escrow to the
Escrow Holder:
7.1.1 Deed. One or more
statutory bargain and sale deeds, substantially in the form attached as Exhibits B and B-1,
as applicable, duly executed and acknowledged in recordable form by Seller,
conveying the Property to Purchaser, subject only to nondelinquent property
taxes, the Permitted Exceptions, and other matters that may be approved in
writing by Purchaser.
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7.1.2 Nonforeign
Certification. Seller represents and warrants that it is not a
"foreign person" as defined in IRC §1445. Seller will give an
affidavit to Purchaser to this effect in the form required by that statute and
related regulations.
7.1.3 Tax Affidavit. In
the event the conveyance of the Property is subject to an excise tax or transfer
tax, Seller shall sign and deliver an affidavit or other form required by the
applicable jurisdiction.
7.1.4 Proof of
Authority. Such proof of Seller's authority and authorization
to enter into this Agreement and consummate the transaction contemplated by it,
and such proof of the power and authority of the persons executing and/or
delivering any instruments, documents, or certificates on behalf of Seller to
act for and bind Seller, as may be reasonably required by the Escrow Holder
and/or Purchaser.
7.1.5 Assignment and Assumption of
Leases. If there are any Leases affecting the Property, an
assignment and assumption of leases, substantially in the form attached as Exhibit C, duly
executed and acknowledged by Seller in recordable form, assigning to Purchaser
all of Seller's right, title, and interest in and to all the Leases and tenant
deposits.
7.1.6 Tenant Notification
Letter. If there are any Leases affecting the Property, a
letter to tenants, duly executed by Seller and dated as of the Closing Date,
satisfactory in form and substance to Purchaser, notifying each tenant
that: (i) the Property has been sold to Purchaser; (ii) all of
Seller's right, title, and interest in and to the Leases and tenant deposits
have been assigned to Purchaser; and (iii) commencing immediately, all rent and
other payments and any notices under the Leases are to be paid and sent to
Purchaser.
7.2 By Purchaser. On or
before the Closing Date, Purchaser shall deliver the following in escrow to the
Escrow Holder:
7.2.1 Purchase Price. The
Purchase Price in accordance with Section 3 above.
7.2.2 Tax Affidavit. In
the event the conveyance of the Property is subject to an excise tax or transfer
tax, Purchaser shall sign and deliver an affidavit or other form required by the
applicable jurisdiction.
7.2.3 Prorations. The
amount due Seller, if any, after the prorations are computed in accordance with
Section 10 below.
7.2.4 Assignment and Assumption of
Leases. If there are any Leases affecting the Property, an
assignment and assumption of Leases duly executed and acknowledged by Purchaser
in the form attached hereto as Exhibit
C.
7.2.5 Proof of
Authority. Such proof of Purchaser's authority and
authorization to enter into this Agreement and consummate the transaction
contemplated by it, and such proof of the power and authority of the persons
executing and/or delivering any instruments, documents, or certificates on
behalf of Purchaser to act for and bind Purchaser, as may be reasonably required
by the Escrow Holder and/or Seller.
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7.3 Deliveries to Purchaser at
Closing. Seller shall relinquish possession of the Property to
Purchaser at close of escrow. On or before the Closing Date, Seller
shall deliver to Purchaser possession of the following:
7.3.1 Keys. All keys in
the possession of Seller to all entrance doors to the improvements on the
Property, which keys shall be properly tagged for identification.
7.3.2 Leases. Originals
of any Leases or, to the extent an original Lease is unavailable, a copy of it
with a certificate executed by Seller warranting the authenticity of the
copy.
8. Title Insurance. It shall be a condition
to closing that Purchaser receive a commitment from the Escrow Holder to issue,
at Seller's expense, a standard ALTA owner's title insurance policy in the
amount of the Purchase Price, insuring title to the Property to be vested in
Purchaser or its nominees, subject only to the standard printed exceptions,
nondelinquent real property taxes, and the Permitted
Exceptions. Seller will also indemnify Purchaser against all mechanic
liens stemming from the time period prior to Purchaser’s purchase of the
Property. Purchaser may, if Purchaser so elects, cause the title
policy to be issued as an extended coverage policy, provided Purchaser pays the
additional premium and all survey costs associated therewith.
9. Adjustments. Seller shall pay for the
standard coverage title insurance policy, one-half of all escrow fees and costs,
all excise and transfer taxes, and Seller's share of prorations pursuant to
Section 10 below. Purchaser shall pay recording charges, one-half of
all escrow fees and costs, and Purchaser's share of prorations pursuant to
Section 10 below. Purchaser and Seller shall each pay its own legal
and professional fees of other consultants incurred by Purchaser and Seller,
respectively.
10. Prorations.
10.1 General. Rental,
revenues, and other income, if any, from the Property and presently existing
taxes, assessments, improvement bonds, and other expenses, if any, affecting the
Property, shall be prorated as of the day following the Closing
Date. Any assessments that may be paid in installments at the option
of the owner shall be prorated as though the owner has elected to pay over the
longest available period of time. For the purpose of calculating
prorations, Purchaser shall be deemed to be in title to the Property and,
therefore, entitled to the income and responsibility for the expenses for the
entire day following the Closing Date.
