Exhibit 99.12
CONTRACT TO PURCHASE AND SELL REAL PROPERTY
(Heritage Lincoln-Mercury-Jaguar)
THIS CONTRACT TO PURCHASE AND SELL REAL PROPERTY (the "Purchase
Contract") is made and entered into as of the 10th day of April, 1998, by and
between FAIRWAY FORD, INC., a South Carolina Corporation ("Seller") and SONIC
AUTOMOTIVE, INC., a Delaware ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the owner of certain real estate located at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, in the City of Greenville, Greenville County, South Carolina, more
particularly described and/or shown on Exhibit A attached (the "Land").
WHEREAS, Seller desires to sell to Buyer and Buyer desires to acquire
from Seller the Real Property (defined below) together with the buildings and
improvements (collectively, the "Improvements") thereon and which are presently
utilized in the automobile dealership operations of Fairway Management Company,
d/b/a Heritage Lincoln-Mercury-Jaguar in accordance with the terms and
conditions hereinafter set forth in this Purchase Contract.
NOW, THEREFORE, in consideration of the agreements and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller do hereby
covenant and agree as follows:
1. Definitions. In addition to the terms defined above, each of the
following terms, when used herein with an initial capital letter, shall
have the meaning ascribed to it as follows, unless such meanings are
expressly modified, limited or expanded elsewhere in this Purchase
Contract.
1. "Appraised Value" shall mean the value obtained by agreement
of two (2) appraisers, one appointed by Seller, and one
appointed by Buyer. Both appraisers shall have at least five
(5) years experience valuing commercial real estate situated
in Greenville, South Carolina. If the two (2) appraisers
cannot agree on an Appraised Value within thirty (30) days
after they have both been selected, the average of the two
appraisals shall be the Appraised Value if the value
established by the respective appraisals do not vary by more
than ten percent (10%). If the value differs by more than ten
percent (10%), the two appraisers shall appoint a third
appraiser. The third appraiser shall determine the value of
the Real Property within fifteen (15) days of his appointment.
The Appraised Value for purposes of this Purchase Contract
shall be the value as finally agreed upon by any two of the
three appraisers. If two of the three appraisers do not agree
within fifteen (15) days, the appraisers shall be dismissed
and the appraisal process repeated. Seller and Buyer shall
each pay the costs of the appraiser appointed by them, and
one-half (1/2) of the
cost of the third appraiser. If any party fails to appoint an
appraiser within the time required herein, the Purchase Price
determined by the appraiser appointed by the other party shall
be conclusive and binding upon the parties.
2. "Asset Purchase Contract" shall mean that certain Asset
Purchase Agreement dated the date hereof by and between
Fairway Management Company and Buyer.
3. "Closing" shall mean the closing and consummation of the
purchase and sale of the Real Property pursuant to this
Purchase Contract.
d. "Closing Date" shall mean the date of the Closing to be held
on (i) the date of the closing under the Asset Purchase
Contract; or (ii) such other date as mutually agreed upon by
the parties hereto.
e. "Deed" shall mean the duly executed and acknowledged general
warranty deed conveying title to the Real Property from Seller
to Buyer, the form of which is attached hereto as Exhibit C an
original of which conveys the Real Property to be recorded in
Greenville County, South Carolina.
f. "Defect" or "Defects" shall mean a lien, claim, charge,
security interest, encumbrance, easement, restriction or other
such matter affecting title to the Real Property other than
the Permitted Exceptions.
g. "Effective Date" shall mean the later of: (i) the date in the
heading of this Purchase Contract; and (ii) the date which the
last of the parties to this Purchase Contract executes and
delivers this Purchase Contract to the other party.
h. "Environmental Review Period" shall mean a period of fifteen
(15) business days after receipt of both a Phase I
Environmental Evaluation and/or a Phase II Environmental
Evaluation, as applicable.
i. "Environmental Laws" shall mean any applicable current or
future federal, state or local governmental law, regulation or
ruling applicable to environmental conditions on, under or
about the Real Property, including, without limitation,
federal, state or local solid waste disposal rules, the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, The Hazardous Materials
Transportation Act, the Resource Conservation and Recovery
Act, as amended, the Toxic Substances Act, as amended, the
Water Pollution Control Act, as amended, or any other
applicable federal, state or local laws, regulations or
ordinances.
j. "Evaluations" shall mean a Phase I Environmental Evaluation
and a Phase II Environmental Evaluation of the Real Property
prepared at Buyer's expense by environmental consultant(s)
selected by Buyer.
