EXHIBIT 10.26
PURCHASE AGREEMENT
DATE: January 26, 2001
SELLER: XXXXX X. XXXXXXX, TRUSTEE FOR AND ON BEHALF OF THE ACRIDGE
FAMILY TRUST
Address: 00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Taxpayer Identification Number: ###-##-####
BUYER: GIANT INDUSTRIES, INC., a Delaware corporation
Address: 00000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxxxx, General Counsel
Taxpayer Identification Number: 00-0000000
ESCROW AGENT: FIRST AMERICAN TITLE INSURANCE COMPANY
Address: 0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
Escrow Officer: Xxxxx Xxxxxxxx
Escrow Number: 000-000-0000000
PROPERTY: The real property legally described on Exhibit A, including
all improvements located on and all rights and privileges
appurtenant to the real property (the "Property").
ARTICLE 1
AGREEMENT OF THE PARTIES
1.1 Agreement. In consideration of the mutual promises and covenants
set forth in this Agreement, Seller agrees to sell and Buyer agrees to buy
the Property on the terms and conditions set forth in this Agreement.
ARTICLE 2
SALES PRICE AND PAYMENT TERMS
2.1 Sales Price. The total sales price (the "Sales Price") which
Buyer agrees to pay for the Property is the lesser of $5,000,000 or the
Appraised Value of the Property determined in accordance with Section 2.2
below.
2.2 Appraised Value. On or before the expiration of the Feasibility
Period (defined in Section 5.1(b) below), Buyer, at its expense, shall cause
the Property to be appraised by a licensed real estate appraiser selected by
Buyer and approved by Seller and pursuant to instructions and using a
methodology agreed to by Buyer and Seller. The amount set forth in such
appraisal shall conclusively be deemed the "Appraised Value" for purposes of
this Agreement.
2.3 Payment of Sales Price. The Sales Price is payable as follows:
(a) Xxxxxxx Money Deposit. Immediately following the execution
of this Agreement by both parties, Buyer shall pay to Seller, by wire
transfer of immediately available funds, direct and outside of Escrow,
$740,000 as an xxxxxxx money deposit (the "Deposit"). If the Escrow
closes, the Deposit shall be credited against the Sales Price. If the
transaction fails to close for any reason, the Deposit shall be repaid
to Buyer within five (5) days following the termination of this
Agreement, less any amounts Seller is entitled to retain pursuant to
Section 11.1 below. Seller's obligation to repay the Deposit and to
pay any amounts pursuant to Section 11.2 below, shall be secured by a
deed of trust on the Property in the form attached hereto as Exhibit B
(the "Deed of Trust")
(b) Loan Payment. At the Closing, $896,775.10, and such
additional amount as shall be mutually agreed to by Buyer and Seller,
("Loan Payment") shall be applied by Buyer to amounts payable to Buyer
by Xxxxx X. Xxxxxxx ("Acridge") under that certain Loan Agreement dated
September 17, 1998, as subsequently amended, between Buyer and Acridge
(the "Loan Agreement"), first to prepay the interest that shall become
due and payable on February 28, 2001 and the remainder to reduce the
principal balance due and owing under the Loan Agreement. Seller hereby
directs Buyer to apply the Loan Payment to the amounts payable by Acridge
as set forth in the preceding sentence.
(c) Cash Payable at Closing. The balance of the Sales Price
shall be paid by wire transfer of immediately available funds to the
account of Escrow Agent, to be deposited in the Escrow on or before the
Closing.
ARTICLE 3
ESCROW
3.1 Establishment of the Escrow. An escrow for this transaction (the
"Escrow") is established with Escrow Agent, and Escrow Agent is engaged to
administer the Escrow.
3.2 Opening Date. Within twenty-four (24) hours of the execution of
this Agreement by both Buyer and Seller, Buyer will deliver an executed copy
of this Agreement to Escrow Agent. The date that the Agreement is delivered
to Escrow Agent is referred to in this Agreement as the "Opening Date".
3.3 Acceptance of Escrow. By accepting this Escrow, Escrow Agent
agrees to the terms of this Agreement as they relate to the duties of Escrow
Agent.
3.4 Escrow Instructions. This Agreement constitutes escrow
instructions to Escrow Agent. If Escrow Agent requires the execution of its
standard form printed escrow instructions, Buyer and Seller agree to execute
those instructions; however, those instructions will be construed as applying
only to Escrow Agent's engagement. If there are conflicts between the terms
of this Agreement and the terms of the printed escrow instructions, the terms
of this Agreement will control.
3.5 Escrow Cancellation Charges. If the Escrow fails to close
because of Seller's default, Seller will pay all customary escrow
cancellation charges. If the Escrow fails to close because of Buyer's
default, Buyer will pay all customary escrow cancellation charges. If the
Escrow fails to close for any other reason, Seller and Buyer will each pay
one-half (1/2) of all customary escrow cancellation charges.
