EXHIBIT 10.24
REAL ESTATE PURCHASE AGREEMENT
THIS AGREEMENT is made this 5th day of October, 1997, between
Pinnacle Sonoran Desert Properties, L.L.C. ("Seller") and Giant
Industries Arizona, Inc. ("Purchaser").
In consideration of the following mutual promises, Seller and
Purchaser agree as follows:
1. SALE AND PURCHASE. Upon the following terms and
conditions, Seller shall sell and Purchaser shall purchase a
portion of that certain parcel of real estate known as Assessors
Parcel #211-40-006E and a portion of #211-40-006L, together with
all improvements thereon and appurtenances thereto, including all
fixtures and equipment attached thereto, located on the Northwest
corner of Xxxxx and Dynamite Boulevards, Phoenix, Arizona (the
"Property"). (See Exhibit A).
2. PURCHASE PRICE AND TERMS OF PAYMENT. The "Purchase
Price" for the Property shall be approximately Twelve and 20/100
Dollars ($12.20) per square foot for approximately Seventy-five
Thousand Square Feet (75,000 S.F.). Actual site perimeter
dimensions shall be as mutually agreed and indicated on a final
survey plat. The Purchase Price shall be payable by Purchaser to
Seller as follows:
a) XXXXXXX MONEY DEPOSIT. Within ten (10) days from
execution of this Agreement the sum of Ten Thousand and No/100
Dollars ($10,000.00) shall be deposited by Purchaser in escrow
with a mutually agreed to escrow agent as a refundable xxxxxxx
money deposit. The xxxxxxx money deposit shall be applied toward
the Purchase Price if Purchaser proceeds to buy the Property.
b) INSPECTION PERIOD DEPOSITS. Seller hereby grants
Purchaser an inspection period as described in Paragraph 4(a) of
this Agreement.
c) BALANCE AT CLOSING. The balance of the Purchase
Price shall be paid by Purchaser at Closing as later defined, in
cash, certified funds or by cashier's check.
3. TITLE EXAMINATION, MARKETABLE TITLE AND TITLE INSURANCE.
a) TITLE EXAMINATION. Within ten (10) days after the
execution of this Agreement, Seller shall furnish Purchaser with a
title commitment issued by a title insurance company licensed to
insure title to real estate in the county where the Property is
located. The title commitment shall constitute a promise by the
title insurance company to insure that title to the Property in
Purchaser's name in the amount of the Purchase Price. Purchaser
shall have five (5) days after the delivery of the title
commitment to Purchaser to review it and to present Seller with
written notice of any objections to the status of title as shown
by the commitment. Any objections which have not been presented
to Seller by the end of such period shall be deemed to have been
waived. If written objections to the title commitment are timely
made, then Seller, at Seller's expense, shall take such steps as
are necessary to satisfy such objections. If Purchaser's
objections have not been satisfied prior to Closing, then
Purchaser shall have the right to elect not to close on the
transaction and not to purchase the Property.
b) MARKETABLE TITLE. At Closing, Seller shall execute
a general warranty deed, conveying good and merchantable title to
the Property to Purchaser free and clear of all liens and
encumbrances and subject only to those matters reflected on the
title commitment and not objected to by Purchaser pursuant to this
paragraph.
c) TITLE INSURANCE. Immediately following Closing,
Seller, at Seller's expense, shall cause the title insurance
company to issue an owner's title insurance policy in favor of
Purchaser for the Property in the amount of the Purchase Price.
The title insurance policy shall set forth exceptions for only
those matters reflected on the title commitment and not objected
to by Purchaser pursuant to this paragraph and the standard
preprinted exceptions contained in the title insurance company's
standard form of title insurance, except that the standard survey
and materialmen's liens exceptions (standard exceptions 1 through
4) shall be deleted at Seller's expense. The expense of obtaining
any and all surveys, affidavits and other matters required by the
title insurance company to delete such standard exceptions shall
be borne by Seller.
4. CONTINGENCIES.
a) INSPECTION PERIOD. Purchaser shall have ten (10)
days after the execution of this Agreement in which to inspect the
Property and determine if, in Purchaser's opinion, the property is
suitable for development of a retail food and fuel facility. If
no written objections to the Property have been presented to
Seller by the end of such period, then Purchaser shall be deemed
to have accepted the Property and to have waived all objections to
it. If written objections are timely made, Seller, at Seller's
expense, shall take such steps as are reasonably necessary to
correct the conditions complained of. If Purchaser's objections
have not been satisfied prior to Closing, then Purchaser shall
have the right to elect not to close on the transaction and not to
purchase the Property.
