PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (the
"Agreement") is made as of July 19, 2004, between Footstar Corporation, a Texas
corporation, having an address at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Seller"), and Thrifty Oil Co., a California Corporation, having an address at
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Buyer").
R E C I T A L S
- - - - - - -
A. Seller owns that certain "Land" (as defined in Article II), on
which Seller has constructed an integrated warehouse, distribution and office
facility, located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as more
particularly described on Exhibit A attached hereto and incorporated herein by
reference.
B. Buyer desires to purchase the Property (as defined in Article II)
from Seller, and Seller desires to sell the Property to Buyer, on the terms and
conditions set forth herein.
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing recitals and mutual
agreements set forth herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE I
EFFECTIVE DATE
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This Agreement shall be effective (the "Effective Date") when a fully
executed copy of this Agreement (or a fully executed copy in counterparts) and
the Deposit are deposited with ▇▇▇▇▇▇▇ Title Insurance Company (the "Title
Company"). Title Company is hereby instructed to immediately notify each party
to this Agreement of the Effective Date. In addition, each signatory of this
Agreement on behalf of Buyer or Seller shall insert the date on which he or she
signs this Agreement. The last date so inserted shall be the "Execution Date."
ARTICLE II
PROPERTY SUBJECT TO AGREEMENT
-----------------------------
Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to
purchase from Seller, all of Seller's right, title and interest in the
following:
(a) Land. That certain land consisting of approximately 39..5
acres described and depicted in Exhibit A attached hereto, and all appurtenant
rights, privileges and easements thereto (collectively, the "Land"), including,
without limitation, any and all permits, entitlements, and easements for
ingress, egress and access across adjoining property or from the adjoining
public streets or roadways and all water rights, if any, appurtenant or
attributable to the Land;
(b) Improvements. That certain industrial building containing
approximately 532,000 square feet (the "Building"), together with all fixtures,
landscaping and other improvements located or to be located on the Land
(collectively, the "Improvements"). The Land and the Improvements are
collectively referred to herein as the "Real Property". The sale shall
specifically exclude all personal property of Seller and all equipment used in
the movement of goods in commerce, including, without limitation, all material
handling equipment, racking, conveyors, lifts and tilt trays.
(c) Warranties. All warranties related to the construction of
the Building to the extent such are assignable (the "Warranties").
The Real Property and Warranties are hereafter referred to as the "Property.."
ARTICLE III
PURCHASE PRICE; PAYMENT OF PURCHASE PRICE;
DEPOSIT; REVIEW PERIOD; DISAPPROVAL
-----------------------------------
3.1 Purchase Price. Subject to the terms, conditions and provisions
contained in this Agreement, Buyer agrees to pay, and Seller agrees to accept,
as consideration for the conveyance of the Property to Buyer, the sum of Twenty
Eight Million Fifty Thousand and 00/100 Dollars ($28,050,000.00) (the "Purchase
Price"). The Purchase Price shall be payable in full as set forth below. The
Purchase Price may be subject to adjustment as provided in Section 10.7 below.
3.2 Payment of Purchase Price. The Purchase Price, together with
Buyer's share of all closing costs and any net prorations charged to Buyer,
shall be placed into Escrow (as defined in Section 8.1) by wire transfer of
immediately available funds or in other good funds acceptable to the Title
Company at least one (1) business day prior to the Closing Date and in time
sufficient to permit Title Company to close the Escrow on the Closing Date.
3.3 Deposit. On the Effective Date, Buyer has deposited the sum of
Four Hundred Thousand and no/100 Dollars ($400,000.00) (the "Initial Deposit")
in good funds with Seller. In addition, on the Effective Date, Buyer shall
deposit the additional sum of Four Million Six Hundred Thousand and 00/100
Dollars ($4,600,000.00) (the "Second Deposit") in good funds with Escrow Holder.
(The Initial Deposit and the Second Deposit are sometimes hereafter collectively
referred to as the "Deposit.") The Initial Deposit, together with any interest
earned thereon, shall be fully refundable until the expiration of the Review
Period. If on or before the expiration of the Review Period, Buyer shall not
have timely delivered a Disapproval Notice, the Deposit shall become
non-refundable to Buyer, and shall be retained by the Escrow Holder and
disbursed as provided herein. If on or before the expiration of the Review
Period, Buyer shall have delivered a Disapproval Notice, the Initial Deposit,
together with all interest earned thereon less escrow cancellation charges,
shall be returned to Buyer. If the sale contemplated by this Agreement is
consummated in accordance with the terms hereof, the Deposit shall be applied to
the Purchase Price to be paid to Seller on the Closing Date. The Title Company
shall, promptly upon receipt of the Deposit, place the Deposit in an interest
bearing account with all interest accruing to the benefit of the Buyer. If the
sale of the Property to Buyer fails to close by reason of a default by Buyer the
Deposit shall be paid to Seller as liquidated damages, as Seller's sole remedy
for such default. If the sale of the Property to Buyer fails to close for any
reason other than a default by Buyer the Deposit shall be refunded to Buyer.
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3.4 Document Delivery; Review Period.
(a) Seller shall order and deliver or cause to be delivered to
Buyer, either prior to the Effective Date or not later than five (5) business
days following the Effective Date, a preliminary title report ("Title Report")
from the Title Company on the Real Property showing status of title to the Real
Property, together with copies of all documents referenced in the Title Report.
(b) Seller shall deliver to Buyer, to the extent Seller has
such items in its possession, the following items (collectively, the "Property
Documents"), either prior to the Effective Date or not later than three (3)
business days following the Effective Date:
(i) A copy of all "Phase One" environmental reports
relating to the Real Property and in Seller's possession;
(ii) Copies of all as built plans relating to the Building
and the Improvements and in Seller's possession;
(iii) A copy of Seller's existing ALTA survey of the Real
Property;
(iv) A copy of the Certificate of Occupancy for the
Building; and
Other information in Seller's possession which Buyer shall
request;
(c) Buyer shall have until 5:00 p.m. (Pacific Time) on July 8, 2004
(the "Review Period") to conduct Buyer's due diligence, at Buyer's sole cost and
expense, and to satisfy itself as to, but not limited to, the following:
(i) Buyer may arrange for the preparation of an ALTA survey of
the Real Property;
(ii) Buyer shall have the right to conduct a physical
inspection of the Real Property (subject to the requirements of Section 3.4(d)
below);
(iii) Buyer shall have the right to review and approve all
underlying documents, such as covenants, conditions and restrictions, and
special tax assessment information, if any;
(iv) Buyer may obtain the commitment of the Title Company to
issue endorsements to the Owner's Title Policy (as such term is defined below);
(v) Buyer may review the economic feasibility of an investment
in the Property; and
(vii) Buyer may arrange for the certification of any
environmental reports delivered to Buyer pursuant to this section to Buyer and
its lender, at Buyer's sole cost and expense.