10.2 Recapture of Property
Taxes. Any recapture of property taxes (such as might occur as
a result of an act such as a change in the use of the Property that affects a
special property tax designation, including without limitation special
designations for farm, timber, or historical uses of the Property) that accrues
on or after the Closing Date shall be allocated to Purchaser even if the
computation of the amount of such recapture taxes is based on taxes paid prior
to the Closing Date. Any recapture of property taxes that accrues
prior to the Closing Date shall be allocated to Seller, but if the recapture
occurred as a result of an action taken at the request of or for the benefit of
Purchaser after the Effective Date, such recaptured property taxes shall be
allocated to Purchaser.
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10.3
Delinquent
Rentals. Rentals are delinquent when payment of rent is due on
or before the Closing Date but has not been made. Delinquent rentals
shall be prorated between Purchaser and Seller as specified above but not until
the rents are actually collected. Seller shall have the right to
collect any delinquent rental, but shall not have the obligation to do
so. Delinquent rentals collected by Seller or Purchaser, net of costs
of collection (including attorney fees), shall be applied first against sums
owed to Seller for delinquent rent before the Closing Date, and then to
Purchaser for delinquent rent after the Closing Date. Purchaser and
Seller agree that any payments due to either party as a result of collected
delinquent rentals shall be payable when received.
10.4
Tenant
Deposits. The amount of all tenant deposits held under the
Leases shall be credited to the account of Purchaser at closing.
11. Disbursements and Other Actions by
Escrow Holder. At closing, the Escrow Holder shall do the
following:
11.1
Funds. Disburse all
funds deposited with the Escrow Holder by Purchaser in payment of the Purchase
Price as follows:
11.1.1 Deduct
all items chargeable to the account of Seller pursuant to Section 9 and Section
10 above.
11.1.2 Disburse
the balance of the Purchase Price to Seller promptly upon closing.
11.2 Delivery. Deliver
the deed or deeds to Purchaser. Purchaser may thereafter cause the
deed or deeds to be recorded in the appropriate official records.
11.3 Tax Affidavit. File
any excise tax affidavit or transfer tax form with the applicable governmental
entity.
11.4 Title Policy. Issue
the title policy to Purchaser.
11.5 Disbursement of
Documents. Disburse to Purchaser the FIRPTA certificate, one
copy of the assignment and assumption of leases, the tenant notification
letters, and any other documents (or copies thereof) deposited into escrow by
Seller pursuant hereto. Disburse to Seller one copy of the assignment
and assumption of leases and any other document (or copies thereof) deposited
into escrow by Purchaser pursuant hereto.
12. Property
"As-Is."
12.1 No Representations and
Warranties. Purchaser is purchasing the Property for
investment purposes and not for personal or consumer
purposes. Purchaser specifically acknowledges and agrees that Seller
is selling and Purchaser is purchasing the Property on an "as is with all
faults" basis and that Purchaser is not relying on any representations or
warranties of any kind, whatsoever, express or implied, from Seller or its
agents as to any matters concerning the Property. No person acting on
behalf of Seller is authorized to make, and by execution hereof, Purchaser
acknowledges and agrees that, except for the representations, warranties,
covenants, and agreements expressly set forth in this Agreement, Seller has not
made, does not make and specifically negates and disclaims any representations,
warranties, covenants, or agreements of any kind or character whatsoever,
whether express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to:
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12.1.1 the
value of the Property;
12.1.2 the
income to be derived from the Property;
12.1.3 the
suitability of the Property for any and all activities and uses which Purchaser
may conduct thereon, including any development of the Property;
12.1.4 the
habitability, merchantability, marketability, profitability or fitness for a
particular purpose of the Property;
12.1.5 the
manner, quality, state of repair or lack of repair of the Property;
12.1.6 the
nature, quality or condition of the Property, including without limitation, the
water, soil and geology;
12.1.7 the
compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or
body;
12.1.8 the
manner, condition or quality of the construction or materials, if any,
incorporated into the Property;
12.1.9 compliance
with any law, rule, or regulation pertaining to hazardous wastes or
substances;
12.1.10 the
presence or absence of hazardous wastes or substances at, on, under, or adjacent
to the Property;
12.1.11 the
content, completeness, or accuracy of any materials prepared by Seller or
compiled by Seller and delivered to Purchaser;
12.1.12 the
existence or location of any wetlands or other protected habitat;
12.1.13 the
conformity of the Property to past, current or future applicable zoning or
building requirements;
12.1.14 efficiency
or condition of any drainage;
12.1.15 whether
all or a portion of the Property may be located on or near an earthquake fault
line or located in an earthquake zone or tsunami zone;
12.1.16 the
existence of vested land use, zoning or building entitlements affecting the
Property;
12.1.17 the
existence, quality, nature, adequacy and physical condition of utilities serving
the Property;
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12.1.18 access
to and from the Property to roads and highways and beach access to and from the
Property;
12.1.19 the
economics of development or operation of the Property; or
12.1.20 with
respect to any other matter concerning the Property, including any and all such
matters referenced, discussed or disclosed in any documents delivered by Seller
to Purchaser, in any public records of any governmental agency or entity or
utility company or in any other documents available to Purchaser.
12.2 Waiver and
Release. By paying the Purchase Price, Purchaser waives all
claims for rescission of this sale or deduction or return of all or part of the
Purchase Price due to any defect or vice in the land, improvements or component
parts thereof. Additionally, Purchaser and anyone claiming by,
through, or under Purchaser hereby fully and irrevocable waives and releases
Seller and each of its shareholders, employees, officers, managers, members,
representatives, agents, successors and assigns (collectively "Seller Party")
from any and all claims that it may now have or hereafter acquire against any
Seller Party for and against any costs, losses, demands, penalties, fines,
liens, judgments, injuries, liabilities, damages, expenses, demands, claims,
actions or causes of action, whether direct or indirect, known or unknown,
foreseen or unforeseen, arising from or related to the Property, or any portion
thereof, and/or any construction defects, errors, omissions, or other
conditions, latent or otherwise, geotechnical and seismic, affecting the
Property, or any portion thereof, including, without limitation (i) the
environmental condition of the Property or any law applicable thereto and (ii)
the items described in Section 12.1.