2
k. "Hazardous Materials" means any waste, pollutant, chemical,
hazardous substance, toxic substance, hazardous waste, solid
waste, petroleum or petroleum-derived substance or waste, or
any constituent or decomposition product of any such
pollutant, material, substance or waste, regulated under or as
defined by any Environmental Law(s).
l. "Improvements" shall mean all buildings and improvements
constructed upon the Land together with any fixtures or
improvements related thereto.
m. "Inspection Period" shall mean and refer to the period
commencing on later of (i) the day following the Effective
Date or (ii) the day following delivery of the materials
referred to in Section 7.a. below, and continuing for fifteen
(15) days thereafter.
n. "Land" shall mean that certain parcel or tract of land owned
by Seller located in or near the City of Greenville, South
Carolina, as more particularly described on Exhibit A attached
hereto and incorporated herein by reference, together with all
and singular the rights and appurtenances pertaining thereto,
including any right, title and interest of Seller in and to
adjacent streets, easements or rights-of-way.
o. "Owner's Title Policy" shall mean a standard ALTA form owner's
policy of title insurance for the Real Property issued at
standard rates as compared to comparable Real Property in
Greenville County, South Carolina.
p. "Permitted Exceptions" shall mean all matters described on
Exhibit B attached hereto and incorporated herein by
reference.
q. "Purchase Price" shall mean the Appraised Value of the Real
Property.
r. "Real Property" shall mean the Land (including the Century
Property and the Fairway Property) and the Improvements
thereon.
s. "Survey" shall mean a current boundary, topographical and/or
physical survey of the Real Property prepared by a South
Carolina Registered Land Surveyor.
t. "Title Commitment" shall mean a current title binder or
commitment issued by the Title Company for an owner.
u. "Title Company" shall mean the title insurer of Buyer's
choice.
2. Agreement to Sell and Purchase. Seller hereby agrees to sell and convey
to Buyer, and Buyer hereby agrees to purchase from Seller, the Real
Property pursuant to the terms and conditions of this Purchase
Contract.
3
3. Purchase Price; Delivery of Possession.
a. The Purchase Price shall be paid to Seller in immediately
available funds at Closing, subject to the terms and
conditions of this Purchase Contract.
b. Seller shall deliver sole possession of the Real Property to
Buyer at Closing.
4. Conveyance of Title. At Closing, Seller shall by the Deed convey to
Buyer marketable fee simple title to all of the Real Property, free and
clear of any and all liens, encumbrances, easements, assessments,
restrictions, taxes and other conditions except for the Permitted
Exceptions.
5. Survey. Buyer, at Buyer's sole cost and expense, prior to Closing may,
at its election, obtain the Survey from which a legal description of
the Real Property will be prepared and inserted in the Deed. Buyer, its
employees and agents may, at any reasonable time prior to Closing,
enter upon the Real Property for the purpose of obtaining the Survey.
6. Title and Title Insurance for the Real Property.
a. Prior to the Closing Date, Buyer shall, at its sole cost and
expense, obtain an owner's Title Commitment issued by the
Title Company providing for the issuance at Closing to Buyer
of an Owner's Title Policy for the Real Property. The Title
Commitment shall set forth the state of title of the Real
Property and all exceptions, including but not limited to,
easements, restrictions, road rights-of-way, floodways,
covenants, reservations and other conditions, if any,
affecting the Real Property which would appear in an Owner's
Title Policy if issued.
b. At Closing, the Real Property shall be conveyed to Buyer by
the Deed free and clear of all Defects and subject only to the
Permitted Exceptions.