ARTICLE 4
INFORMATION TO BE PROVIDED TO BUYER
4.1 Information and Other Items to Be Provided to Buyer. On or
before February 9, 2001, Seller will provide Buyer with the following, at no
cost to Buyer:
(a) Survey. A survey (the "Survey") of the Property prepared
by a civil engineer satisfactory to Buyer, licensed in Arizona. The
Survey will be an ALTA survey and will show all easements,
encroachments and other matters affecting the Property. The Survey
will be certified to be accurate, complete and correct to Buyer. The
cost of the Survey will be paid by Seller. The Survey will form the
basis for the legal description of the Property. Notwithstanding the
foregoing, Seller may provide an existing survey of the Property (an
"Existing Survey") in satisfaction of the foregoing so long as the
Title Insurer is willing to rely on such Existing Survey, or a current
Update of such Existing Survey, in issuing the title policy described in
Section 6.3 below and provided further that the Existing Survey is
certified to Buyer and Title Insurer.
(b) Preliminary Title Report. A current preliminary title
report (the "Report") on the Property prepared by Escrow Agent. The
Report will show the status of title to the Property as of the date of
the Report and will be accompanied by legible copies of all documents
referred to in the Report.
(c) Studies and Reports. Copies of all engineering plans and
reports, site plans, environmental site assessments, architectural
plans, drawings, test and inspection reports, environmental
assessments, studies, and other materials prepared for Seller or in
Seller's possession relating to the Property.
(d) Other Agreements. Copies of any other agreements or
contracts relating to the Property.
4.2 Material Changes in Information. At the Closing, Seller will
report to Buyer in writing any material changes in and otherwise to update
and bring current as of the Closing any and all information furnished by
Seller to Buyer pursuant to this Agreement.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 Conditions to Buyer's Obligation to Close. Buyer's obligations
to close this transaction are subject to the satisfaction, in Buyer's sole
and absolute discretion (or waiver by Buyer in writing), of the following
conditions on and as of the Closing, unless an earlier date is specified:
(a) Title Review. Buyer is satisfied with the status of title
to the Property as disclosed by the Report and the Survey. In that
regard:
(i) Buyer will have ten (10) days (the "Title Review
Period") following receipt of both the Report and the Survey to
approve or disapprove any Survey matters and the status of title
as shown by the Report and the Survey. If Buyer is dissatisfied
with any matter shown on the Survey or with any exception to
title as shown in the Report, then Buyer may, by giving notice to
Seller and Escrow Agent within the Title Review Period, either:
(1) Cancel this Agreement; or
(2) Provisionally accept title subject to Seller's
removal of any disapproved matters, exceptions or
objections, in which case Seller will use its best efforts
to remove the matters, exceptions or objections or obtain
title insurance endorsements satisfactory to Buyer against
such matters, exceptions and objections before the Closing.
If Seller cannot remove such matters, exceptions and
objections before the Closing, Buyer may terminate this
Agreement and the Deposit will be returned to Buyer, or
Buyer may waive such objections and the transaction will
close as scheduled.
(ii) Title to the Property will be delivered to Buyer at
the Closing free and clear of all monetary liens and encumbrances
(other than the lien for current real property taxes not yet due
and payable). All of such liens and encumbrances are disapproved
for the purposes of this Section, and Buyer need not give any
further notice of disapproval as to those items. Seller agrees
that all such monetary liens and encumbrances will be released
from the Property by Seller at Seller's sole expense on or before
the Closing.
(iii) If, prior to Closing, Escrow Agent issues a
supplemental title report showing additional exceptions to title
(a "Title Supplement"), Buyer shall have a period of time equal
to two (2) business days (a "Supplemental Title Review Period")
from the date of receipt of the Title Supplement and a copy of
each document referred to in the Title Supplement in which to
give notice of dissatisfaction as to any additional exceptions.
If Buyer is dissatisfied with any additional exception shown in
the Title Supplement, then Buyer will have the rights set forth
above in Sections 5.1(a)(i)(1) and 5.1(a)(i)(2) by giving
appropriate notice to Seller during the Supplemental Title Review
Period.
(iv) If Buyer does not object to a Survey matter or an
exception to title as disclosed by a Report within the Title
Review Period or Supplemental Title Review Period, as applicable,
the matter will be deemed to have been approved by Buyer. The
matters shown in the Report and any Title Supplement (other than
standard printed exceptions and exclusions that will be included
in the title policy) that are approved or deemed approved by
Buyer in accordance with this Section 5.1(a), the Survey matters
that are approved or deemed approved by Buyer, and any other
matters approved by Buyer in writing, are referred to in this
Agreement as the "Approved Title Exceptions".
(b) Buyer's Investigations. Buyer is satisfied with Buyer's
investigations and inspections with respect to the Property and this
transaction. Without limiting the foregoing, Buyer will have the right
to determine, in its sole discretion, that the purchase and resale of
the Property will not violate any of the terms and conditions of any
note, loan agreement or other indebtedness of Buyer or require Buyer to
make any payments under any such indebtedness and that this transaction
will not result in any material economic effect or risk to Buyer. In that
regard, for a period ending at 5:00 o'clock p.m. (Phoenix time) on
February 19 2001 (the "Feasibility Period"), Buyer will have the
absolute right to cancel this Agreement for any reason whatsoever, in
Buyer's sole and absolute discretion. However, until Buyer cancels,
Buyer will proceed in good faith with Buyer's preliminary investigatory
steps with respect to this transaction. Unless Buyer gives written
notice of cancellation prior to the expiration of the Feasibility
Period, then Buyer will be deemed to have elected not to cancel the
Agreement under this provision.