12.3 Indemnity. Purchaser
hereby agrees to defend, indemnify and hold each Seller Party harmless from any
and all claims, demands, causes of action, liabilities, fees, and expenses
(including without limitation reasonable attorney fees and expenses and court
costs) asserted by or accruing in favor of any third party on account of
property damage or personal injury related to or arising out of acts or events
occurring during Purchaser's period of ownership of the Property or any claim or
liability arising out of the condition of the Property.
12.4 Survival. The
provisions of this Section 12 shall indefinitely survive the closing hereunder
or termination of this Agreement and shall not be merged into the
deed.
13. Default;
Remedies.
13.1 Default by
Purchaser. In the event the conditions set forth in Section
6.1 are fully satisfied or waived by Purchaser and Purchaser nevertheless fails,
through no fault of Seller, to close its acquisition of the Property, retention
of the Earnest Money by Seller shall be Seller's sole
remedy. Purchaser and Seller agree that it would be impractical and
extremely difficult to estimate the damages suffered by Seller as a result of
Purchaser's failure to complete the purchase of the Property pursuant to this
Agreement, and that under the circumstances existing as of the date of this
Agreement, the Earnest Money represents a reasonable estimate of the damages
which Seller will incur as a result of such failure. Said amount will
be the full, agreed and liquidated damages for the breach of this Agreement by
Purchaser. The payment of such amount is not intended as a forfeiture
or penalty, but is intended to constitute liquidated damages to
Seller. Upon default by Purchaser as stated above, this Agreement may
be terminated by Seller by written notice to Purchaser and neither party will
have any further rights or obligations hereunder, except for the right of Seller
to collect such liquidated damages from Purchaser and except for such rights and
obligations as expressly survive the termination of this
Agreement.
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13.2 Default by
Seller. In the event Seller fails to perform its obligations
under this Agreement, Purchaser shall be entitled to elect to: (a)
enforce specific performance of this Agreement; (b) recover damages from Seller
equal to the amount actually expended by Purchaser in connection with its
investigation of the Property; or (c) rescind this Agreement and receive a
return of the Earnest Money. As a material inducement to Seller,
Purchaser waives the right to recover any consequential damages, any damages
measured by the loss of the benefit of the bargain, any special or indirect
damages, and any damages other than the direct out-of-pocket damages authorized
above.
14. Seller's Limited Right to Continue to
Market the Property. Upon execution and delivery of this
Agreement and so long as this Agreement is in effect, Seller will not market a
substantial portion of the Property or sell a substantial portion of the
Property to an institutional buyer on a bulk sale basis.
15. Damage or Destruction;
Condemnation. Until close of escrow,
the risk of loss shall be retained by Seller. In the event all or any
material portion of the Property is damaged, destroyed, or condemned or
threatened with condemnation before the close of escrow, Purchaser may terminate
this Agreement. In such event, escrow will be terminated, the Earnest
Money deposit and accrued interest thereon will be promptly returned to
Purchaser, and this Agreement shall have no further force or effect
whatsoever. If a nonmaterial portion of the Property is destroyed or
condemned, this Agreement shall remain in full force and effect, including,
without limitation, Purchaser's obligation to close this transaction as provided
for herein and to pay the full Purchase Price to Seller. In such
event, Purchaser shall be assigned all insurance proceeds or condemnation
proceeds payable to or for the account of Seller.
16. Assignment. Purchaser shall have the
right to assign its rights and obligations under this Agreement, upon giving
prior written notice to Seller, to any entity in which Purchaser holds a
majority equity interest, as long as the assignee expressly assumes the
obligations of Purchaser and the assignee demonstrates to Seller's satisfaction
that it has the financial ability to perform. Any such assignee shall
succeed to all the rights and remedies under this
Agreement. Notwithstanding the foregoing, no such assignment shall
relieve Purchaser from its liability under this Agreement. In the
event of assignment, the assignor waives notice, presentment, any defenses
arising from subsequent modification of this Agreement, and any defenses other
than those that may be raised by the assignee.
17. Miscellaneous.
17.1 Time of
Essence. Time is of the essence of Purchaser's obligations
under this Agreement.
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17.2 Survival. Except as
expressly otherwise provided herein, the provisions of this Agreement that
contemplate performance after closing and the obligations of the parties not
fully performed at closing shall survive closing and be fully enforceable
thereafter.
17.3 Counting of
Days. In computing any period of time described in this
Agreement, the day of the act or event after which the designated period of time
begins to run is not to be included and the last day of the period so computed
is to be included. The last day of any period of time described
herein shall be deemed to end at 5:00 p.m., Portland, Oregon,
time. Whenever a time period set forth in this Agreement would
otherwise expire on a Saturday, Sunday, or banking or federally recognized
holiday, such time period shall be deemed extended to the next following day
which is not one of the foregoing. Whenever a time period set forth
in this Agreement extends beyond the scheduled Closing Date, the Closing Date
shall be extended to allow Purchaser the full benefit of such time period,
except that in no event shall the Closing Date be later than December 30,
2009.