7. Inspections.
a. On or prior to the Effective Date or within three (3) days
thereafter, Seller shall provide to Buyer true, correct and
complete copies of the following items:
i. Seller's existing owner's and lender's title
insurance policies for the Real Property (if any)
together with legible copies of any exceptions set
forth therein.
ii. The most recently dated existing survey of the Real
Property.
iii. Any and all engineering reports, soil reports and
environmental reports prepared by or for Seller with
respect to the Real Property, if any.
iv. All warranties, if any, related to the Improvements.
4
v. Attorneys' opinions, if any, on title to the Real
Property and legible copies of deeds, mortgages,
easements or restrictions, if any, affecting Property
which Seller may possess.
b. Buyer, its agents and contractors shall be entitled to go upon
the Real Property during the Inspection Period to obtain
financing, to inspect the Real Property to perform
investigations, to determine the status of utilities thereon,
to conduct title examinations, zoning investigations,
feasibility studies and other studies or tests necessary to
determine whether the Real Property is suitable for Buyer's
intended use of the Real Property. If Buyer determines, in
Buyer's reasonable discretion, that the Real Property is not
suitable for Buyer's intended use, Buyer may terminate this
Contract and shall be relieved of all obligations + hereunder
by giving written notice to Seller prior to the end of the
Inspection Period. However, Buyer does not waive its right to
terminate this Contract, as set forth above, based on any
restriction which may adversely affect the Real Property that
has been revealed through documentation and/or other due
diligence material in Buyer's possession prior to the
execution of this Contract.
c. Buyer may, at its sole expense, commission the Evaluations.
The Evaluations shall be conducted in accordance with such
standards and procedures as selected by Buyer and Buyer's
consultant, and may include, without limitation, drilling and
installation of ground water testing ▇▇▇▇▇ at locations
specified by Buyer's consultant, soil samples at locations
designated to detect environmental conditions and/or impacts
from current or past operations, both ground water and soil
analysis and investigation as to the presence of any asbestos
materials on the Real Property. If, based upon the
Evaluations, Buyer determines, in Buyer's reasonable
discretion, that the Real Property is not free of Hazardous
Materials, and that such Hazardous Materials materially
adversely affect Buyer's intended use of the Real Property for
the operation of an automobile dealership, or the value of the
Real Property, then Buyer may terminate this Purchase Contract
by notice in writing given to Seller prior to the expiration
of the Environmental Review Period and the parties shall have
no further rights or obligations under this Purchase Contract.
If the Buyer chooses to terminate this Purchase Contract as a
result of its review of the Evaluations, Buyer shall provide
to Seller copies of all environmental reports relating to the
Real Property which may be obtained by Buyer, and shall repair
any damage to the Real Property resulting from the
Evaluations.
d. In addition to Buyer's rights set forth in Paragraph 7(c)
above, in the event that any underground storage tanks or any
other storage tanks are or have been located upon any portion
of the Real Property, Seller, at its sole expense, shall:
i. Remove any such tanks which remain on the Real
Property;
ii. Remediate any current or former tank sites and any
surrounding portion of the Real Property and any
adjacent property to the reasonable satisfaction of
Buyer and Buyer's consultant.
Notwithstanding the termination of the Inspection Period or
the Environmental Review Period, if Buyer reasonably
determines that Seller has failed to meet its obligations
described in this Paragraph 7(d), then Buyer may either:
iii. Terminate this Purchase Contract; or
5
iv. Remediate any such tank site(s) to the reasonable
satisfaction of Buyer and Buyer's consultant and
deduct the cost of any such remediation from the
Purchase Price. In the event such remediation shall
extend beyond the Closing Date set forth herein,
Buyer shall have the option of extending the Closing
Date to such time as may be necessary to complete any
such remediation.
8. Costs and Prorations. Seller shall pay the cost to cancel any mortgage
or other lien of record. Buyer shall pay any and all documentary stamp
taxes, deed taxes or transfer taxes applicable to this transaction and
any and all costs of the Survey, the title examination, the title
insurance premiums, testing or inspections of the Real Property and
recording costs for the Deed or any other documents to be recorded
relating to the transfer of the Real Property. Each party shall pay its
own attorney's fees. Seller shall pay any "roll-back" taxes or similar
taxes based upon any change in use of the Real Property, whether such
taxes are assessed before or after Closing. Seller's obligation to pay
such taxes, if any, shall survive Closing. All prorations for real
estate taxes, utilities and other such costs shall be prorated between
Buyer and Seller as of the Closing Date on the basis of a 365-day year.