(c) Changes. Buyer has approved, on or before the Closing, (i)
the results of an inspection, at the Buyer's expense, of any material
changes occurring after the satisfaction of the inspection condition
described in Section 5.1(b)) and (ii) any supplementary information
provided to Buyer as required by Section 4.2.
(d) Loan Agreement. Buyer and Acridge shall have agreed on a
mutually acceptable (i) extension of the Loan Agreement, and (ii) a
reduction, if any, in the principal balance due and owing under the
Loan Agreement.
(e) Appraisal. Seller has approved the appraiser selected by
Buyer and Buyer and Seller have agreed on the instructions to be given
to and the methodology to be used by such appraiser by February 2,
2001.
(f) Repurchase Option and/or Right of First Refusal. Buyer
and Seller shall have agreed on the terms of a repurchase option and/or
right of first refusal to be granted to Seller giving Seller the right
to repurchase the Property on terms and conditions acceptable to the
parties.
(g) Truthfulness of Representations. Seller's representations
and warranties set forth in this Agreement are true, complete and
correct on and as of the Closing.
(h) Full Compliance. Seller has fully performed all of its
obligations to be performed by Seller on or before Closing.
If any of the foregoing conditions is not fulfilled to the satisfaction of
Buyer, in Buyer's reasonable discretion (or otherwise waived by Buyer in
writing), except as otherwise provided herein, on or before the date by
which such contingency is to have been satisfied, Buyer may, in addition to
any right or remedy otherwise available to Buyer, by written notice to Seller
given at any time prior to Closing, cancel this Agreement. If this Agreement
is canceled as permitted by this Section 5.1, the Deposit will be returned to
Buyer as provided in Section 2.3(a).
5.2 Conditions to Seller's Obligation to Close. Seller's obligation
to close this transaction is subject to the satisfaction, in Seller's sole
and absolute discretion (or waiver by Seller in writing), of the following
conditions on and as of the Closing, unless an earlier date is specified:
(a) Loan Agreement. Buyer and Acridge shall have agreed on a
mutually acceptable (i) extension of the Loan Agreement, and (ii) a
reduction, if any, in the principal balance due and owing under the Loan
Agreement.
(b) Appraisal. Seller has approved the appraiser selected by
Buyer and Buyer and Seller have agreed on the instructions to be given
to and the methodology to be used by such appraiser by February 2,
2001.
(c) Repurchase Option and/or Right of First Refusal. Buyer and
Seller shall have agreed on the terms of a repurchase option and/or
right of first refusal to be granted to Seller giving Seller the right
to repurchase the Property on terms and conditions acceptable to the
parties, each in their own discretion.
(d) Truthfulness of Representations. Buyer's representations
and warranties set forth in this Agreement are true, complete and
correct on and as of the Closing.
(e) Full Compliance. Buyer has fully performed all of its
obligations to be performed by Buyer on or before Closing.
If any of the foregoing conditions is not fulfilled to the satisfaction of
Seller, in Seller's reasonable discretion (or otherwise waived by Seller in
writing), on or before the date by which such contingency is to have been
satisfied, Seller may by written notice to Buyer, cancel this Agreement, in
which event the Deposit shall be returned to Buyer as provided in Article 11
below.
ARTICLE 6
CLOSING DOCUMENTS; TITLE POLICIES
6.1 Seller's Closing Documents. On or before the Closing, Seller
will deposit the following documents into the Escrow for delivery to Buyer at
the Closing, each of which will have been duly executed and, where
appropriate, acknowledged, and will be in form and substance satisfactory to
Buyer and Buyer's legal counsel:
(a) Deed. A special warranty deed, in form and substance
satisfactory to Buyer, subject to no defects, exceptions, easements,
encumbrances, covenants, conditions, restrictions, mining claims or
liens, except the Approved Title Exceptions.
(b) Affidavit of Value. An Affidavit of Value as required by
law.
(c) Warranty Certificate. A Certificate certifying that, as of
the Closing, all of the representations and warranties of Seller set
forth in Article 9 were true when made and are true, correct and
current as of, and as if made at, the Closing, and that all such
representations and warranties will survive the Closing.
(d) FIRPTA Affidavit. An affidavit, signed and acknowledged by
Seller under penalties of perjury, certifying that Seller is not a
nonresident alien, foreign corporation, foreign partnership, foreign
trust, foreign estate, or other foreign person within the meaning of
Section 1445 and 7701 of the Internal Revenue Code of 1986 and the
associated Treasury Regulations.
(e) Certified Trust Agreement.. A certified copy of Seller's
Trust Agreement and such other documents as may be reasonably required
by Buyer or Escrow Agent evidencing the Seller's authority to complete
this transaction and designating the person or persons authorized to
sign documents on behalf of Seller.
(f) Additional Documents. Such other documents as may be
necessary or appropriate to transfer and convey all of the Property to
Buyer and to otherwise consummate this transaction in accordance with
the terms of this Agreement.