17.4 Notices. Notices under this
Agreement shall be in writing and shall be effective when actually delivered or
two days after being deposited in the United States Mails, certified, return
receipt requested, directed to the other party at the address set forth below,
or to such other address as the party may indicate by written notice to the
other party, or when sent by facsimile directed to the other party at the
facsimile number set forth below, or such other facsimile number as the party
may indicate by written notice to the other party:
|
If
to Seller:
|
West
Coast Bank
|
|
|
Attn: Lisa
Dow
|
||
|
500
E. Broadway, Suite 300
|
||
|
Post
Office Box 1087
|
||
|
Vancouver,
WA 98666
|
||
|
Fax: (360)
695-4788
|
||
|
Telephone: (360)
906-4260
|
||
|
With
a copy to:
|
Jonathon
L. Goodling
|
|
|
Miller
Nash llp
|
||
|
111
S.W. Fifth Avenue, Suite 3400
|
||
|
Portland,
OR 97204
|
||
|
Fax: (503)
205-8539
|
||
|
Telephone: (503)
205-2522
|
||
|
If
to Purchaser:
|
Sierra
Capital Investment Partners, Inc
|
|
|
Attn: Keffer
C. Norris, President/CEO
|
||
|
3655
Nobel Drive, Suite 330
|
||
|
San
Diego, CA 92122
|
||
|
Fax:
(858) 630-2053
|
||
|
Telephone: (858)
509-3495
|
-10-
|
Sierra
Capital Investment Partners, Inc
|
||
|
Attn:
Dann Schuetz, V.P. Acquisitions
|
||
|
3655
Nobel Drive, Suite 330
|
||
|
San
Diego, CA 92122
|
||
|
Fax: (858)
630-2053
|
||
|
Telephone: (858)
509-3495
|
||
|
With
a copy to:
|
Sierra
Capital Investment Partners, Inc
|
|
|
Attn: David
John Ruyle, Esq.
|
||
|
3655
Nobel Drive, Suite 330
|
||
|
San
Diego, CA 92122
|
||
|
Fax: (858)
630-2053
|
||
|
Telephone: (858)
509-3495
|
17.5 Partial
Invalidity. If any term or provision of this Agreement or the
application to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and each such term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
17.6 Waivers. No waiver
of any breach of any covenant or provision contained herein shall be deemed a
waiver of any preceding or succeeding breach thereof, or of any other covenant
or provision herein contained. No extension of time for performance
of any obligation or act shall be deemed an extension of the time for
performance of any other obligation or act.
17.7 Successors and
Assigns. This Agreement shall be binding on and shall inure to
the benefit of the permitted successors and permitted assigns of the parties to
it.
17.8 Attorney Fees. In
the event a party to this Agreement brings any action or suit against another
party to this Agreement by reason of any breach of any of the covenants,
agreements, or provisions on the part of the other party arising out of this
Agreement, then in that event the prevailing party shall be entitled to have and
recover from the other party all costs and expenses of the action or suit,
including actual attorney fees, costs, and expenses at trial and on
appeal.
17.9 Entire
Agreement. This Agreement (including any exhibits attached to
it) is the final expression of, and contains the entire agreement between, the
parties with respect to the subject matter of the Agreement and supersedes all
prior understandings with respect to it. This Agreement may not be
modified, changed, supplemented, or terminated, nor may any obligations under it
be waived, except by written instrument signed by the party to be charged or by
its agent duly authorized in writing or as otherwise expressly permitted
herein. The parties do not intend to confer any benefit on any
person, firm, or corporation other than the parties hereto.
-11-
17.10
Construction. Headings
at the beginning of each paragraph and subparagraph are solely for the
convenience of the parties and are not a part of this
Agreement. Whenever required by the context of this Agreement, the
singular shall include the plural, and the masculine shall include the feminine,
and vice versa. This Agreement shall not be construed as if it had
been prepared by one of the parties, but rather as if both parties had prepared
it. Unless otherwise indicated, all references to paragraphs and
subparagraphs are to this Agreement. All exhibits referred to in this
Agreement are attached and incorporated by this reference.
17.11
Governing
Law. The
parties expressly agree that this Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the state in
which the Property is located.
17.12
Brokers. Purchaser
represents that Purchaser is not required to pay any real estate commission or
any other fee or similar charge to any person or entity in connection with this
Agreement or the transactions contemplated by this
Agreement. Purchaser shall defend, indemnify, and hold Seller
harmless from and against any and all claims or demands with respect to fees or
other compensation asserted as a result of Purchaser's engagement of a broker in
connection with this Agreement. Seller shall defend, indemnify, and
hold Purchaser harmless from and against any and all claims or demands with
respect to fees or other compensation asserted as a result of Seller's
engagement of a broker in connection with this Agreement.
17.13
Oregon Statutory
Disclaimer. The following notice is provided with respect to
any portion of the Property that is located in Oregon: 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 THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR
SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST
PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE SIGNING OR
ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE
ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO
195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007. 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 THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR
PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE
LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO
INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS
195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424,
OREGON LAWS 2007.
17.14
Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which, taken together, shall constitute one
instrument. The parties agree to accept facsimile and .pdf signature
pages and hereby waive any defense to the validity of this Agreement based on
any such facsimile or .pdf copies of signatures.
17.15
Effective
Date. The "Effective Date" of this Agreement is the later of
the two dates shown beneath the parties' signatures below.