Buyer and Seller hereby agree that if any of the aforesaid prorations
cannot be calculated accurately on the proration date (or as soon as
information sufficient to complete such prorations is available), then
the same shall be calculated within thirty (30) days after the
information necessary to make such prorations becomes available and
either party owing the other party a sum of money based on such
subsequent proration(s) shall promptly pay said sum to the other party.
9. Risk of Loss; Eminent Domain.
a. If, after the Effective Date and prior to the Closing Date,
the Real Property or any portion thereof is damaged or
destroyed, Seller shall immediately notify Buyer in writing
and Buyer shall elect, within ten (10) days from and after
such notice, by written notice to Seller, either:
i. to not close the transaction contemplated hereby, in
which event the Purchase Contract shall be void and
of no further force and effect; provided, however,
Buyer shall not be entitled to elect under this item
i. unless Buyer determines, in its reasonable
judgment, that such damage or destruction cannot be
restored within ninety (90) days; or
ii. to close the transaction contemplated hereby in
accordance with the terms and conditions contained
herein, in which event the Purchase Price shall
remain the same and Seller shall transfer and assign
to Buyer at Closing all rights, title and interest to
any insurance proceeds payable in connection with
such damage or destruction. If Buyer elects to
purchase the Real Property after receipt of such
notice from Seller, all actions taken by Seller with
regard to the repair or replacement of any such
damaged or destroyed portion of the Real Property,
including but not limited to, negotiations,
litigation, settlement, appraisals and appeals, shall
be subject to the approval of Buyer,
6
which approval shall not be unreasonably withheld. In
no event shall Buyer have any responsibility to
repair or rebuild the Improvements.
b. If, after the Effective Date and prior to the Closing Date,
Seller shall receive notice of the commencement or threatened
commencement of eminent domain or other like proceedings
against the Real Property or any portion thereof, Seller shall
immediately notify Buyer in writing, and Buyer shall elect,
within ten (10) days from and after such notice of such
threatened or pending proceedings, by written notice to
Seller, either:
i. to not close the transaction contemplated hereby, in
which event this Purchase Contract shall be void and
of no further force and effect; provided, however,
Buyer shall not be entitled to elect under this item
i. unless more than 5% of the Real Property is taken
and such taking materially interferes with the
operation of an automobile dealership business
substantially as operated before such taking; or
ii. to close the transaction contemplated hereby in
accordance with the terms and conditions contained
herein, but subject to such proceedings, in which
event the Purchase Price shall remain the same and
Seller shall transfer and assign to Buyer at Closing
all rights, title and interests to the proceeds of
such eminent domain proceedings. If Buyer elects to
purchase the Real Property after receipt of such
notice, all actions taken by Seller with regard to
such eminent domain or like proceedings, including
but not limited to, negotiations, litigation,
settlement, appraisals and appeals, shall be subject
to the approval of Buyer, which approval shall not be
unreasonably withheld. In no event shall Buyer have
any responsibility to repair or rebuild the
Improvements.
10. Notice. Each notice required or permitted to be given hereunder shall
be in writing and shall comply with the requirements of this paragraph.
Any notice by Buyer to Seller shall be deemed to be duly given if: (a)
either (i) hand delivered to the person(s) listed below for Seller, or
(ii) delivered or sent by telephone facsimile transmittal to the
facsimile telephone numbers of Seller listed below, in which event
proof of delivery shall be by telephone records, and (b) a duplicate of
such notice shall be sent by registered or certified mail to Seller at
the address set forth below (or at such other address as may hereafter
be designated by Seller). Any notice by Seller to Buyer shall be deemed
to be duly given if: (a) either (i) hand delivered to the person(s)
listed below for Buyer, or (ii) delivered or sent by telephone
facsimile transmittal to the facsimile telephone number of Buyer listed
below, in which event proof of delivery shall be by telephone records,
and (b) a duplicate of such notice shall be sent by registered or
certified mail to Buyer at the address set forth below (or at such
other address as may hereafter be designated by Buyer). Notice shall be
deemed effective at the time of hand delivery or transmission of the
telephone facsimile and upon deposit of the notice in the United States
Mail for registered or certified delivery. The parties hereto reserve
the right to change the addresses or telephone numbers to which notices
are to be sent by giving notice to the other as herein provided.