6.2 Buyer's Closing Documents. On or before the Closing, Buyer will
deposit into the Escrow the following documents for delivery to Seller at the
Closing, each of which will have been duly executed and, where appropriate,
acknowledged and will be in form and substance satisfactory to Seller and
Seller's legal counsel:
(a) Release of the Deed of Trust. A release of the Deed of
Trust.
(b) Affidavit of Value. An Affidavit of Value as required by
law.
(c) Buyer's Resolution. A certified copy of resolution of the
board of directors of Buyer, or other equivalent document reasonably
satisfactory to Seller if Buyer is not a corporation, which resolution
will be in full force and effect, approving this transaction and
designating the person or persons authorized to sign documents on
behalf of Buyer.
(d) Additional Documents. Such other documents as may be
necessary or appropriate to consummate this transaction in accordance
with the terms of this Agreement.
6.3 Title Policy. At the Closing, Seller will provide Buyer with an
extended owner's policy of title insurance issued by First American Title
Insurance Company (the "Title Insurer") in the full amount of the Sales
Price, effective as of the Closing, insuring Buyer that fee simple title to
the Property is vested in Buyer, subject only to the usual printed exceptions
and exclusions contained in such title insurance policies and the Approved
Title Exceptions. Seller, at Seller's expense, will satisfy all of Escrow
Agent's requirements for issuance of such policy, other than those, if any,
within Buyer's control.
ARTICLE 7
CLOSING THE TRANSACTION
7.1 Deadline for Closing.
(a) Initial Time for Closing. The closing of this transaction
and the Escrow (the "Closing") will occur on or before February 23,
2001, in the offices of Buyer.
(b) Extension for Late Delivery. If Seller fails to cure any
title exception pursuant to Section 5.1(a)(iii) on or before the date set
for Closing, Buyer may extend.
7.2 Closing Costs and Prorations.
(a) Escrow Fees. Seller and Buyer will each pay one-half (1/2)
of the Escrow fee.
(b) Title Insurance Fees. Seller will pay the entire premium
for a standard coverage owner's policy of title insurance. Buyer will
pay the premium differential between an ALTA extended owner's title
insurance policy and a standard coverage owner's policy in the same
amount.
(c) Recording Fees. Recording fees for documents transferring
interests to Buyer, such as a deed, and for removing liens,
encumbrances or other title matters will be paid by Seller.
(d) Improvement Liens. Any improvement liens or other
assessments will be paid in full by Seller on or prior to Closing.
(e) Prorations. Real estate and personal property ad valorem
taxes, homeowner's or property owners' association assessments, and
irrigation district assessments will be prorated in the Escrow as of
the Closing, based upon the most current information then available to
Escrow Agent. If, at the Closing, actual tax or assessment information
is not available, then, following the Closing and within thirty (30)
days of receipt by either Buyer or Seller of the actual tax or
assessment information, Buyer and Seller will re-prorate real estate
taxes and assessments among themselves and make any necessary adjusting
payments.
(f) Miscellaneous Closing Costs. Any other closing costs not
provided for above will be paid by Buyer and Seller as they shall
mutually agree or, in the absence of such agreement, according to the
usual and customary practice in Maricopa County, Arizona.
7.3 Payments and Disbursements to Be Handled through the Escrow. The
various charges, credits and prorations contemplated by this Agreement will
be handled by Escrow Agent through the Escrow by appropriate charges and
credits to Buyer and Seller. All amounts payable pursuant to this Agreement
will be paid to Escrow Agent for disposition through the Escrow. Escrow
Agent is authorized to make all disbursements to the parties and to third
parties contemplated by this Agreement from funds deposited for those
purposes, as necessary or appropriate to close this transaction.
7.4 Final Disbursement to Seller. Upon the Closing, all amounts paid
according to Sections 2.3(a) less any closing costs, commissions and other
amounts payable by or chargeable to Seller, will be disbursed to Seller.
7.5 Buyer's Obligation to Deposit Additional Funds. On or before the
Closing, Buyer will deposit with Escrow Agent cash in an amount sufficient to
pay all closing costs and other amounts payable by or otherwise chargeable to
Buyer.
7.6 IRS Reporting at Closing. Escrow Agent agrees to be the
designated "reporting person" under Section 6045(e) of the U.S. Internal
Revenue Code with respect to the real estate transaction described in this
Agreement and to prepare, file and deliver such information, returns and
statements as the U.S. Treasury Department may require by regulations or
forms in connection therewith, including Form 1099-B.
ARTICLE 8
ADDITIONAL COVENANTS
8.1 Possession. Possession of the Property will be delivered to
Buyer upon the Closing free and clear of all leases and other possessory
interests.
8.2 Risk of Loss. Except as provided in Section 8.3, the risk of
loss or damage to the Property and all liability to third persons until the
Closing will be borne by Seller.
8.3 Right to Enter and Inspect the Property. From time to time prior
to the Closing, Buyer may enter the Property with Buyer's representatives,
contractors, and agents to examine the Property, conduct soil tests,
environmental studies, engineering feasibility studies, and other tests and
studies, and to investigate the Property. Buyer will indemnify and hold
harmless Seller and Seller's Related Parties for, from, and against any
Claims arising out of Buyer's exercise of the rights granted by this Section
(unless resulting from Seller's negligence or willful misconduct) and this
indemnity will survive the Closing or the cancellation of this Agreement.