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(d) During the Review Period, at reasonable times and upon not less
than one (1) business day's prior notice to Seller, Buyer shall have the right
to enter upon the Real Property with Buyer's representatives, employees, lenders
or agents for purposes of inspecting the Real Property and completing testing
and examinations it deems necessary to determine that the Property is acceptable
(collectively, the "Inspections"); provided, however, that prior to entering
onto the Real Property to conduct any inspections, Buyer shall provide Seller
with evidence of liability insurance in an amount not less than One Million
Dollars ($1,000,000.00), which shall be in form and substance reasonably
satisfactory to Seller and shall name Seller as an additional insured. Buyer
agrees to cause each Inspection report or study of the Real Property which is
obtained from a third party to be delivered to Seller, at Buyer's expense, if
Buyer does not proceed to Closing for any reason other than Seller's default,
and Buyer will cause each such Inspection report or study to be certified (if
customarily certified) to Seller in addition to Buyer and Buyer's lender, if
any. Buyer shall have no obligation to deliver any Inspection report that
constitutes privileged communications with its attorneys or attorney work
product. Any Inspection reports received by Seller are being provided to Seller
for informational purposes only, and only as an accommodation to Seller, and
Buyer does not make any representation, warranty or promise of any kind, express
or implied, concerning the accuracy or completeness of all or any part of the
Inspection reports and any inaccuracy, incompleteness or deficiency in any part
of any Inspection Report shall be solely the risk and responsibility of Seller,
shall not be chargeable in any respect to Buyer and may form the basis of any
claims by Seller against any person or entity that prepared, authored, compiled
or created any of the Inspection Reports only to the extent permitted under the
express terms of the certification to Seller of that Inspection Report; provided
that if no certification to Seller has been made, such claims are expressly
waived and relinquished by Seller. Notwithstanding the foregoing, no invasive
testing of the Real Property such as demolition, drilling or excavation shall be
conducted by Buyer or its agents unless and until Buyer shall have obtained
Seller's prior written consent thereto, which consent Seller may give or
withhold in Seller's sole and absolute discretion. In requesting such consent,
Buyer shall provide Seller with a reasonably detailed description of the work to
be done in connection with such invasive tests (including without limitation the
precise location of any excavation, demolition or borings to be performed),
together with reasonable monetary assurances in the form of a bond, insurance
policy, or otherwise, that any damage caused to the Real Property by such
invasive testing will be immediately remediated at no cost to Seller. Seller
and/or Seller's agent(s) shall have the right to be present at and to observe
any invasive testing of the Real Property. The provision of such assurances
shall not, however, in any way affect Buyer's obligations under Section 3.6.
(e) Within ten (10) days following the Effective Date, Seller shall
make available to Buyer through Escrow, all of the required disclosure
requirements, if any, of California Government Code ss. 8589.3 (flood zone
designation), ss. 8589.4 (inundation area), and ss. 51183.5 (high fire severity
area), and of California Public Resources Code ss. 2621.9 (earthquake fault
zone), ss. 2694 (seismic hazard zone), and ss. 4136 (wildland fire area),
regarding the presence of certain natural hazards (the "Required Disclosures").
The Required Disclosures will be provided in the standard form of a report
produced by "Property I.D." Seller and Buyer acknowledge and agree that any of
the Required Disclosures are based on maps or other information that is provided
by governmental agencies, and that Seller shall have no liability for the
accuracy and completeness of any such information.
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3.5 Approval/Disapproval. On or before the last day of the Review
Period, Buyer may, in Buyer's sole and absolute discretion, and for any reason
or no reason, approve by written notice to Seller and Title Company (an
"Approval Notice") or disapprove by written notice to Seller and Title Company
(a "Disapproval Notice") the Property, including the Title Report, Property
Documents and the due diligence items referenced within Section 3.4(c). Unless
Buyer delivers a Disapproval Notice on or before the expiration of the Review
Period, Buyer shall be conclusively deemed to have waived any right to terminate
this Agreement pursuant to this Section 3.5. If, however, Buyer timely delivers
a Disapproval Notice, Escrow shall be canceled, this Agreement shall be
terminated and the Deposit shall be returned to Buyer, including interest (less
any title and escrow cancellation charges), without further action of either
Buyer or Seller. If Buyer disapproves any title matter shown in the Preliminary
Report within the Review Period, Seller shall notify Buyer, within five (5)
business days of Buyer's notice of disapproval, whether or not Seller will cure
such disapproved title matter prior to Closing. Seller shall in any event cause
all Required Removal Items (as defined in Section 5.1) to be cured prior to
Closing. Failure of Seller to notify Buyer that Seller will cure such
disapproved title matter (other than a Required Removal Item), shall be deemed
Seller's election not to cure such title matter prior to Closing. If Seller
notifies Buyer that Seller will not cure such disapproved title matter (or is
deemed to have elected not to cure such matter), Buyer shall, within three (3)
business days of such notification (or in the event Seller has failed to notify
Buyer that it will cure the disapproved title matter, within eight (8) business
days of Buyer's notice of disapproval), either waive its objection to such title
matter or elect to terminate this Agreement. If Buyer elects to terminate this
Agreement as provided in the preceding sentence, then Escrow shall be canceled
and the Deposit shall be returned to Buyer including interest (less any title
and escrow cancellation charges), without further action of either Buyer or
Seller. Failure of Buyer to notify Seller that Buyer elects to terminate this
Agreement shall be deemed Buyer's election to terminate this Agreement.
3.6 Restoration of Real Property. If Buyer elects to cancel this
Agreement as set forth in Section 3.5, Buyer shall, at its sole expense, restore
the Real Property to its condition existing prior to any testing and examination
which it conducts on the Real Property, except to the extent that any changes in
the condition of the Real Property were not caused by such testing or
examination. Buyer also agrees to keep all information and reports obtained from
Seller or relating to the Property or the proposed transaction confidential and
Buyer will not disclose such information or reports to any person or entity,
except for Buyer's experts or consultants relating to the proposed purchase and
sale, except to Buyer's lender (if any) and such lender's experts or
consultants, and except to the extent otherwise required by legal process or by
applicable law, without obtaining the prior written consent of Seller; provided
that such covenant of confidentiality shall be of no further force or effect
upon the first to occur of (a) the date upon which Seller no longer owns the
Property, and (b) December 31, 2005. Buyer agrees to indemnify Seller and hold
Seller harmless from any loss, cost, liability, expense, damage, or injury to
person or property arising out of Buyer's exercise of the rights granted in this
Article; provided, that Buyer shall have no obligation to indemnify Seller for
conditions existing prior to the date hereof or for any matters if and to the
extent caused by Seller. This indemnification obligation shall survive the
termination of this Agreement or the Closing.