-12-
IN
WITNESS WHEREOF, the parties have executed this Agreement effective on the date
first set forth above.
|
Seller:
|
WEST
COAST BANK, an Oregon banking
corporation
|
||
|
By:
|
/s/ Hadley Robbins
|
||
|
Name:
|
Hadley Robbins
|
||
|
Title:
|
Executive Vice President
|
||
|
Date:
|
December 29, 2009
|
||
|
Purchaser:
|
|||
|
S-CAP
09-5080, LLC, A Delaware Limited
Liability
Company
|
|||
|
By:
Sierra Capital Investment Partners, Inc, a
Delaware
Corporation, Manager,
|
|||
|
By:
|
|||
|
Name:
|
/s/ Keffer C. Norris
|
||
|
Title:
|
President/CEO
|
||
|
Date:
|
December 30, 2009
|
||
|
Name:
|
/s/ Jim Matheson
|
||
|
Title:
|
V.P. of Acquisitions
|
||
|
Date:
|
December 30,
2009
|
||
-13-
EXHIBIT
A
Real Property Descriptions
and Price Memorandum
This
Price Memorandum is attached pursuant to the Bulk Purchase and Sale Agreement
between West Coast Bank, as seller, and, S-CAP 09-5080, LLC, as
Purchaser. By signing the Agreement, the parties hereby agree that
the purchase price for the improved real property identified below shall be the
amount or amounts set forth below:
|
Address
|
City
|
State
|
Zip
|
Current
List
|
Purchase
Price
|
|||||||||||
|
255
29th Street
|
Astoria
|
OR
|
97103 | $ | 399,000.00 | $ | 239,525.00 | |||||||||
|
22912
NE Kaskillah Drive
|
Battle
Ground
|
WA
|
98604 | $ | 439,900.00 | $ | 255,600.00 | |||||||||
|
900
SE 9th Circle
|
Battle
Ground
|
WA
|
98604 | $ | 215,000.00 | $ | 117,150.00 | |||||||||
|
6050
E Street
|
Bay
City
|
OR
|
97141 | $ | 399,000.00 | $ | 282,425.00 | |||||||||
|
342
E. Birnie Slough Rd
|
Cathlamet
|
WA
|
98612 | $ | 205,000.00 | $ | 99,400.00 | |||||||||
|
34212
Brittany Court
|
Chiloquin
|
OR
|
97624 | $ | 159,900.00 | $ | 102,950.00 | |||||||||
|
34535
Castle Dr.
|
Chiloquin
|
OR
|
97624 | $ | 159,900.00 | $ | 102,950.00 | |||||||||
|
34541
Castle Drive
|
Chiloquin
|
OR
|
97624 | $ | 159,900.00 | $ | 102,950.00 | |||||||||
|
34659
Castle Dr.
|
Chiloquin
|
OR
|
97624 | $ | 255,000.00 | $ | 103,675.00 | |||||||||
|
290
NE Sea Star Drive
|
Depoe
Bay
|
OR
|
97341 | $ | 550,000.00 | $ | 260,975.00 | |||||||||
|
371
SE Oak View Lane
|
Estacada
|
OR
|
97023 | $ | 305,000.00 | $ | 160,160.00 | |||||||||
|
201
E Battles Lane
|
Grapeview
|
WA
|
98546 | $ | 255,000.00 | $ | 138,450.00 | |||||||||
|
2697
SE Elliott Dr
|
Gresham
|
OR
|
97080 | $ | 475,000.00 | $ | 316,800.00 | |||||||||
|
12469
SE Capri Court
|
Happy
Valley
|
OR
|
97086 | $ | 660,000.00 | $ | 396,000.00 | |||||||||
|
15067
SE Bunker Hill Court
|
Happy
Valley
|
OR
|
97086 | $ | 535,000.00 | $ | 324,000.00 | |||||||||
|
15557
SE Chelsea Morning Dr
|
Happy
Valley
|
OR
|
97086 | $ | 599,000.00 | $ | 396,000.00 | |||||||||
|
1000
Tasha Way
|
Lebanon
|
OR
|
97355 | $ | 292,000.00 | $ | 160,875.00 | |||||||||
|
1005
Tasha Way
|
Lebanon
|
OR
|
97355 | $ | 258,000.00 | $ | 157,300.00 | |||||||||
|
1029
Mountain River Dr.
|
Lebanon
|
OR
|
97355 | $ | 160,875.00 | |||||||||||
|
2106
Mayfly St.
|
Lebanon
|
OR
|
97355 | $ | 150,150.00 | |||||||||||
|
2112
Mayfly Street
|
Lebanon
|
OR
|
97355 | $ | 259,900.00 | $ | 146,575.00 | |||||||||
|
2120
Mayfly St.
|
Lebanon
|
OR
|
97355 | $ | 259,900.00 | $ | 150,150.00 | |||||||||
|
2132
Mayfly St.
|
Lebanon
|
OR
|
97355 | $ | 261,000.00 | $ | 150,150.00 | |||||||||
|
2156
Mayfly St.
|
Lebanon
|
OR
|
97355 | $ | 316,250.00 | $ | 160,875.00 | |||||||||
|
2157
Mayfly Street
|
Lebanon
|
OR
|
97355 | $ | 299,000.00 | $ | 168,025.00 | |||||||||
|
2160
Mayfly St.
|
Lebanon
|
OR
|
97355 | $ | 302,000.00 | $ | 153,725.00 | |||||||||
|
2172
Mayfly St.