7
The addresses and facsimile telephone numbers of the parties to which
notices are to be sent shall be those set forth below:
As to Buyer:
Sonic Automotive, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
As to Seller:
Fairway Ford, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, III
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Any party shall have the right from time to time to change the
address to which notices to it shall be sent by giving to the other party or
parties at least five (5) days prior notice of the changed address.
11. Closing. Unless Buyer or Seller have otherwise elected hereunder to
terminate this Purchase Contract, and subject to the satisfaction or
written waiver of each of the conditions precedent to Closing set forth
in Paragraph 12 hereof, the Closing of the sale and purchase of the Real
Property shall be held at a mutually agreeable time on the Closing Date,
at the offices of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, P.C. at 9:00 a.m.
8
12. Conditions Precedent to Closing.
a. Buyer's Conditions. Buyer's obligation to close the purchase of
the Real Property is subject to the satisfactory performance,
occurrence or written waiver by Buyer, in Buyer's sole
discretion, of each of the following conditions:
i. Seller shall have delivered to Buyer all of the
documents, properly executed, as required by Paragraph
13(a) hereof;
ii. No adverse change in the status of the title to the
Real Property as set forth in the Title Commitment
shall have occurred prior to the Closing Date;
iii. No default by Seller shall exist under this Purchase
Contract, this Purchase Contract shall not have
terminated and Seller shall be ready, willing and able
to close under the terms hereof;
iv. The representations of Seller contained in this
Purchase Contract shall be true, complete and correct
in all material respects as of the Closing Date,
without the necessity of any material amendment or
modification, with the same force and effect as if made
as of the Closing Date;
v. The Inspection Period and Evaluation Review Period
shall have expired;
vi. Seller's obligations pursuant to Paragraph 7(d) shall
have been met;
vii. Buyer's confirmation, by a Phase I environmental
inspection performed at Buyer's expense, and by a Phase
II inspection if Buyer deems such inspection necessary,
that the properties are free of environmentally
hazardous or toxic substances that would materially
adversely affect Buyer's use and possession of the
respective properties for the operation of an
automobile dealership, or the value of the Real
Property;
viii. Buyer's confirmation that as of the Closing Date there
will be no contracts, leases or liabilities which will
affect Buyer's ownership of the Real Property or right
to use and possession thereof;
ix. Buyer's confirmation that the Real Property is properly
zoned for use as an automobile dealership;
x. Buyer's confirmation that the Real Property is free
and clear of mortgages, security agreements or other
encumbrances; other than any Permitted Exception shown
on Exhibit B;
xi. Receipt by Buyer of all required waivers or approvals
to Buyer's acquisition of the Real Property and
approval by the Lincoln-Mercury Division of Ford
9
Motor Company and Jaguar Cars for Buyer's operation of
a franchised Lincoln-Mercury and Jaguar dealership on
the Real Property;
xii. All required consents and approvals of the
shareholders and directors of Seller shall have been
obtained and provided to Buyer; and
xiii. All conditions to Buyer's obligations at closing under
the Asset Purchase Contract shall have been fully
satisfied, unless waived in writing by Buyer.
If any of the foregoing conditions have not been satisfied or
waived within the times and in the manner required by this
Purchase Contract, Buyer may terminate this Purchase Contract
and seek any remedies available at law or equity, including
without limitation, specific performance.
b. Seller's Conditions. Seller's obligation to close the sale of
the Real Property is subject to the satisfactory performance,
occurrence or written waiver by Seller, in Seller's sole
discretion, of each of the following conditions:
i. Buyer shall pay the Purchase Price to Seller and shall
have delivered to Seller all of the documents,
properly executed, as required by Paragraph 13(b)
hereof;
ii. No default by Buyer shall exist under this Purchase
Contract, this Purchase Contract shall not have been
terminated, and Buyer shall be ready, willing and able
to close under the terms hereof;
iii. The representations of Buyer contained in this
Purchase Contract shall be true, complete and correct
in all material respects as of the Closing Date,
without the necessity of any material amendment or
modification, with the same force and effect as if
made as of the Closing Date; and
iv. All conditions to Fairway Management Company's
obligations at closing under the Asset Purchase
Contract shall have been fully satisfied unless waived
in writing by Fairway Management Company.