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ARTICLE IV
"AS IS, WHERE IS" SALE
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4.1 "AS IS, WHERE IS" Sale. As an essential inducement to Seller to
sell the Property to Buyer on the terms and conditions set forth in this
Agreement, and except as otherwise provided in this Agreement, Buyer
acknowledges, understands and agrees as follows:
(a) (i) Buyer is a sophisticated purchaser and is familiar with
the Property; (ii) neither Seller nor any of its agents, brokers or employees
has made and does not make any representations or warranties of any kind
whatsoever, whether oral or written, express or implied, with respect to the
Property except as expressly set forth in this Agreement; and (iii) the Property
is being sold to Buyer in its present "AS IS, WHERE IS" condition, with all
faults.
(b) In particular, but without limiting the generality of
subsection (a) above, except as expressly set forth in this Agreement, neither
Seller nor any of its agents, brokers, attorneys or employees has made and does
not make any representations or warranties, whether oral or written, express or
implied, with respect to the economic value of the Property, adequacy of water,
sewage or other utilities serving the Property, the fitness or suitability of
the Property for Buyer's intended uses or the present use of the Property, or
the physical condition, occupation or management of the Property, the
development potential of the Property, its compliance with applicable statutes,
laws, codes, ordinances, regulations or requirements relating to leasing,
zoning, subdivision, planning, building, fire, safety, health or environmental
matters (including, without limitation, the presence or absence of asbestos,
petroleum products or toxic or hazardous substances), compliance with covenants,
conditions and restrictions (whether or not of record), other local, municipal,
regional, state or federal requirements, or other statutes, laws, codes,
ordinances, regulations or requirements.
(c) Further, but again without limiting the generality of
subsection (a) above, except as expressly set forth in this Agreement, Seller
expressly disclaims and negates as to the Property: (i) any implied or express
warranty of merchantability; (ii) any implied or express warranty of fitness for
a particular purpose; and (iii) any implied warranty with respect to the
condition of the Property, its compliance with any zoning, Americans with
Disabilities Act, or other rules, regulations, laws or statutes applicable to
the Property, the past or projected financial condition of the Property
(including, without limitation, the income or expenses thereof) or the uses
permitted on, the development requirements for, or any other matter or thing
relating to all or any portion of the Property.
(d) Finally, but again without limiting the generality of
subsection (a) above: (i) all documents, reports, studies and other information
or materials delivered or disclosed to Buyer by Seller or any party on behalf of
Seller, including the Property Documents (the "Information"), if any, are being
provided to Buyer for informational purposes only and only as an accommodation
to Buyer; (ii) Seller has not made, is not making, and will not make any
representation, warranty or promise of any kind, express or implied, concerning
the accuracy or completeness of all or any part of the Information; and (iii)
any inaccuracy, incompleteness or deficiency in any part of the Information
shall be solely the risk and responsibility of Buyer, shall not be chargeable in
any respect to Seller, and shall not form the basis of any claims by Buyer
against any person or entity that prepared, authored, compiled or created any
part of the Information, such claims being expressly waived and relinquished by
Buyer.
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(e) To the extent required to be operative, the disclaimers or
warranties contained herein are "conspicuous" disclaimers for purposes of any
applicable law, rule, regulation or order.
ARTICLE V
TITLE TO REAL PROPERTY
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5.1 Title.
At the Closing, Seller shall convey to Buyer fee title to the Real
Property, subject to (i) all matters of record approved by Buyer pursuant to
Section 3.5 hereof, (ii) a lien to secure payment of real estate taxes and
assessments, not yet due and payable, and (iii) matters created by or with the
consent of Buyer, except for monetary liens and encumbrances such as mortgages,
deeds of trust and/or delinquent property taxes and assessments, by execution
and delivery of a Grant Deed (the "Grant Deed") in the form attached hereto as
Exhibit B. Except for any defect in record title arising from Seller's
intentional misrepresentation or omission, Buyer's sole recourse for a defect in
record title shall be to enforce against the Title Company Buyer's rights under
the Owner's Title Policy (as defined below). Title Company shall issue an ALTA
extended coverage owner's title insurance policy (the "Owner's Title Policy") in
the amount of the Purchase Price, which shall insure fee title to the Real
Property in Buyer (or Buyer's permitted successor or assign), subject to (i) all
matters of record approved by Buyer pursuant to Section 3.5 hereof, (ii) a lien
to secure payment of real estate taxes and assessments, not yet due and payable,
and (iii) matters created by or with the consent of Buyer (collectively, the
"Permitted Exceptions"). The Permitted Exceptions shall not include (unless
created by or with the consent of Buyer): (a) monetary liens and encumbrances
such as mortgages, deeds of trust, mechanic's liens, (b) any judgment lien, (c)
any exception relating to Seller's authority to enter into and/or perform this
Agreement and/or the authority of the person or persons executing this Agreement
or the instrument by which Seller conveys title to Buyer, and/or (d) delinquent
property taxes and assessments (collectively, "Required Removal Items"). Seller
shall cause all of the Required Removal Items to be eliminated at Seller's
expense on or before the Closing. New exceptions to title to the Real Property
which first arise after the date hereof, other than those caused by Buyer or by
persons acting at Buyer's direction, shall be Permitted Exceptions only if
approved by Buyer after notification thereof.
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING
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6.1 The following conditions are conditions precedent to Buyer's
obligation to purchase the Property:
(a) Disapproval Notice. Buyer shall not have delivered a
Disapproval Notice on or prior to the expiration of the Review Period.
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(b) Execution of Documents. Seller shall have executed all
documents required to be signed by Seller hereunder and shall have deposited
with Title Company all of the documents to be deposited by Seller pursuant to
Section 8.3.
(c) No Termination. This Agreement shall not have been
terminated pursuant to Article XI hereof.
(d) Compliance by Seller. Seller shall have complied in all
material respects with each and every material covenant or condition of this
Agreement to be kept or complied with by Seller prior to the Closing.
(e) Representations and Warranties. All of Seller's
representations and warranties set forth in Section 9.1 hereof shall be true and
correct in all material respects as of the Closing Date.
(f) Owner's Title Policy. The Title Company shall issue the
Owner's Title Policy to Buyer.
6.2 Effect of Failure of Buyer's Conditions. In the event that there
shall be a failure of any of the conditions contained in Section 6.1, Buyer may,
in addition to any other remedies available to Buyer, terminate this Agreement,
and upon such termination, the Deposit, and all accrued interest thereon, shall
be returned to Buyer.
ARTICLE VII
SELLER'S CONDITIONS PRECEDENT TO CLOSING
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7.1 The following conditions are conditions precedent to Seller's
obligation to sell the Property:
(a) Disapproval Notice. Buyer shall not have delivered a
Disapproval Notice on or prior to the expiration of the Review Period, except
for a Disapproval Notice with respect to a title matter that Seller subsequently
notifies Buyer that Seller will cure or with respect to a Required Removal Item.
(b) Execution of Documents. Buyer shall have executed all
documents required to be signed by Buyer hereunder and shall have deposited with
Title Company all of the documents to be deposited by Buyer pursuant to Section
8.4.
(c) Representations and Warranties. All of Buyer's
representations and warranties set forth in Section 9.1 hereof shall be true and
correct in all material respects as of the Closing Date.