8.4 Condemnation. If all or any portion of the Property is condemned
(or sold and conveyed in lieu of condemnation) prior to the Closing or if any
condemnation action is commenced, Buyer may cancel this Agreement by giving
written notice of cancellation to Seller. If Buyer elects to cancel, the
Deposit will be returned to Buyer and the Agreement will be canceled. If
Buyer elects to close the Escrow notwithstanding the taking of all or a
portion of the Property or commencement of a condemnation action prior to the
Closing, Buyer will receive all awards or payments made by the condemning
authority to which Seller would otherwise be entitled and will proceed to
close the Escrow and pay the total Sales Price.
8.5 Maintenance of Property. Seller agrees to maintain the Property,
including all improvements and landscaping, in good condition and repair
until the Closing.
8.6 Brokerage. Buyer warrants that Buyer has not dealt with any
broker in connection with this transaction. Seller warrants that Seller has
not dealt with any broker in connection with this transaction.. If any
person asserts a claim to a finder's fee, brokerage commission or other
compensation on account of alleged employment as a finder or broker or
performance of services as a finder or broker in connection with this
transaction, the party under whom the finder or broker is claiming will
indemnify and hold the other party and the other party's Related Parties
harmless for, from, and against any Claims related thereto. This indemnity
will survive the Closing or the cancellation of this Agreement.
8.7 General Indemnity. Each party to this Agreement agrees to
indemnify and hold harmless each other party and that party's Related Parties
for, from and against all Claims attributable, directly or indirectly, to the
breach by such indemnifying party of any obligation under this Agreement or
the inaccuracy of any representation or warranty made by such indemnifying
party in this Agreement or in any instrument delivered pursuant to this
Agreement or in connection with the transactions contemplated by this
Agreement. In addition, Seller will indemnify and hold Buyer and Buyer's
Related Parties harmless for, from and against any Claims relating in any way
to the Property and accruing prior to the Closing, even though now unknown
and unsuspected.
ARTICLE 9
SELLER'S REPRESENTATIONS AND WARRANTIES
9.1 Nature of Seller's Representations. Each of the representations
and warranties of Seller contained in this Article 9 constitutes a material
part of the consideration to Buyer and Buyer is relying on the correctness
and completeness of these representations and warranties in entering into
this transaction. Each of the representations and warranties is true and
accurate as of the date of execution of this Agreement by Seller, will be
true and accurate as of the Closing, and will survive the Closing and
regardless of any investigation or inspection by Buyer.
9.2 Representations and Warranties as to Seller and the Transaction.
Seller represents and warrants to Buyer as follows:
(a) Organizational Status. Seller is a trust duly organized,
validly existing and in good standing under the laws of the State of
Arizona, and has full power and authority to enter into and to perform
its obligations under this Agreement. The persons executing this
Agreement on behalf of Seller have full power and authority to do so
and to perform every act and to execute and deliver every document and
instrument necessary or appropriate to consummate the transactions
contemplated by this Agreement. Without limiting the foregoing, Seller
has the authority to make the distribution referenced in Section 2.3(b)
above.
(b) Entity Action. All action on the part of Seller which is
required for the execution, delivery and performance by Seller of this
Agreement and each of the documents and agreements to be delivered by
Seller at the Closing has been duly and effectively taken.
(c) Enforceable Nature of Agreement. This Agreement and each
of the documents and agreements to be delivered by Seller at the
Closing, constitute legal, valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, or similar
laws affecting the enforcement of creditors' rights generally, and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a court of law or
equity).
(d) Violations; Consents; Defaults. Neither the execution of
this Agreement nor the performance by Seller of its obligations under
this Agreement will result in any breach or violation of the terms of
any law, rule, ordinance, or regulation or of any decree, judgment or
order to which Seller or any officer, director or shareholder of Seller
is a party now in effect from any court or governmental body. There
are no consents, waivers, authorizations or approvals from any third
party necessary to be obtained by Seller in order to carry out the
transactions contemplated by this Agreement. The execution and
delivery of this Agreement and performance by Seller of its obligations
under this Agreement will not conflict with or result in a breach or
default (or constitute an event which, with the giving of notice or the
passage of time, or both, would constitute a default) under Seller's
trust agreement, or other instrument to which Seller is a party or by
which Seller or any of its assets may be bound. The execution and
delivery of this Agreement and performance by Seller of its obligations
under this Agreement will not result in the creation of any new, or the
acceleration of any existing, lien, charge, or encumbrance upon the
Property.
(e) Litigation. Neither Seller nor any of its officers,
directors or shareholders is a party to any pending or threatened
action, suit, proceeding or investigation, at law or in equity or
otherwise, in, for or by any court or governmental board, commission,
agency, department or officer arising from or relating to this
transaction, the Property or to the past or present operations and
activities of Seller upon or relating to the Property.