b) SURVEY EXAMINATION. Within five (5) days after the
execution of this Agreement, Seller and Purchaser shall agree upon
site boundary dimensions and within an additional five (5) days
Seller shall furnish Purchaser with a current boundary and
improvement survey of the Property including a legal description
prepared by a duly licensed Arizona land surveyor. Purchaser
shall have two (2)) days after the delivery of the survey to
Purchaser to review it and to present Seller with written notice
of any objections to matters shown by the survey. Any objections
which have not been presented to Seller by the end of such period
shall be deemed to have been waived. If written objections to the
survey are timely made, then Seller, at Seller's expense, shall
take such steps as are necessary to satisfy the objections. If
Purchaser's objections have not been satisfied prior to Closing,
then Purchaser shall have the right to elect not to close on the
transaction and not to purchase the Property.
c) ZONING. Purchaser assumes that current zoning for
the land parcel will allow the construction of a food and fuel
facility , including liquor sales. If any State, County, City or
code restrictions prevent the operation of Purchaser's standard
food and fuel facility, Purchaser shall have the right to cancel
this agreement with no obligation to proceed with Closing.
d) ENVIRONMENTAL EXAMINATION. Within five (5) days of
the execution of this Agreement, Seller shall furnish Purchaser,
at Seller's expense, a Phase 1 Environmental Site Assessment for
the Property. Purchaser shall have five (5) days from the date of
receipt of the Phase 1 Evaluation within which to review the Phase
1 Evaluation. If Purchaser determines that there is reason to
believe that any hazardous waste, hazardous substance, pollutants
or other contaminants (collectively referred to as "Contaminants")
have been released on the Property or from or onto any other
property, then, within two (2) days, Purchaser shall notify Seller
in writing of any objections which Purchaser may have to
environmental matters disclosed by the Phase 1 Evaluation.
Failure to give such written notice to Seller shall constitute a
waiver of any objection by Purchaser to any environmental matter.
Within two (2) days after receiving written notice from Purchaser
of an objection, Seller may either: (i) terminate this Agreement
by written notice to Purchaser, and Escrow Agent, in which event
the xxxxxxx money deposit and all interest accrued thereon, if
any, shall be reimbursed to Purchaser and upon such reimbursement
this Agreement shall terminate and shall be of no further effect
except for those provisions concerning rights and duties after a
failure to close without fault of either party; (ii) commence all
curative actions; or (iii) give written notice of refusal to take
curative action. If Seller gives written notice of refusal to
take curative action, or if Seller commences curative action but
fails to cure any objection prior to the Closing, then Purchaser,
at Purchaser's option, may elect to: (i) waive the objection and
proceed to Closing, in which event all environmental matters shall
be deemed approved and accepted by Purchaser and Seller shall have
no further obligation to undertake curative action; or (ii)
terminate this Agreement by written notice to Seller and Escrow
Agent, in which event the xxxxxxx money deposit and all interest
accrued thereon shall be reimbursed to Purchaser and upon such
reimbursement this Agreement shall terminate and shall be of no
further effect except for those provisions concerning rights and
duties after a failure to close without fault of either party.
e) Purchase is subject to adequate traffic access to and
from the site.
f) Purchase is subject to the Seller providing all
necessary utilities to the site ready for hook-up, and Seller
providing properly compacted site rough graded to within 4" of
Purchaser's expected finished grade.
g) Purchase is subject to acquisition of all required
approvals from state, county, city and neighborhood authorities as
well as Purchaser's Board of Directors to allow the development of
a fuel and food facility.
h) Purchase is subject to a mutual agreement by the
Seller and Purchaser in regards to a sign easement at the
Northwest corner of Xxxxx and Dynamite Boulevards.
In addition to Seller's other indemnification
obligations set forth in this Agreement, Seller shall indemnify
Purchaser and hold Purchaser harmless from and against all
liabilities, obligations, losses, damages, penalties, claims,
environmental response and cleanup costs, finds, actions, suits,
costs, taxes, charges, expenses and disbursements, including legal
fees and expenses incident thereto, imposed on, incurred by, or
reserved against Purchaser in any way relating to or arising out
of the existence or presence of any Contaminant on, under, into or
from the Property at any time prior to Closing, including any
claims or damages in any related to or arising out of the removal,
treatment, storage, disposition, mitigation, cleanup or remedying
of the Contaminants of the Property and any claims or damages
arising from Seller's use of the Property in violation of any
applicable environmental law, rule, regulations or ordinance.
5. CLOSING. Closing of the transaction shall occur within
five (5) days after the final date of the Inspection Period.
Closing will occur in the offices of the title company issuing the
title commitment. The title company shall act, and is hereby
designated by the parties to act, as escrow agent for the Closing.