If any of the foregoing conditions have not been satisfied or
waived within the times and in the manner required by this
Purchase Contract, Seller may terminate this Purchase Contract
and seek any remedies which are available at law or equity,
including, without limitation, specific performance; provided,
however, in the event of payment by Buyer of the "Buyer's
Termination Fee" under the Asset Purchase Contract, Seller shall
have no right to any other damages or relief of any kind or
nature, whether at law or in equity (including, without
limitation, specific performance).
10
13. Documents at Closing.
a. Seller's Documents. Seller shall execute and/or deliver the
following to Buyer at Closing:
i. The Deed, duly executed by Seller and acknowledged.
ii. A lien affidavit, duly executed by Seller, acceptable
to the Title Company.
iii. Affidavits and other documents, duly executed by
Seller, to satisfy federal, state and local tax
reporting and withholding requirements.
iv. An affidavit, duly executed by Seller that Seller is
not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code.
v. A certificate, duly executed by Seller and notarized,
that the representations of Seller contained in this
Purchase Contract remain true, complete and correct in
all material respects as of the Closing Date.
vi. A settlement statement setting forth the amounts paid
by or on behalf of and/or credited to each of Buyer
and Seller pursuant to this Purchase Contract.
vii. Such other customary documents and assurances as shall
be reasonably required by Buyer's counsel.
b. Buyer's Documents. Buyer shall pay the Purchase Price to Seller
at Closing and the Buyer shall execute and/or deliver the
following to Seller at Closing:
i. A certificate, duly executed by Buyer and notarized,
that the representations of Buyer contained in this
Purchase Contract remain true, complete and correct in
all material respects as of the Closing Date.
ii. A settlement statement setting forth the amounts paid
by or on behalf of and/or credited to each of Buyer
and Seller pursuant to this Purchase Contract.
iii. Such other customary documents and assurances as shall
be reasonably required by Seller's counsel.
14. Representations and Warranties.
a. Representations and Warranties by Seller. Seller hereby
represents and warrants to Buyer that as of the Effective Date:
i. Seller has no notice of any pending or threatened
condemnation or similar proceeding or assessment
affecting the Real Property, or any part thereof, nor
to the best of its knowledge, is any such proceeding
or assessment
11
contemplated by any governmental authority, nor to the
best of its knowledge, is there any litigation pending
or threatened which affects or could affect the Real
Property.
ii. Except as set forth on Schedule 14(a)(ii) attached
hereto, (a) except in the ordinary course of business
and in compliance with applicable law, Seller has not
at any time generated, used, treated or stored
Hazardous Materials on, or transported Hazardous
Material to or from the Real Property or any property
adjoining or adjacent to the Real Property and, to the
knowledge of Seller, no party other than Seller has
taken such actions on the Real Property, (b) Seller
has not at any time released or disposed of Hazardous
Materials on the Real Property or any property
adjoining or adjacent to the Real Property, and to the
knowledge of the Seller, no party other than Seller
has taken any such actions on the Real Property, (c)
Seller has not transported or arranged for the
transportation of any Hazardous Materials to any site
other than the Real Property, (d) Seller is in
compliance with all Environmental Laws and the
requirements of any permits issued under such
Environmental Laws with respect to the Real Property,
except where failure to comply would not have a
material adverse effect on Seller's Real Property, (e)
there are no past, pending or, to the knowledge of
Seller, threatened environmental claims against Seller
or the Real Property, (f) to the knowledge of Seller,
there are no facts or circumstances, conditions or
occurrences regarding the Real Property that could
reasonably be anticipated (A) to form the basis of an
environmental claim against Seller or (B) to cause the
Real Property to be subject to any restrictions on its
ownership, occupancy, use or transferability under any
Environmental Law, and (g) there are not now, and to
the knowledge of Seller, never have been any
underground storage tanks located on the Real
Property.