(d) Compliance By Buyer. Buyer shall have complied in all
material respects with each and every material covenant and condition of this
Agreement to be kept or complied with by Buyer prior to the Closing.
(e) Office Lease. FMI International, LLC ("FMI") shall have
entered into a sublease (the "Office Lease") with Seller or Seller's designee
for the office portion of the Property (as further described in the Office
Lease).
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(f) Net Lease. Buyer shall have entered into a lease (the "Net
Lease") for the entire Property with FMI in form and substance satisfactory to
Buyer and FMI.
(g) Operating Agreement. FMI shall have entered into an
operating agreement (the "Operating Agreement") with Seller on terms reasonably
acceptable to Seller.
ARTICLE VIII
ESCROW AND CLOSING
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8.1 Escrow Instructions. Escrow herein (the "Escrow") shall be
established at the Title Company (sometimes referred to herein as "Escrow
Holder"). Upon execution of this Agreement, the parties shall deposit an
executed copy of this Agreement with Title Company. This Agreement shall serve
as the instructions to Title Company to consummate the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such additional and
supplementary escrow instructions as may be appropriate to enable Title Company
to comply with the terms of this Agreement. If there is any conflict between the
provisions of this Agreement and any supplementary escrow instructions, however,
the terms of this Agreement shall control.
8.2 Closing. The closing hereunder (the "Closing") shall be the date
the Grant Deed is recorded (the "Closing Date"). The Closing shall occur on or
before the date that is five (5) days after receipt of all necessary approvals
from the bankruptcy court, in form and substance reasonably acceptable to Buyer
and Seller, but not later than July 29, 2004 (the "Outside Closing Date"). If
the Closing has not occurred by the Outside Closing Date, then either party
which is not in material default under this Agreement, including without
limitation any failure to deposit with Title Company the items to be deposited
by such party shall have the right to cancel this Agreement by written notice to
the other party and Title Company, and, subject to the limitations set forth in
this Agreement including Section 3.3, to pursue all remedies available at law or
in equity for the default of its obligations under this Agreement.
8.3 Deliveries By Seller. Seller shall deposit with Title Company, at
least one business day before the Closing Date and in time sufficient to permit
Title Company to record and close the Escrow on the Closing Date, the following:
(a) The Grant Deed in the form of Exhibit B, duly executed and
acknowledged by Seller and in recordable form;
(b) Seller's Non-Foreign Affidavit in the form of Exhibit C,
and California Form 593-W, each duly executed by Seller;
(c) Two originals of an Assignment of Warranties in the form of
Exhibit D, duly executed by Seller;
(d) Any Withholding Certificate required by the State of
California;
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(e) Any releases or other instruments required in order to
convey title to the Real Property pursuant to Section 5.1 above;
(f) Any other documents or instruments called for hereunder to
be executed or delivered by Seller that have not previously been delivered by
Seller to Title Company; and
(g) The Office Lease;
(h) The Operating Agreement
8.4 Deliveries By Buyer. Buyer shall deliver to Title Company, at
least one business day before the Closing Date and in time sufficient to permit
Title Company to record and close the Escrow on the Closing Date, the following:
(a) Cash or other good funds sufficient to pay the Purchase
Price (less the amount of the Deposit previously paid by Buyer), the closing
costs and any other amounts payable by Buyer in order to permit Title Company to
close the Escrow;
(b) Any other documents or instruments called for hereunder to
be executed or delivered by Buyer that have not previously been delivered by
Buyer to Title Company;
(c) Two originals of an Assignment of Warranties in the form of
Exhibit D, duly executed by Buyer; and
(d) The Net Lease.
8.5 Other Instruments. Seller and Buyer shall each deposit any other
documents or instruments that may be reasonably required by the other party
and/or Title Company, or that are otherwise required to close the escrow and
consummate the purchase and sale of the Property in accordance with the terms
hereof.
8.6 Prorations and Apportionments.
(a) All taxes, including, without limitation, real estate taxes
and personal property taxes, collected rents, charges for utilities, including
water, sewer, and fuel oil, and for utility services, maintenance services,
maintenance and service contracts, all operating costs and expenses, and all
other income, costs, and charges of every kind which in any manner relate to the
operation of the Property (but not including insurance premiums or amounts
payable to any of Buyer's contractors) shall be prorated as of the Closing Date,
based on a three hundred sixty-five (365) day year (the "Prorations"). Seller
shall be charged and credited for such Prorations up to the Closing Date and
Buyer shall be charged and credited (or paid by check for unused deposits or
prepaid rents) for all of the same on and after the Closing Date. Prior to
Closing, Buyer and Seller shall review and approve the Prorations. If the actual
amounts to be prorated are not known as of the Closing Date, the Prorations
shall be made on the basis of the best information then available. When actual
figures are later received, a cash settlement thereof will be made between
Seller and Buyer. The provisions of this Section 8.6 shall survive the Closing.
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(b) Notwithstanding anything to the contrary in the foregoing,
(i) Seller shall retain the right to receive all refunds for overpayments of
real property taxes and assessments to the extent paid by Seller and
attributable to the period of time on or prior to the Closing Date, and Seller
shall have the sole right to prosecute an appeal or claim with respect to such
amounts, and (ii) all obligations discovered following the Closing with respect
to property taxes and assessments allocable to periods prior to the Closing
shall be satisfied in full by Seller promptly following Buyer's request to do
so.
8.7 Costs and Expenses. Seller shall pay all real estate transfer
taxes and the cost of a standard CLTA Owner's Policy of Title Insurance. Buyer
shall pay the incremental cost for ALTA title insurance coverage, if desired,
and any endorsements to the title policy (if requested by Buyer). Seller and
Buyer shall each pay one-half of Escrow Holder's fee (excluding charges assessed
by Escrow Holder for special services, which shall be paid by the party
requesting or using such special services). Buyer shall pay all costs associated
with any financing Buyer obtains with respect to the Property. Other closing
costs shall be apportioned in accordance with the custom and practice in
Riverside County. Each party shall pay its own attorneys' fees.
8.8 Insurance; Utilities. Buyer acknowledges that Seller will cause
its policies of casualty and liability insurance, if any, to be terminated with
respect to the Property as of the Closing Date. Buyer shall be responsible for
obtaining its own insurance and utilities as of the Closing Date and thereafter.
Any deposits for utilities made by Seller shall be refunded to Seller and Buyer
shall arrange for any required replacements therefor.