9.3 Representations and Warranties Relating to the Property. Seller
represents and warrants to Buyer as follows:
(a) Governmental Restrictions; Condemnation. Seller has not
received, nor is aware of, any notifications, restrictions, or
stipulations from the United States of America, the State of Arizona,
the County of Maricopa, the City of Scottsdale, or any other
governmental authority requiring any work to be done on the Property or
threatening the use of the Property. There are no pending or
threatened condemnation proceedings affecting any portion of the
Property. Seller is not subject to, nor does any basis exist for, any
order, judgment, decree or governmental restriction which would
adversely affect this transaction, the Property or the use of the
Property in the manner presently being conducted by Seller. Seller is
not aware of any plan, study, litigation, action, proceeding or effort
by any governmental authority or private party which in any way
challenges, affects or would challenge or affect the continuation of
the present use and operation of the Property.
(b) Title and Access. Fee simple title to the Property is
currently vested in Seller. Permanent, legal access is available to
the Property from a dedicated public right-of-way.
(c) Knowledge of Adverse Title Matters. Seller has no
knowledge of any title defect, lien, encumbrance, adverse claim, or
other matter relating to the title to the Property or to the title
insurance coverage for the Property which is has not disclosed in
writing to the title company or which is not shown by the public
records.
(d) Leases and Agreements. There are no unrecorded leases,
arrangements, agreements, understandings, options, contracts, or rights
of first refusal affecting or relating to the Property in any way.
(e) Absence of Liens. No lien against the Property has arisen
or exists under Federal or state tax, environmental, or other law,
other than the lien for current real property taxes not yet due and
payable.
(f) Utilities. Water, sewer, drainage, telephone, gas and
electrical facilities are presently installed to the Property line.
(g) Property Description. The legal description of the
Property attached to this Agreement as Exhibit A accurately and
completely describes the property which Seller owns and which Buyer is
purchasing under this Agreement. No person has any unrecorded right,
title or interest in the Property, whether by right of adverse
possession, prescriptive easement or otherwise.
(h) Compliance. To the best of Seller's knowledge, Seller has
complied, in all respects, with all laws, ordinances, rules,
regulations, requirements and orders of federal, state, or local
governments and/or their agencies with respect to the Property and the
operations presently being conducted by Seller upon the Property. To
the best of Seller's knowledge, neither the Property, nor any
improvement or building upon the Property, violates, in any respect,
any such laws, ordinances, rules, regulations, requirements and orders,
including, but not limited to zoning, or building laws, ordinances,
orders or regulations.
(i) Environmental Representations.
(i) To the best of Seller's knowledge, the Property is
free from and has always been free from Hazardous Substances, and
is not now and has never been in violation of any Environmental
Law. Seller has not caused or allowed the use, generation,
manufacture, production, treatment, storage, release, discharge,
or disposal of any Hazardous Substances on, under, or about the
Property, and has not caused or allowed the transportation to or
from the Property of any Hazardous Substance.
(ii) To the best of Seller's knowledge, there are not now
and have never been any buried or partially buried storage tanks
located on the Property.
(iii) Seller has received no warning, notice of violation,
administrative complaint, judicial complaint, or other formal or
informal notice alleging that conditions on the Property or
adjacent property are or have been in violation of any
Environmental Law, or informing Seller that the Property is
subject to investigation or inquiry regarding the presence of
Hazardous Substances on or about the Property or the potential
violation of any Environmental Law.
(iv) For purposes of this Agreement, "Environmental Law"
means any federal, state or local law, statute, ordinance, or
regulation pertaining to health, industrial hygiene, or
environmental conditions, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. SS 9601, et seq.; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. SS 6901, et
seq.; the Toxic Substances Control Act of 1976, 15 U.S.C.
SS 2601, et seq.; the Superfund Amendments and Reauthorization
Act of 1986, Title III, 42 U.S.C. SS 11001, et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. SS 1801, et
seq.; the Clean Air Act, 42 U.S.C. SS 7401, et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. SS 1251, et seq.; the Safe
Drinking Water Act, 42 U.S.C. SS 300f, et seq.; the Solid Waste
Disposal Act, 42 U.S.C. SS 3251, et seq.; and any other federal,
state or local law, statute, ordinance, or regulation now in
effect or hereafter enacted which pertains to health, industrial
hygiene, or the regulation or protection of the environment,
including, without limitation, ambient air, soil, groundwater,
surface water, and/or land use. For purposes of this Agreement,
Hazardous Substance" means any material, waste, substance,
pollutant, or contaminant which may or could pose a risk of
injury or threat to health of the environment.
(j) Mechanics' Liens. No work has been performed on or about
the Property or to any improvements located thereon within six (6)
months prior to the Opening Date that could give rise to any mechanics'
or materialmen's liens whatsoever.
(k) Information. There is no information or document not
disclosed or provided by Seller to Buyer, directly or indirectly
relating to this transaction or to the ownership or use of the
Property.
(l) Disclosure. No representation, warranty or covenant
contained in this Agreement and no statement contained in the Exhibits
or in any certificate or other instrument furnished or to be furnished
to Buyer as required by this Agreement or in connection with the
transactions contemplated by this Agreement, contains or will contain
any untrue statement of a material fact, or omits or will omit to state
a material fact which is necessary in order to make the statements
contained herein or therein not misleading.