iii. To the best of Seller's knowledge, Seller has complied
in all material respects with all applicable laws,
ordinances, regulations and statutes relating to the
Real Property or any part thereof and is not in
violation of any such laws as they relate to the Real
Property.
iv. This Purchase Contract and all documents executed by
Seller which are to be delivered to Buyer at Closing
are or at the time of delivery will be duly executed
and delivered by Seller, and are or at the time of
Closing, will be legal, valid, binding obligations of
Seller, and do not and at Closing will not violate any
provisions of any agreement or any applicable
governmental law or regulation to which the Seller is
a party or to which Seller is subject.
v. There are no restrictions or applicable regulations
which prevent the use of the Real Property for
automobile dealership and servicing purposes.
vi. The restrictive covenants encumbering the Real
Property (if any) have not been violated and there are
no assessments owed pursuant to such restrictions.
12
vii. Other than ad valorem real property taxes, there are
no other taxes or assessments pending or periodically
charged to Seller with respect to the Real Property.
b. Representations and Warranties by Buyer. Buyer hereby represents
and warrants to Seller that as of the Effective Date:
i. Buyer is a duly organized and validly existing
corporation under the laws of the State of Delaware
and is authorized to acquire property in the State of
South Carolina, and Buyer has the power and authority
to enter into this Purchase Contract.
ii. This Purchase Contract and all documents executed by
Buyer which are to be delivered to Seller at Closing
are or at the time of delivery will be duly
authorized, executed and delivered by Buyer, and are
or at the time of Closing, will be legal, valid,
binding obligations of Buyer, and do not and at
Closing will not violate any provisions of any
agreement or any applicable governmental law or
regulation to which Buyer is a party or to which it is
subject.
c. Indemnities.
i. Buyer and Seller hereby agree that they have relied
upon the representations and warranties given by the
respective parties in Paragraph 14(a) and 14(b) of
this Purchase Agreement. Buyer hereby agrees to
indemnify and hold Seller harmless from and against
any and all liabilities, losses, costs, damages,
expenses, including reasonable attorneys' fees and
costs of litigation, arising or resulting from the
untruth of any of Buyer's representations and
warranties set forth in Paragraph 14(b). Seller hereby
indemnifies and holds Buyer harmless from and against
any and all liabilities, losses, costs, damages and
expenses, including reasonable attorneys' fees and
costs of litigation, arising or resulting from the
untruth of any of Seller's representations and
warranties set forth in Paragraph 14(a).
ii. To the extent caused by or resulting from the acts of
Seller, its agents, servants, employees or
contractors, Seller agrees to immediately clean up any
Hazardous Materials found on or within any portion of
the Real Property and to remediate the Real Property,
to comply with any and all Environmental Laws, and to
pay for all clean up and remediation costs at no cost
to Buyer. To the extent caused by or resulting from
the acts of Buyer, its agents, servants, employees, or
contractors, Buyer agrees to immediately clean up any
Hazardous Materials found on or within any portion of
the Real Property and, with respect to such matters as
described herein for which Buyer is responsible, to
remediate the Real Property, to comply with any
Environmental Laws, and to pay for all clean-up and
remediation costs at
13
no cost to Seller. Each parties' respective clean-up
and/or remediation efforts as described herein shall
mean and refer to those actions which are necessary
and required under the Environmental Laws.