8.9 Close of Escrow. Provided that (i) Title Company has received the
documents and funds described in Sections 8.3, 8.4 and 8.5 hereof, (ii) Title
Company is then committed to issue the Owner's Title Policy to Buyer pursuant to
Section 5.1 hereof, and (iii) Title Company has not received prior written
notice from either party to the effect that an agreement of either party made
hereunder has not been performed or to the effect that any condition set forth
herein has not been satisfied or waived, Title Company is authorized and
instructed on the Closing Date to:
(a) Cause the Grant Deed to be recorded in the Recorder's
Office of Riverside County, California (provided, that the Grant Deed shall be
recorded without disclosing the amount of documentary transfer tax, which
documentary transfer tax shall be shown on a separate statement filed with the
Recorder's Office);
(b) Deliver, in the manner specified by Seller in separate
instructions to Escrow Holder, the Purchase Price to Seller, less Seller's share
of Prorations, costs of escrow and any releases or other requirements required
to clear and convey title to the Real Property to Buyer as required herein;
(c) Deliver one fully executed original of the Assignment and
Assumption of Contracts and Warranties to each of Seller and Buyer; and
(d) Deliver Seller's Non-Foreign Affidavit to Buyer.
11
8.10 Notification; Closing Statements. If Title Company cannot comply
with the instructions herein (or as may be provided later), Title Company is not
authorized to cause the recording or delivery of any of the foregoing documents.
If Title Company is unable to cause the recording, Title Company shall notify
the parties without delay. Immediately after the Closing, Title Company shall
deliver to Buyer and Seller, respectively, at their addresses listed in Section
13.1 hereof, a true, correct and complete copy of the Seller's and Buyer's
Closing Statements, in forms customarily prepared by Title Company, as well as
all other instruments and documents to be delivered to Buyer and Seller.
8.11 Delivery of Items Outside of Escrow. Upon Seller's receipt of
confirmation that the Closing has occurred, and receipt of all funds due to
Seller hereunder, Seller shall deliver to Buyer outside of escrow, keys to the
Property.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
9.1 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller as follows as of the Effective Date and as of the Closing
Date:
(a) This Agreement and all documents executed by Buyer that are
to be delivered to Seller at the Closing are, or at the time of Closing will be,
duly executed and delivered by Buyer, and the person executing this Agreement
and all such documents on behalf of Buyer is and shall be duly authorized to so
execute and deliver this Agreement and such documents on behalf of Buyer. This
Agreement and all documents executed by Buyer that are to be delivered to Seller
at the Closing are, or at the Closing will be, legal, valid and binding
obligations of Buyer, and do not, and at the time of Closing will not, violate
any provisions of any agreement or judicial order to which Buyer is a party or
to which Buyer is subject.
(b) No representations of any kind (whether oral or written,
express or implied) have been made by the Seller to Buyer except as specifically
provided in Section 9.2 hereof, and except as expressly provided herein Buyer
hereby represents and warrants to Seller that Buyer is purchasing the Property
solely in reliance on Buyer's own evaluation thereof.
9.2 Seller's Representations and Warranties. Seller represents and
warrants to Buyer as follows as of the Effective Date and as of the Closing
Date:
(a) Seller is a corporation duly formed, validly existing and
in good standing under the laws of the State of Texas, and is duly qualified to
do business in the State of California, and has full power and authority to
enter into this Agreement and to consummate the transactions contemplated
herein.
(b) This Agreement and all documents executed by Seller that
are to be delivered to Buyer at the Closing are, or at the time of Closing will
be, duly authorized, executed and delivered by Seller, and the person executing
this Agreement and all such documents on behalf of Seller is and shall be duly
authorized to so execute and deliver this Agreement and such documents on behalf
of Seller. This Agreement and all documents executed by Seller that are to be
delivered to Buyer at the Closing are, or at the Closing will be, legal, valid
and binding obligations of Seller, and do not, and at the time of Closing will
not, violate any provisions of any agreement or judicial order to which Seller
is a party or to which Seller is subject.
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(c) Seller has not received written notice of any pending or
threatened condemnation affecting the Property and to the best of seller's
actual knowledge no such matter exists.
(d) Seller has not received written notice of any litigation
affecting the Property which would have a material adverse effect upon the
Property after the Closing Date and to the best of seller's actual knowledge no
such matter exists.
(e) Seller is not a foreign person as defined in Section 1445
of the IRC.
(f) Seller has commenced a voluntary Chapter 11 petition under
the United States Bankruptcy Code.
(g) There are no leases or other occupancy agreement affecting
any portion of the Property.
(h) Seller has not received any written notice of any
violations of any laws, statutes, ordinance or regulations applicable to the
Property, and to Seller's actual knowledge no such violations exist.
9.3 Termination of Representations and Warranties. All
representations and warranties by the respective parties contained herein are
intended to and shall terminate effective as ninety (90) days after the time of
Closing.
9.4 Conduct Prior to Closing. From the date hereof through and
including the Closing, Seller shall continue to operate and maintain the
Property in the manner in which the Property is currently operated and
maintained. Seller shall maintain in force all existing permits, licenses,
approvals and consents required in connection with the present use of the
Property by any appropriate governmental or private authority. After the date
hereof, Seller shall not, without the prior written approval of Buyer, which
approval shall not be unreasonably withheld:
(a) make any alterations to the Property except as required for
routine maintenance;
(b) sell, transfer, lease, encumber or change the status of
title of all or any portion of the Property; or
(c) enter into any contract affecting the Property or any part
thereof which would be binding upon Buyer after the Closing.
If Seller shall request Buyer's approval to any of the foregoing matters, Buyer
shall have three (3) business days from its receipt of such request to give
Seller notice of its approval or disapproval of such matter. If Buyer does not
give such notice and such failure continues for two (2) business days after a
second written request from Seller, then such matter shall be deemed approved by
Buyer.
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ARTICLE X
INTENTIONALLY DELETED
---------------------
ARTICLE XI
LOSS BY FIRE OR OTHER CASUALTY: CONDEMNATION
--------------------------------------------
11.1 Damage or Destruction.
(a) If, before the Closing, a portion of the Improvements is
destroyed or damaged, to an extent reasonably deemed material by either Seller
or Buyer, and either such casualty is not insured by Seller or the damage cannot
be repaired within one hundred eighty (180) days, this Agreement shall be
automatically terminated. Thereafter, this Agreement shall be null and void and
of no further force or effect and, except as provided in Sections 3.6, 13.2(b)
and 13.10 hereof, neither Buyer nor Seller shall have any further rights,
duties, liabilities or obligations to the other by reason thereof, other than
those rights and obligations that, by their terms, survive the termination of
this Agreement. In the event of such termination, the cancellation costs of the
Title Company and Escrow Holder shall be borne equally by Buyer and Seller, each
party shall bear its own costs incurred hereunder, and the Deposit, less Buyer's
share of Title Company and Escrow Holder cancellation costs, shall be returned
to Buyer.
(b) If, before the Closing, the Improvements are damaged but
such damage is covered by Seller's insurance and can be repaired within one
hundred eighty (180) days, then this Agreement shall not terminate, Buyer shall
be obligated to purchase the Property as contemplated herein, Seller shall
assign to Buyer all rights, title and interest in the proceeds under Seller's
policy of casualty insurance, and the Purchase Price shall be reduced by the
amount of any insurance deductible and any cost and expense of restoration not
covered by such insurance.