For purposes of this Section 10.1, where a representation or warranty is
qualified by the phrase "to the best of Seller's knowledge" or words of
similar import, the phrase means that the representation or warranty is made
to the best of Seller's knowledge, without investigation or inquiry.
ARTICLE 10
BUYER'S REPRESENTATIONS AND WARRANTIES
10.1 Nature of Buyer's Representations. Each of the representations
and warranties of Buyer contained in this Article 10 constitutes a material
part of the consideration to Seller and Seller is relying on the correctness
and completeness of these representations and warranties in entering into
this transaction. Each of the representations and warranties is true and
accurate as of the date of execution of this Agreement by Buyer, will be true
and accurate as of the Closing, and will survive the Closing and regardless
of any investigation or inspection by Seller.
10.2 Representations and Warranties as to Buyer and the Transaction.
Buyer represents and warrants to Seller as follows:
(a) Organizational Status. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Arizona and has full power and authority to enter into and to
perform its obligations under this Agreement. The persons executing
this Agreement on behalf of Buyer have full power and authority to do
so and to perform every act and to execute and deliver every document
and instrument necessary or appropriate to consummate the transactions
contemplated by this Agreement.
(b) Entity Action. All corporate action on the part of Buyer
and its shareholders which is required for the execution, delivery and
performance by Buyer of this Agreement and each of the documents and
agreements to be delivered by Buyer at the Closing has been duly and
effectively taken.
(c) Enforceable Nature of Agreement. This Agreement and each
of the documents and agreements to be delivered by Buyer at the
Closing, constitute legal, valid and binding obligations of Buyer,
enforceable against Buyer in accordance with their respective terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, or similar
laws affecting the enforcement of creditors' rights generally, and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a court of law or
equity).
(d) Violations; Consents; Defaults. Neither the execution of
this Agreement nor the performance by Buyer of its obligations under
this Agreement will result in any breach or violation of the terms of
any law, rule, ordinance, or regulation or of any decree, judgment or
order to which Buyer or any officer, director or shareholder of Buyer
is a party now in effect from any court or governmental body. There
are no consents, waivers, authorizations or approvals from any third
party necessary to be obtained by Buyer in order to carry out the
transactions contemplated by this Agreement. The execution and
delivery of this Agreement and performance by Buyer of its obligations
under this Agreement will not conflict with or result in a breach or
default (or constitute an event which, with the giving of notice or the
passage of time, or both, would constitute a default) under Buyer's
articles of incorporation or bylaws or any indenture, mortgage, lease,
agreement, or other instrument to which Buyer is a party or by which
Buyer or any of its assets may be bound. The execution and delivery of
this Agreement and performance by Buyer of its obligations under this
Agreement will not result in the creation of any new, or the
acceleration of any existing, lien, charge, or encumbrance upon the
Property.
For purposes of this Section 10.2, the knowledge of each officer, director
and shareholder of Buyer will be imputed to Buyer. Where a representation or
warranty is qualified by the phrase "to the best of Buyer's knowledge" or
words of similar import, the phrase means that the representation or warranty
is made to the best of Buyer's knowledge, without investigation or inquiry.
ARTICLE 11
REMEDIES
11.1 Seller's Remedies. If Buyer fails to deposit the remainder
of the Sales Price in the time and manner set forth in this Agreement or to
perform when due any other act required by this Agreement or otherwise
breaches this Agreement, Seller's sole and exclusive remedy will be to cancel
this Agreement and the Escrow, such cancellation to be effective immediately
upon Seller giving written notice of cancellation to Buyer and Escrow Agent.
Upon such cancellation, Seller will be entitled to retain from the Deposit
the reasonable costs and expenses incurred by Seller in connection with this
Agreement, not to exceed Twenty Thousand Dollars ($20,000), and Buyer shall
be entitled to the immediate return of the remainder of the Deposit.
11.2 Buyer's Remedies. If Seller fails to perform when due any act
required by this Agreement to be performed or otherwise breaches this
Agreement, then, as its sole remedy, Buyer may cancel this Agreement and the
Escrow, such cancellation to be effective immediately upon Buyer giving
written notice of cancellation to Seller and Escrow Agent. In which event
Buyer shall be entitled to the immediate return of the Deposit and the
reasonable costs and expenses incurred by Buyer in connection with this
Agreement, not to exceed Twenty Thousand Dollars ($20,000).
ARTICLE 12
GENERAL PROVISIONS
12.1 Certain Definitions. As used in this Agreement, certain
capitalized terms are defined as follows:
(a) "Claims" means any and all obligations, debts, covenants,
conditions, representations, costs, and liabilities and any and all
demands, causes of action, and claims, of every type, kind, nature or
character, direct or indirect, known or unknown, absolute or
contingent, determined or speculative, at law, in equity or otherwise,
including attorneys' fees and litigation and court costs.
(b) "Related Parties" means, with respect to any person or
entity, the officers, directors, shareholders, partners, members,
employees, agents, attorneys, successors, personal representatives,
heirs, executors, or assigns of any such person or entity.