|
Lebanon
|
OR
|
97355 | $ | 153,725.00 | |||||||||||
|
2188
Mayfly Street
|
Lebanon
|
OR
|
97355 | $ | 269,000.00 | $ | 150,150.00 | |||||||||
|
2193
Mayfly St.-2nd deck
|
Lebanon
|
OR
|
97355 | $ | 309,900.00 | $ | 168,025.00 | |||||||||
|
2194
Mayfly Street
|
Lebanon
|
OR
|
97355 | $ | 249,900.00 | $ | 149,100.00 | |||||||||
|
2311
Mountain River Dr.
|
Lebanon
|
OR
|
97355 | $ | 289,900.00 | $ | 160,875.00 | |||||||||
-14-
|
Address
|
City
|
State
|
Zip
|
Current
List
|
Purchase
Price
|
|||||||||||
|
2363
Mountain River Drive
|
Lebanon
|
OR
|
97355 | $ | 299,000.00 | $ | 171,600.00 | |||||||||
|
2375
Mountain River Drive
|
Lebanon
|
OR
|
97355 | $ | 285,000.00 | $ | 160,875.00 | |||||||||
|
2380
Mountain River Drive
|
Lebanon
|
OR
|
97355 | $ | 152,650.00 | |||||||||||
|
2381
Mountain River Drive
|
Lebanon
|
OR
|
97355 | $ | 313,900.00 | $ | 160,875.00 | |||||||||
|
2387
Mountain River Dr.
|
Lebanon
|
OR
|
97355 | $ | 309,000.00 | $ | 171,600.00 | |||||||||
|
2407
Kokanee Way
|
Lebanon
|
OR
|
97355 | $ | 281,900.00 | $ | 164,450.00 | |||||||||
|
960
Koi Alley
|
Lebanon
|
OR
|
97355 | $ | 280,000.00 | $ | 139,425.00 | |||||||||
|
987
Robbins Way
|
Lebanon
|
OR
|
97355 | $ | 275,000.00 | $ | 160,875.00 | |||||||||
|
990
Koi Alley
|
Lebanon
|
OR
|
97355 | $ | 289,900.00 | $ | 143,000.00 | |||||||||
|
990
Robbins Way
|
Lebanon
|
OR
|
97355 | $ | 250,000.00 | $ | 153,725.00 | |||||||||
|
2275
NE 36th Street
|
Lincoln
City
|
OR
|
97367 | $ | 379,000.00 | $ | 232,375.00 | |||||||||
|
2311
NE 36th
|
Lincoln
City
|
OR
|
97367 | $ | 349,000.00 | $ | 214,500.00 | |||||||||
|
2830
SW Coast Avenue
|
Lincoln
City
|
OR
|
97367 | $ | 279,900.00 | $ | 199,485.00 | |||||||||
|
8237
Dune Lake Road SE
|
Moses
Lake
|
WA
|
98837 | $ | 399,000.00 | $ | 195,250.00 | |||||||||
|
8410
North Swenson Street
|
Portland
|
OR
|
97203 | $ | 57,200.00 | |||||||||||
|
7625
Canyon Road East
|
Puyallup
|
WA
|
98443 | $ | 369,900.00 | $ | 198,800.00 | |||||||||
|
73323
Fern Hill Road
|
Rainier
|
OR
|
97048 | $ | 158,900.00 | $ | 49,700.00 | |||||||||
|
1704
Bartlett Hill Dr NW
|
Salem
|
OR
|
97304 | $ | 449,900.00 | $ | 271,700.00 | |||||||||
|
10536
NW Pacific Coast Hwy
|
Seal
Rock
|
OR
|
97376 | $ | 799,000.00 | $ | 344,700.00 | |||||||||
|
15685
SW Oregon Street
|
Sherwood
|
OR
|
97140 | $ | 131,350.00 | |||||||||||
|
336
Angus Court
|
Terrebonne
|
OR
|
97760 | $ | 214,900.00 | $ | 144,840.00 | |||||||||
|
446
Angus Ct
|
Terrebonne
|
OR
|
97760 | $ | 204,000.00 | $ | 134,900.00 | |||||||||
|
1660
41st Ct.
|
WASHOUGAL
|
WA
|
98671 | $ | 113,600.00 | |||||||||||
|
1670
41st Ct.
|
WASHOUGAL
|
WA
|
98671 | $ | 163,300.00 | |||||||||||
|
1817
North 8th Street
|
Washougal
|
WA
|
98671 | $ | 374,900.00 | $ | 244,950.00 | |||||||||
|
1886
North 6th Street
|
Washougal
|
WA
|
98671 | $ | 318,950.00 | $ | 209,450.00 | |||||||||
|
1926
North 6th Street
|
Washougal
|
WA
|
98671 | $ | 304,600.00 | $ | 213,000.00 | |||||||||
|
3945
P St.