11.2 Condemnation.
(a) If, before the Closing, all of the Property shall be taken
by condemnation or eminent domain (or deed given under threat of eminent
domain), this Agreement shall be automatically terminated. Thereafter, this
Agreement shall be null and void and of no further force or effect and, except
as provided in Sections 3.6, 13.2(b) and 13.10 hereof, neither Buyer nor Seller
shall have any further rights, duties, liabilities or obligations to the other
by reason thereof, other than those rights and obligations that, by their terms,
survive the termination of this Agreement. In the event of such termination, the
cancellation costs of the Title Company and Escrow Holder shall be borne equally
by Buyer and Seller, each party shall bear its own costs incurred hereunder, and
the Deposit, less Buyer's share of Title Company and Escrow Holder cancellation
costs, shall be returned to Buyer.
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(b) If, before the Closing, a portion of the Property shall be
taken by condemnation or eminent domain (or deed given under threat of eminent
domain) or a governmental or quasi governmental entity shall threaten such a
taking, and such taking, in Buyer's sole opinion, would materially impair
Buyer's ability to use the Property for Buyer's intended purposes, then Buyer,
at Buyer's option, may terminate this Agreement by providing written notice of
such termination to Seller within twenty (20) days of Buyer's receipt of written
notice of the taking or threat of taking (Buyer's failure to give such notice
within such period shall be deemed an election to terminate. If Buyer does not
so terminate this Agreement, paragraph (c), below, shall apply. If Buyer elects
to terminate this Agreement under this paragraph (b), this Agreement shall be
null and void and of no further force or effect and, except as provided in
Sections 3.6, 13.2(b) and 13.10 hereof, neither Buyer nor Seller shall have any
further rights, duties, liabilities or obligations to the other by reason
thereof. In the event of such termination, the cancellation costs of the Title
Company and Escrow Holder shall be borne equally by Buyer and Seller, each party
shall bear its own costs incurred hereunder, and the Deposit, less Buyer's share
of Title Company and Escrow Holder cancellation costs, shall be returned to
Buyer.
(c) If this Agreement is not terminated in accordance with the
foregoing, Buyer shall accept title to the Property subject to such taking. In
such event, at the Closing the Seller's interest, if any, in proceeds from the
taking of the Property condemned shall be assigned by Seller to Buyer and any
monies previously received by Seller in connection with such taking shall be
paid over to Buyer.
ARTICLE XII
ENVIRONMENTAL RELEASE
---------------------
12.1 Definitions. For purposes of this Article XII, the following
terms have the meanings indicated.
"Environmental Damages" means all claims, judgments, damages, losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs, and expenses of investigation and defense of any claim, whether or not
such claim is ultimately defeated, and of any good faith settlement of judgment,
of whatever kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, including without limitation reasonable attorneys'
fees and disbursements and consultants' fees, any of which are incurred at any
time as a result of the existence prior to the Closing of Hazardous Material
upon, about, beneath the Real Property or migrating or threatening to migrate to
or from the Real Property, or the existence of a violation of Environmental
Requirements pertaining to the Real Property, regardless of whether the
existence of such Hazardous Material or the violation of Environmental
Requirements arose prior to the present ownership or operation of the Real
Property, and including without limitation:
(i) Damages for personal injury, or injury to
property or natural resources occurring upon or off of the
Real Property, foreseeable or unforeseeable, including,
without limitation, lost profits, consequential damages, the
cost of demolition and rebuilding of any improvements on real
property, interest and penalties;
(ii) Fees incurred for the services of attorneys,
consultants, contractors, experts, laboratories and all other
costs incurred in connection with the investigation or
remediation of such Hazardous Materials or violation of
Environmental Requirements including, but not limited to, the
preparation of any feasibility studies or reports or the
performance of any cleanup, remediation, removal, response,
15
abatement, containment, closure, restoration or monitoring
work required by any federal, state or local governmental
agency or political subdivision, or reasonably necessary to
make full economic use of the Real Property or any other
property in a manner consistent with its current use or
otherwise expended in connection with such conditions, and
including without limitation any attorneys' fees, costs and
expenses incurred in enforcing this agreement or collecting
any sums due hereunder;
(iii) Liability to any third person or governmental
agency to indemnify such person or agency for costs expended
in connection with the items referenced in subparagraph (ii)
herein; and
(iv) Diminution in the value of the Real Property,
and damages for the loss of business and restriction on the
use of or adverse impact on the marketing of rentable or
usable space or of any amenity of the Real Property.
"Environmental Requirements" means all applicable present and
future statutes, common law, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorizations, concessions, franchises, and
similar items, of all governmental agencies, departments, commissions, boards,
bureaus, or instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial, administrative, and regulatory
decrees, judgments, and orders relating to the protection of human health or the
environment, including, without limitation:
(i) All requirements, including but not limited to
those pertaining to reporting, licensing, permitting,
investigation, and remediation of emissions, discharges,
releases, or threatened releases of Hazardous Materials,
chemical substances, pollutants, contaminants, or hazardous or
toxic substances, materials or wastes whether solid, liquid,
or gaseous in nature, into the air, surface water,
groundwater, or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport, or handling of chemical substances, pollutants,
contaminants, or hazardous or toxic substances, materials, or
wastes, whether solid, liquid, or gaseous in nature; and
(ii) All requirements pertaining to the protection of
the health and safety of employees or the public.
"Hazardous Material" means any substance:
(i) the presence of which requires investigation or
remediation under any federal, state or local statute,
regulation, ordinance, order, action, policy or common law; or
(ii) which is or becomes defined as a "hazardous
waste," "hazardous substances," pollutant or contaminant under
any federal, state or local statute, regulation, rule or
ordinance or amendments thereto including, without limitation,
the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. section 9601 et seq.) and/or the
Resource Conservation and Recovery Act (42 U.S.C. section 6901
et seq.); or
16
(iii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic,
or otherwise hazardous and is or becomes regulated by any
governmental authority, agency, department, commission, board,
agency or instrumentality of the United States, the State of
California or any political subdivision thereof; or
(iv) the presence of which on the Real Property poses
or threatens to pose a hazard to the health or safety of
persons on or about the Real Property; or
(v) which contains petroleum, petroleum products or
other hydrocarbon substances; or
(vi) which contains polychlorinated bipheynols
(PCB's), asbestos, mold or other multicellular fungi, urea
formaldehyde foam insulation or radon gas.
12.2 Environmental Release. Except only as provided in the
following sentence, Buyer, for itself and its successors and assigns,
unconditionally releases Seller from and against any and all liability to Buyer,
both known and unknown, present and future, for Environmental Damages to Buyer
arising out of any violation of Environmental Requirements or the presence of
Hazardous Material on, under or about the Real Property. The foregoing release
shall not apply to (i) Hazardous Material actually introduced onto the Real
Property by Seller or, (ii) Hazardous Materials introduced onto the Real
Property by those persons or entities employed by or under contract with Seller,
if the existence of such Hazardous Materials at the Real Property was known by
Seller as of the date hereof, (iii) any breach of an express representation or
warranty of Seller in this Agreement, (iv) any third party claims against Buyer
based upon a condition or event at the Property during Seller's ownership.