iii. To the extent that Seller is responsible for the same
in accordance with Subparagraph (ii) above, Seller
hereby agrees to indemnify, release and hold Buyer,
its successors, assigns, tenants, subtenants,
officers, directors, shareholders and employees,
harmless from and against all Liabilities (defined
below) incurred in connection therewith, suffered by,
incurred by or assessed against such parties, their
agents or other representatives, whether incurred as a
result of legal action taken by any governmental
entity or agency, taken by any private claimant, or
taken by Buyer, before or after Closing as a result of
the presence, disturbance, discharge, release, removal
or cleanup of any Hazardous Materials upon or under,
on or off site, associated with or flowing or
originating from the Real Property. To the extent that
Buyer is responsible for the same in accordance with
Subparagraph (ii) above, Buyer hereby agrees to
indemnify, release and hold Seller, its successors,
assigns, officers, directors, shareholders and
employees, harmless from and against all Liabilities,
suffered by, incurred by or assessed against such
parties, their agents or other representatives,
whether incurred as a result of legal action taken by
any governmental entity or agency, taken by any
private claimant, or taken by Seller, before or after
Closing as a result of the presence, disturbance,
discharge, release, removal or clean-up of any
Hazardous Materials upon or under, on or off site,
associated with or flowing or originating from the
Real Property. The term "Liabilities" as used in this
paragraph is hereby defined as any and all
liabilities, expenses, demands, damages, punitive or
exemplary damages, consequential damages, costs,
cleanup costs, response costs, losses, causes of
action, claims for relief, attorneys and other legal
fees, other professional fees, penalties, fines,
assessments and charges.
15. Broker's Commission. Buyer and Seller represent and warrant to the other
that neither of them have engaged or contracted with any person, firm or
entity to serve or act as a broker, agent or finder for the purpose of
the sale and purchase of the Real Property, and that no broker's or real
estate or other similar commissions or fees are or shall be due in
respect of the transaction contemplated by this Purchase Contract. The
Buyer and Seller each agree to indemnify, defend and save harmless the
other from and against any cost and expense, including reasonable
attorney's fees, incurred by the other as a result of the untruth of any
of the foregoing representations made by it.
16. Entire Agreement. This Purchase Contract constitutes the entire
agreement between Buyer and Seller with respect to the Real Property and
may not be amended except by written instrument executed by Buyer and
Seller. Any other agreements, written or oral, between Buyer and Seller
with respect to the Real Property are hereby superseded in their
entirety by this Purchase Contract.
14
17. Captions. The paragraph captions are inserted for convenience only and
are in no way intended to describe, interpret, define or limit the scope
or content of this Purchase Contract or any provision hereof.
18. Construction. Words of any gender used in this Purchase Contract shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. Any disputes regarding the
interpretation of any portion of this Purchase Contract shall not be
presumptively construed against the drafting party.
19. Remedies Cumulative. Except as specifically set forth above all rights,
powers and privileges conferred hereunder upon the parties hereto shall
be cumulative and in addition to those other rights, powers and remedies
hereunder and those available at law or in equity. All such rights,
powers and remedies may be exercised separately or at once, and no
exercise of any right, power or remedy shall be construed to be an
election of remedies or shall preclude the future exercise of any or all
other rights, powers and remedies granted hereunder or available at law
or in equity, except as expressly provided herein.
20. No Waiver. Neither the failure of either party to exercise any power
given such party hereunder nor to insist upon strict compliance with its
obligations hereunder, nor any custom or practice of the parties at
variance with the terms hereof shall constitute a waiver of either
party's right to demand exact compliance with the terms hereof.
21. Applicable Law. This Purchase Contract shall be construed and
interpreted in accordance with the laws of the State of South Carolina.
22. Successors and Assigns. This Purchase Contract shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns. Buyer shall have the right and privilege to
assign and transfer its interest hereunder to Mar Mar Realty Trust, a
to-be-formed Maryland real estate investment trust, Mar Mar Realty L.P.,
a to-be-formed Maryland limited partnership (each to be formed by
affiliates of Buyer), or to an existing corporation, partnership,
limited liability company or other business entity, or to a corporation,
partnership, limited liability company or business entity formed for the
purpose of consummating this transaction in which Buyer has an ownership
interest or is affiliated by common ownership.
23. Counterparts. This Purchase Contract may be executed in two (2) or more
counterparts.
24. Survival. Seller's and Buyer's representations and warranties and
indemnities set forth in Paragraphs 14 and 15 shall survive Closing.
15
IN WITNESS WHEREOF, the parties have executed the Purchase Contract
pursuant to authority duly given the day and year first above written.
SONIC AUTOMOTIVE, INC.
By: /s/ O. ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Chief Executive Officer
FAIRWAY FORD, INC.
By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, III
Its: President