12.2 Assignment. At any time prior to the Closing, Buyer may assign
its rights under this Agreement to an Affiliate of Buyer. Upon execution by
such Affiliate of a document in which the Affiliate assumes the obligations
of Buyer and agrees to perform those obligations, Seller agrees that the
assignor will be released from all obligation and liability as Buyer under
this Agreement and that Seller will accept performance of all of Buyer's
obligations by the assignee. For purposes of this Agreement, an "Affiliate"
shall be any entity directly or indirectly controlling, controlled by or
under common control with Buyer.
12.3 Binding Effect. The provisions of this Agreement are binding
upon and will inure to the benefit of the parties and their respective heirs,
personal representatives, successors and assigns.
12.4 Attorneys' Fees. If any action is brought by either party in
respect to its rights under this Agreement, the prevailing party will be
entitled to reasonable attorneys' fees and court costs as determined by the
court.
12.5 Waivers. No waiver of any of the provisions of this Agreement
will constitute a waiver of any other provision, whether or not similar, nor
will any waiver be a continuing waiver. No waiver will be binding unless
executed in writing by the party making the waiver. Either party may waive
any provision of this Agreement intended for its benefit; provided, however,
such waiver will in no way excuse the other party from the performance of any
of its other obligations under this Agreement.
12.6 Construction. This Agreement will be construed according to the
laws of the State of Arizona, without giving effect to its conflict of laws
principles. References in this Agreement to "Sections" or "Articles" are to
the Sections and Articles in this Agreement, unless otherwise noted.
12.7 Time. Time is of the essence of this Agreement.
12.8 Notices. Notices will be in writing and will be given by
personal delivery, by deposit in the United States mail, certified mail,
return receipt requested, postage prepaid, by facsimile transmission, or by
express delivery service, freight prepaid. Notices will be delivered or
addressed to Seller and Buyer at the addresses or facsimile numbers set forth
on the first page of this Agreement or at such other address or number as a
party may designate in writing. The date notice is deemed to have been
given, received and become effective will be (a) the date on which the notice
is delivered, if notice is given by personal delivery, (b) the date of actual
receipt, if the notice is sent through the United States mail or by express
delivery service, or (c) if notice is sent by facsimile transmission, on the
date of transmission, if the transmission is commenced prior to 4:00 o'clock
p.m. (local time at the place of receipt) and continuously transmitted
thereafter until complete, otherwise on the day following the date of
transmission.
12.9 Further Documentation. Each party agrees in good faith to
execute such further or additional documents as may be necessary or
appropriate to fully carry out the intent and purpose of this Agreement.
12.10 Time Periods. Except as expressly provided for in this
Agreement, the time for performance of any obligation or taking any action
under this Agreement will be deemed to expire at 5:00 o'clock p.m. (Phoenix
time) on the last day of the applicable time period provided for in this
Agreement. If the time for the performance of any obligation or taking any
action under this Agreement expires on a Saturday, Sunday or legal holiday,
the time for performance or taking such action will be extended to the next
succeeding day which is not a Saturday, Sunday or legal holiday.
12.11 Headings and Counterparts. The headings of this Agreement are
for purposes of reference only and will not limit or define the meaning of
any provision of this Agreement. This Agreement may be executed in any
number of counterparts, each of which will be an original but all of which
will constitute one and the same instrument.
12.12 Entire Agreement. This Agreement, which includes the following
Exhibits:
Exhibit A Legal Description
Exhibit B Deed of Trust
constitutes the entire agreement between the parties pertaining to the
subject matter contained in this Agreement. All prior and contemporaneous
agreements, representations and understandings of the parties, oral or
written, are superseded by and merged in this Agreement. No supplement,
modification or amendment of this Agreement will be binding unless in writing
and executed by Buyer and Seller.
SELLER:
/s/ XXXXX X. XXXXXXX
----------------------------------------
XXXXX XXXXXXX, AS TRUSTEE OF THE ACRIDGE
FAMILY TRUST
BUYER:
GIANT INDUSTRIES, INC.
By /s/ XXXX X. XXX
--------------------------------------
Its VP, TREASURER AND FINANCIAL OFFICER
-------------------------------------
The undersigned executes this Agreement
for the purpose of agreeing to the
provisions of Section 2.3(b):
/s/ XXXXX X. XXXXXXX
---------------------------------------
XXXXX X. XXXXXXX
ESCROW AGENT ACCEPTANCE
Escrow Agent hereby accepts the engagement to handle the escrow established
by this Agreement in accordance with the terms set forth in this Agreement.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Name: XXXXX XXXXXXXX
---------------------------------
Title: ESCROW OFFICER
--------------------------------
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
A parcel of land containing approximately 40 acres located at 0000 Xxxx
Xxxxx Xxxx in the City of Scottsdale, Arizona, more particularly described
as follows:
THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION THIRTY-ONE (31), TOWNSHIP FIVE (5) NORTH,
RANGE (5) EAST OF THE GILA AND SALT RIVER BASE AND
MERIDIAN, MARICOPA COUNTY, ARIZONA;
EXCEPT ALL THE COAL AND OTHER MINERALS AS RESERVED
IN THE PATENT FROM THE UNITED STATES OF AMERICA.
EXHIBIT B
DEED OF TRUST