BUYER, AFTER CONSULTATION WITH LEGAL COUNSEL AND WITH FULL KNOWLEDGE OF THE
CONSEQUENCES OF ITS ACTIONS, WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE
SECTION 1542, WHICH PROVIDES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
Buyer's Initials:
ARTICLE XIII
MISCELLANEOUS
-------------
13.1 Notices. Any communication, notice or demand of any kind
whatsoever that either party may be required or may desire to give to or serve
upon the other shall be in writing, addressed to the parties at the addresses
17
set forth below, and delivered by personal service, by Federal Express or other
national overnight delivery service, by registered or certified mail, postage
prepaid, return receipt requested, or by facsimile:
▇▇▇ ▇▇▇▇▇▇
If to Seller: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇▇ ▇▇▇▇▇
Footstar
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Wordes, Wilshin & ▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
&
Legal Department
Footstar
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
If to Buyer: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Thrifty Oil Co.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
&
▇▇▇▇▇ ▇▇▇▇▇▇▇
Thrifty Oil Co.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18
With copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Title Company: ▇▇▇▇▇▇▇ Title of California
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Order No.: 044504383
Any such notice shall be deemed delivered as follows: (a) if personally
delivered, the date of delivery to the address of the person to receive such
notice; (b) if sent by Federal Express, UPS, or other overnight courier service,
the date of delivery to the address of the person to receive such notice; or (c)
if sent by facsimile transmission, the date transmitted to the person to receive
such notice if sent by 5:00 p.m. and the next business day if sent after 5:00
p.m., provided that there is evidence of such transmission printed by the
sending machine. Any notice sent by facsimile transmission must be confirmed by
personally delivering or mailing a copy of the notice sent by facsimile
transmission. Any party may change its address for notice by written notice
given to the other at least five (5) calendar days before the effective date of
such change in the manner provided in this Section.
13.2 Brokers and Finders.
(a) Seller and Buyer each represent to the other that it has
not dealt with any brokers or finders in connection with the purchase and sale
of the Property. Neither party shall be responsible for any commissions,
payments or claims related to ▇▇▇ & Associates, the broker previously retained
by Alere Property Group LLC who was not the successful purchaser at auction of
the Property.
(b) In the event of any claim for broker's fees, finder's fees,
commissions or other similar compensation in connection herewith each party
shall indemnify and defend the other party against and hold the other party
harmless (using counsel reasonably satisfactory to the other party) from any and
all damages, liabilities, costs, expenses and losses (including, without
limitation, attorneys' fees and costs) based upon a claim that is based upon the
actions or agreement of the indemnifying party that the other party sustains or
incurs by reason of such claim. The provisions of this subsection shall survive
the termination of this Agreement or the Closing.
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13.3 Successors and Assigns. If Buyer delivers an Approval Notice or
fails to give a Disapproval Notice prior to the expiration of the Review Period,
and Buyer has deposited the Second Deposit with Escrow Holder, Buyer shall have
the right to assign its interest under this Agreement to a corporation, general
or limited partnership, or limited liability company controlled by or under
common control with Buyer, without the consent of Seller; provided, however,
that in connection with any such assignment by Buyer, the assignee shall execute
and deliver to Seller a written release pursuant to which the assignee
thereunder will agree to assume and be bound by all of Buyer's obligations under
this Agreement, including without limitation the "AS IS, WHERE IS" provision of
Section 4.1 and the Environmental Release in Article XII, and provided further
that Buyer or such assignee agrees in writing to enter into the Net Lease. The
Buyer, under any such assignment, shall not be released from any obligations
hereunder and shall remain bound by all of the obligations set forth in this
Agreement. Subject to the foregoing, this Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs,
administrators and permitted successors and assigns.
13.4 Amendments. This Agreement may be amended or modified only by a
written instrument executed by both parties.
13.5 Interpretation. Words used in the singular shall include the
plural, and vice-versa, and any gender shall be deemed to include the other. The
captions and headings of the Articles and Sections of this Agreement are for
convenience of reference only, and shall not be deemed to define or limit the
provisions hereof. Further, each party hereby acknowledges that such party and
its counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed and
the usual rule of construction, to the effect that any ambiguities herein should
be resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications or exhibits
hereto or thereto.
13.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
13.7 Merger of Prior Agreements. This Agreement constitutes the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral or written representations,
statements, documents, understandings and agreements with respect thereto.
13.8 Attorneys' Fees and Costs. If either Buyer or Seller brings any
suit or other proceeding with respect to the subject matter or the enforcement
of this Agreement, the prevailing party (as determined by the court, agency or
other authority before which such suit or proceeding is commenced), in addition
to such other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually incurred. The
foregoing includes, without limitation, attorneys' fees, expenses and costs of
investigation incurred in appellate proceedings, costs incurred in establishing
the right to indemnification, or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7, 11 or 13 of the
Bankruptcy ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section 101 et seq., or any successor
statutes.
13.9 Time of Essence. Time is of the essence of this Agreement.
13.10 Consultant Reports. If the transaction contemplated herein
fails to close for any reason other than a Seller default, Buyer shall deliver
to Seller, at no cost to Seller, the results and/or copies of all such
information, surveys, reports, tests, and studies, if any, provided for Buyer by
third party consultants; provided, however, that Buyer hereby disclaims any
representation or warranty (i) that any such materials may be assigned to or
relied upon or enforced by Seller and (ii) as to the accuracy of such materials.
20
13.11 No Waiver. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
13.12 Further Acts. Each party, at the request of the other, shall
execute, acknowledge (if appropriate) and deliver in a timely manner whatever
additional documents, and do such other additional acts, also in a timely
manner, as may be reasonably required in order to accomplish the intent and
purposes of this Agreement.
13.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which, when taken together, shall constitute one and the same instrument,
with the same effect as if all of the parties to this Agreement had executed the
same counterpart.
13.14 No Intent To Benefit Third Parties. Seller and Buyer do not
intend by any provision of this Agreement to confer any right, remedy or benefit
upon any third party, and no third party shall be entitled to enforce, or
otherwise shall acquire any right, remedy or benefit by reason of, any provision
of this Agreement.
13.15 Performance Due On Day Other Than Business Day. If the time
period for the performance of any act called for under this Agreement expires on
a Saturday, Sunday or any other day on which banking institutions in the State
of California are authorized or obligated by law or executive order to close (a
"Holiday"), the act in question may be performed on the next succeeding day that
is not a Saturday, Sunday or Holiday.
13.16 Deliveries of Documents. Promptly after the Closing, Seller
shall provide to Buyer any as-built plans, permits and licenses, and other such
documents relating to the ownership or operation of the Property, if and to the
extent such items exist and are in the possession of Seller or the possession of
Seller's agents and/or consultants.