|
WASHOUGAL
|
WA
|
98671 | $ | 149,100.00 | |||||||||||
|
524,526,528 20th
Street
|
Washougal
|
WA
|
98671 | $ | 287,550.00 | |||||||||||
|
530,532,534 20th
Street
|
Washougal
|
WA
|
98671 | $ | 298,200.00 | |||||||||||
|
680
North R Street
|
Washougal
|
WA
|
98671 | $ | 327,000.00 | $ | 219,390.00 | |||||||||
|
823
North P Street
|
Washougal
|
WA
|
98671 | $ | 329,950.00 | $ | 213,000.00 | |||||||||
|
825
North P Court
|
Washougal
|
WA
|
98671 | $ | 287,900.00 | $ | 191,700.00 | |||||||||
|
832
North P Street
|
Washougal
|
WA
|
98671 | $ | 312,950.00 | $ | 202,350.00 | |||||||||
|
843
North P Street
|
Washougal
|
WA
|
98671 | $ | 298,900.00 | $ | 205,900.00 | |||||||||
|
2713
Eagle Creek Drive
|
White
City
|
OR
|
97503 | $ | 160,000.00 | $ | 106,500.00 | |||||||||
|
1031
SE McKinley Street
|
Woodburn
|
OR
|
97071 | $ | 209,000.00 | $ | 127,800.00 | |||||||||
|
286
Hillsdale Drive
|
Woodland
|
WA
|
98674 | $ | 426,000.00 | $ | 230,750.00 | |||||||||
| $ | 12,670,000.00 | |||||||||||||||
-15-
EXHIBIT
B
Oregon Bargain and Sale
Deed
When
recorded return to and
after
recording, all tax
statements
shall be sent to:
|
|
|
|
|
|
BARGAIN
AND SALE DEED
(Statutory
Form)
WEST COAST BANK, an Oregon
banking corporation, Grantor, conveys to ____________________________________________,
a __________ limited liability company, Grantee, the real property located in
_______ County, Oregon, legally described in Exhibit A attached
hereto.
The true
and actual consideration for this conveyance is $_________.
BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD
INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301, AND
195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS
2007. THIS INSTRUMENT DOES 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 THAT THE UNIT OF LAND BEING TRANSFERRED IS
A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO
VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON
LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS
30.930,
AND TO
INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS
195.300, 195.301, AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424,
OREGON LAWS 2007.
-16-
DATED
this __ day of ___________, 20__.
|
WEST
COAST BANK
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
State
of Washington
|
)
|
|
|
) ss.
|
||
|
County
of Clark
|
)
|
I certify
that I know or have satisfactory evidence that
is/are the person(s) who appeared before me, and said person(s)
acknowledged that he/she/they signed this instrument, on oath stated that
he/she/they was/were authorized to execute the instrument and acknowledged it as
the of
West Coast Bank, an Oregon banking corporation, to be the free and voluntary act
of such party for the uses and purposes mentioned in the
instrument.
Dated:
____________________, 2009.
|
Notary
Seal
|
||
|
Notary
Public for Washington
|
||
|
Name
of Notary
|
||
|
My
appointment
expires:_______________________________
|
-17-
EXHIBIT
B-1
Washington Bargain and Sale
Deed
RECORDING
REQUESTED BY
AND
WHEN RECORDED RETURN TO:
|
|
|
|
|
|
|
Grantors
|
:
|
|
|
Grantee
|
:
|
|
|
Abbreviated
Legal
|
:
|
|
|
Assessor’s
Tax Parcel No.
|
:
|
|
|
Other
Reference Nos.
|
:
|
BARGAIN
AND SALE DEED
Grantor,
_________________________, for and in consideration of________________, in hand
paid, bargains, sells, and conveys to Grantee, ____________________, the
following described real estate situated in the County of _____________, State
of Washington:
See Exhibit
A.
Subject
to all encumbrances of record and the rights of lessees and any other parties in
possession.
DATED
this ____ day of ____________, 20__.
|
GRANTOR:
|
|||
|
WEST
COAST BANK
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
State
of Washington
|
)
|
|
|
) ss.
|
||
|
County
of __________________________________
|
)
|
-18-
I certify
that I know or have satisfactory evidence that ________________ is the persons
who appeared before me, and said persons acknowledged that they signed this
instrument and acknowledged it to be their free and voluntary act for the uses
and purposes mentioned in the instrument.
Dated:
____________________, 20__.
|
Notary
Seal
|
||
|
Notary
Public for Washington
|
||
|
Name
of Notary
|
||
|
My
appointment
expires:_______________________________
|
-19-
EXHIBIT
C
ASSIGNMENT
AND ASSUMPTION OF LEASES
THIS
ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is dated December ___, 2009,
by and between WEST COAST
BANK, an Oregon banking corporation ("Seller"), and
____________________________ ("Purchaser"), with reference to the
following:
A. Seller
and Purchaser have entered into that certain Purchase and Sale Agreement
effective as of _____________, 2009, as it may be amended to date (the "Purchase
Agreement").
B. Pursuant
to the Purchase Agreement, Seller is selling to Purchaser, simultaneously with
the delivery of this Assignment and Assumption of Leases, certain real property
(the "Property") described in Exhibit A attached
hereto and incorporated herein by this reference.
C. Seller,
as lessor, is party to certain leases which relate to the rental of some or all
of the Property. Said interest in leases and all amendments or
modifications thereto are referred to herein, collectively, as the "Leases" and,
individually, as a "Lease."
D. Exhibit B attached
hereto and incorporated herein by this reference is a list of such leases
setting forth, to the best of Seller's knowledge, all Leases currently affecting
the Property and listing for each Lease: (a) the tenant, (b) the date
of the Lease, and (c) the address of the leased premises.
E. An
original of each of the Leases, or to the extent an original lease is not
available, a copy of it with a certificate executed by Seller warranting the
authenticity of the copy, together with any written amendments or modifications
thereto, will be supplied by Seller to Purchaser at the closing of the sale of
the Property.
NOW
THEREFORE, FOR VALUABLE CONSIDERATION, Seller and Purchaser agree as
follows:
1. Assignment. Seller
hereby assigns and transfers to Purchaser all of Purchaser's right, title, and
interest in and to the Leases, and all deposits and guaranty agreements with
respect thereto.
2. Assumption. Purchaser
hereby accepts the foregoing assignment and hereby assumes all of the duties,
obligations and responsibilities of the lessor under the Leases first arising
and accruing after the closing of the sale contemplated in the Purchase
Agreement. Purchaser further assumes the obligations of Seller to
tenants under the Leases with respect to any refundable deposits paid to Seller
by tenants, to the extent that Seller has transferred those deposits to
Purchaser. Purchaser hereby agrees to defend and indemnify Seller
from and against any and all claims, costs, liabilities, damages and expenses
(including related attorneys' fees) arising under or in connection with any of
the Leases and accruing after the closing of the transaction contemplated in the
Purchase Agreement.
-20-
3. Attorney
Fees. In the event of any litigation between Seller and
Purchaser arising under this Assignment or concerning the meaning or
interpretation of any provision hereof, the losing party shall pay the
prevailing party's costs and expenses of litigation, including, without
limitation, reasonable attorneys' fees at trial and upon appeal or petition for
review.
IN
WITNESS WHEREOF, Seller and Purchaser have executed this Assignment/Assumption
as of the day and year first above written.
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WEST
COAST BANK
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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-21-
EXHIBIT
A
TO
ASSIGNMENT AND ASSUMPTION OF LEASES
Legal
Description
Bulk Sale
- Rentals and
Occupied
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Note Number
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Property Type
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Collateral Address
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Collateral City
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Collateral State
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County
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48012441
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Home
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34659
Castle Dr.
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Chiloquin
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OR
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Klamath
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48013670
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Home
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201
E Battles Lane
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Grapeview
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WA
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Mason
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48011314
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Home
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2106
Mayfly St.
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Lebanon
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OR
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Linn
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48011843
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Home
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2160
Mayfly St.
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Lebanon
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OR
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Linn
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|||||
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48012463
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Home
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987
Robbins Way
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Lebanon
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OR
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Linn
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48011649
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Home
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2172
Mayfly St.
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Lebanon
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OR
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Linn
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|||||
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48012268
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Home
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960
Koi Alley
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Lebanon
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OR
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Linn
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|||||
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48011433
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Home
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2156
Mayfly St.
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Lebanon
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OR
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Linn
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|||||
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48011350
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Home
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2188
Mayfly Street
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Lebanon
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OR
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Linn
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|||||
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48011339
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Home
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1029
Mountain River Dr.
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Lebanon
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OR
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Linn
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|||||
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48011315
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Home
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2132
Mayfly St.
|
Lebanon
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OR
|
Linn
|
|||||
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48011451
|
Home
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1005
Tasha Way
|
Lebanon
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OR
|
Linn
|
|||||
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48014187
|
Home
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2375
Mountain River Drive
|
Lebanon
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OR
|
Linn
|
|||||
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48012818
|
Home
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1000
Tasha Way
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Lebanon
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OR
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LINN
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|||||
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48010945
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Home
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530,532,534 20th
Street
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Washougal
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WA
|
Clark
|
|||||
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48010949
|
Home
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524,526,528 20th
Street
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Washougal
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WA
|
Clark
|
|||||
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80000806
|
Home
|
1670
41st Ct.
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WASHOUGAL
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WA
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CLARK
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-22-
EXHIBIT
B
TO
ASSIGNMENT AND ASSUMPTION OF LEASES
Description of
Leases
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Tenant
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Date
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Address of Leased
Premises
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||
Bulk Sale
- Rentals and
Occupied
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Note Number
|
Property Type
|
Collateral Address
|
Collateral City
|
Collateral State
|
County
|
|||||
|
48012441
|
Home
|
34659
Castle Dr.
|
Chiloquin
|
OR
|
Klamath
|
|||||
|
48013670
|
Home
|
201
E Battles Lane
|
Grapeview
|
WA
|
Mason
|
|||||
|
48011314
|
Home
|
2106
Mayfly St.
|
Lebanon
|
OR
|
Linn
|
|||||
|
48011843
|
Home
|
2160
Mayfly St.
|
Lebanon
|
OR
|
Linn
|
|||||
|
48012463
|
Home
|
987
Robbins Way
|
Lebanon
|
OR
|
Linn
|
|||||
|
48011649
|
Home
|
2172
Mayfly St.
|
Lebanon
|
OR
|
Linn
|
|||||
|
48012268
|
Home
|
960
Koi Alley
|
Lebanon
|
OR
|
Linn
|
|||||
|
48011433
|
Home
|
2156
Mayfly St.
|
Lebanon
|
OR
|
Linn
|
|||||
|
48011350
|
Home
|
2188
Mayfly Street
|
Lebanon
|
OR
|
Linn
|
|||||
|
48011339
|
Home
|
1029
Mountain River Dr.
|
Lebanon
|
OR
|
Linn
|
|||||
|
48011315
|
Home
|
2132
Mayfly St.
|
Lebanon
|
OR
|
Linn
|
|||||
|
48011451
|
Home
|
1005
Tasha Way
|
Lebanon
|
OR
|
Linn
|
|||||
|
48014187
|
Home
|
2375
Mountain River Drive
|
Lebanon
|
OR
|
Linn
|
|||||
|
48012818
|
Home
|
1000
Tasha Way
|
Lebanon
|
OR
|
LINN
|
|||||
|
48010945
|
Home
|
530,532,534 20th
Street
|
Washougal
|
WA
|
Clark
|
|||||
|
48010949
|
Home
|
524,526,528 20th
Street
|
Washougal
|
WA
|
Clark
|
|||||
|
80000806
|
Home
|
1670
41st Ct.
|
WASHOUGAL
|
WA
|
CLARK
|
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-23-