13.17 Confidentiality. Buyer and Seller shall each keep the terms of
this Agreement strictly confidential, and will not disclose or permit their
respective employees or agents to disclose the terms of this Agreement,
including without limitation, the Purchase Price, except such disclosure as
reasonably may be necessary to Buyer's and Seller's respective attorneys,
accountants, and representatives, and others performing due diligence services,
and except to the extent otherwise required by legal process or by applicable
law.
13.18 Possession. Seller shall deliver possession of the Property to
Buyer on the Closing Date.
[SIGNATURE PAGE FOLLOWS.]
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the dates written below.
Dated:______________________________ Seller: Footstar Corporation
------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Executive Vice President
& Chief Administrative Officer
Dated: July 19, 2004 Buyer: Thrifty Oil Co.
-------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:
ACCEPTED AND AGREED TO:
▇▇▇▇▇▇▇ TITLE INSURANCE COMPANY
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
22
EXHIBIT A
---------
LEGAL DESCRIPTION OF THE REAL PROPERTY
That certain real property located at and commonly known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and more particularly described as follows:
PARCELS 14 THROUGH 19, INCLUSIVE OF PARCEL MAP NO. 26365 IN THE COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 172, PAGES 36
THROUGH 41 INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE RIVERSIDE COUNTY
RECORDER.
EXCEPTING THEREFROM ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES,
TOGETHER WITH THE RIGHT TO EXPLORE FOR, DEVELOP, PRODUCE AND EXTRACT THE SAME,
BUT WITHOUT THE RIGHT OF ENTRY UPON THE SURFACE OF SAID REAL PROPERTY OR ANY
PORTION OF SAID REAL PROPERTY ABOVE A PLANE 500 FEET BELOW THE PRESENT SURFACE
OF SAID REAL PROPERTY, AND IN SUCH A MANNER AS NOT TO DAMAGE THE SURFACE OF SAID
REAL PROPERTY, AS RESERVED BY ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, A MARRIED MAN, BY DEED
RECORDED JANUARY 29, 1968 AS INSTRUMENT NO. 8206, OFFICAL RECORDS.
ALSO EXCEPTING THEREFROM ALL MINERALS, OIL, GAS AND OTHER HYDORCARBON
SUBSTANCES, TOGETHER WITH THE RIGHT TO EXPLORE FOR, DEVELOP, PRODUCE AND EXTRACT
THE SAME, BUT WITHOUT THE RIGHT OF ENTRY UPON THE SURFACE OF SAID REAL PROPERTY
OR ANY PORTION OF SAID REAL PROPERTY ABOVE A PLANE 500 FEET BELOW THE PRESENT
SURFACE OF SAID REAL PROPERTY, AND IN SUCH A MANNER AS NOT TO DAMAGE THE SURFACE
OF SAID REAL PROPERTY, AS RESERVED BY ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AN UNMARRIED MAN, BY DEED
RECORDED JANUARY 29, 1968 AS INSTRUMENT NO. 8207, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM TO THE EXTENT NOT RESERVED BY ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, A
MARRIED MAN, BY DEED RECORDED JANUARY 29, 1968 AS INSTRUMENT NO. 8206 OFFICIAL
RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, OR BY ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AN UNMARRIED
MAN, BY DEED RECORDED JANUARY 29, 1968 AS INSTRUMENT NO. 8207 OFFICIAL RECORDS
OF RIVERSIDE COUNTY, CALIFORNIA, ALL MINERALS AND ALL MINERAL RIGHTS OF EVERY
KIND AND CHARACTER NOW KNOWN TO EXIST OF HEREAFTER DISCOVERED, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OIL AND GAS ANY RIGHTS THERETO
TOGETHER WITH THE SOLE, EXCLUSIVE AND PERPETUAL RIGHT TO EXPLORE FOR, REMOVE AND
DISPOSE OF, SAID MINERALS BY MEANS OR METHODS SUITABLE TO GRANTOR, ITS
SUCCESSORS AND ASSIGNS, BUT WITHOUT ENTERING UPON OR USING THE SURFACE OF THE
LANDS HEREBY CONVEYED, AND IN SUCH MANNER AS NOT TO DAMAGE THE SURFACE OF SAID
LANDS OR TO INTERFERE WITH THE USE THEREOF BY GRANTEE, ITS SUCCESSORS OR
ASSIGNS, PROVIDED, HOWEVER, THAT GRANTOR, ITS SUCCESSORS OR ASSIGNS, WITHOUT THE
PRIOR WRITTEN PERMISSION OF GRANTEE, ITS SUCCESSORS OR ASSIGNS, SHALL NOT
CONDUCT ANY MINING ACTIVITIES OF WHATSOEVER NATURE ABOVE A PLANE OF FIVE HUNDRED
FEET (500') BELOW THE SURFACE OF THE LANDS AS RESERVED BY UPLAND INDUSTRIES
CORPORATION, A NEVADA CORPORATION BY DEED RECORDED MAY 1, 1990 AS INSTRUMENT NO.
90-158886 OFFICIAL RECORDS
SAID PARCELS WERE MERGED BY RIVERSIDE COUNTY PLANNING DEPARTMENT CERTIFICATE OF
PARCEL MERGER NO. 1242, RECORDED APRIL 15, 2001 AS INSTRUMENT NO. 01-158266
OFFICIAL RECORDS.
=== End of Legal Description ===
EXHIBIT B
---------
GRANT DEED
[Grant Deed in Form and Substance Reasonably Satisfactory to Buyer and Seller
to Be Inserted Prior to the Closing]
EXHIBIT C
---------
SELLER'S NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not required
upon the disposition of a U.S. real property interest by , the undersigned
hereby certifies the following on behalf of :
1. ______________________ is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income
Tax Regulations);
2. ________________'s U.S. employer identification number is
_____________ ; and
3. _________________ 's office address is c/o__________________
_____________________ .
__________________ understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it
is true, correct, and complete, and I further declare that I have authority to
sign this document on behalf of ____________________________ .
______________________________
By:
-----------------------------
EXHIBIT D
---------
ASSIGNMENT OF WARRANTIES
For and in consideration of the sum of ten dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, , a ("Assignor"), having its principal address c/o , hereby
transfers and assigns to [____________________], a [________________]
("Assignee"), having its principal address at [______________________], all of
its right, title, and interest in and to the following:
All transferable warranties and guaranties issued in
connection with the Property located at and commonly known as ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and more particularly described in
Exhibit "A" to that certain Purchase and Sale Agreement and Escrow
Instructions made as of July__, 2004, by and between Assignor as Seller
and Assignee as Buyer.
This assignment is made without warranty of any kind, express or
implied, by Assignor and without recourse of any kind against Assignor. In
consideration of the foregoing assignment, Assignee hereby accepts this
assignment. This Assignment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of this
_____ day of ___________, 2004.
ASSIGNOR:
-----------------------------------------
By:
-------------------------------------
ASSIGNEE:
-----------------------------------------
By:
-------------------------------------