At Closing, the following actions shall occur, each action being
considered a condition precedent to the others and all being
considered as taking place simultaneously:
a) Seller shall execute, acknowledge and deliver to
Escrow Agent a general warranty deed, conveying the Property to
Purchaser as required under Paragraph 3(b).
b) Purchaser shall deliver to Escrow Agent cash,
certified funds or a cashier's check for the balance of the
Purchase Price, after making such adjustments as are shown on the
closing statements prepared by the Escrow Agent.
c) The Escrow Agent shall prepare and deliver closing
statements showing all prorations and other charges and credits to
each party, such statements to be approved by the respective
parties.
6. POST CLOSING. As soon as is practicable after Closing,
the Escrow Agent shall make such searches of the public records as
may be necessary to enable it to issue the title insurance policy
required to be provided pursuant to Paragraph 3(c), whereupon, if
such searches are satisfactory, then the transaction shall be
deemed to have closed and the Escrow agent shall (i) file the deed
for record, (ii) deliver the recorded deed and title insurance
policy to Purchaser, and (iii) deliver the note to Seller, and
(iv) shall disburse the funds as shown on the closing statements.
If such searches are not satisfactory, then the transaction shall
be deemed not to have closed, and the Escrow Agent shall hold the
unrecorded documents and funds thereafter as agent for the
parties. The documents and funds shall be delivered pursuant to
an agreement of the parties or an order of court specifying the
disposition thereof.
7. CLOSING COSTS. Seller shall pay the fees for recording
any instrument necessary to establish the marketability of
Seller's title to the Property and for recording the deed.
Purchaser shall pay for all other recording fees. Seller and
Purchaser shall each pay one-half (1/2) of any fee charged by the
title insurance company for closing the transaction.
8. PRORATION. Ad valorem taxes and all sewer, garbage,
water and other assessments applicable to the Property shall be
prorated as of the date of Closing, and, unless the actual amounts
for the year in which Closing occurs are known, shall be based
upon the latest known rates applied to the latest known assessed
valuation of the Property. Seller shall provide Purchaser and
Escrow Agent with the latest rates and assessed valuations of the
Property provided to Seller by the appropriate governmental
authorities. The prorations so determined shall be final and not
subject to recomputation after Closing.
9. RISK OF LOSS, POSSESSION AND DELIVERY. Possession of the
Property shall be transferred to Purchaser at Closing, and the
risk of loss shall shift to Purchaser at that time. Seller shall
deliver the Property to Purchaser graded as previously described
with all necessary utilities available for hook-up. Seller shall
be obligated to carry liability and extended coverage insurance on
the Property prior to Closing.
10. DEFAULT AND REMEDIES. If Seller defaults in the
performance of this Agreement, the Purchaser shall have the right
to specific performance, or to rescind this Agreement and recover
or retain the xxxxxxx money deposit, as the case may be, and any
other remedy provided by law. If Purchaser defaults in the
performance of this Agreement, Seller's sole remedy shall be the
retention of the xxxxxxx money deposit.
11. REAL ESTATE COMMISSIONS. Seller and Purchaser hereby
covenant that all real estate commission as a result of this
transaction will be paid by Seller. In the event of a breach of
this covenant, the party breaching this covenant shall indemnify
and hold the other party harmless from any claims of entitlement
to such a fee or commission. This covenant shall survive Closing
or the cancellation of this Agreement.
12. NOTICES. All notices or any other communications
required or permitted hereunder shall be in writing, and shall be
deemed to have been duly given when personally delivered or duly
deposited in the United States certified mail, return receipt
requested, properly stamped and addressed, to the parties at their
addresses listed below:
Seller: Pinnacle Sonoran Desert Properties, L.L.C.
Attention: Xxxx Xxxxxxx
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Purchaser: Giant Industries Arizona, Inc.
Attention: Xxxx Xxxxxx, Director,
Retail Development
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
1. MISCELLANEOUS.
a) ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between Seller and Purchaser respecting the sale
and purchase of the Property, and will supersede and replace any
and all prior and contemporaneous written and oral agreements,
promises, representations, or conditions with respect thereto.
b) APPLICABLE LAW. This Agreement shall be construed
and enforced in accordance with the laws of the State of Arizona.
c) BINDING EFFECT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
heirs, successors, assigns and personal representatives.
d) MODIFICATION. This Agreement may be modified only by
a writing duly executed by the parties.
e) ASSIGNMENTS. This Agreement may not be assigned or
delegated by either party without the consent of the other party.
Any purported assignment without such consent shall be void and
shall entitle the other party to the remedies allowed herein for a
default in the performance of this Agreement.
f) FURTHER DOCUMENTATION. The parties shall, in good
faith, execute such additional documents as may be necessary or
appropriate to fully carry out the intent and purpose of this
Agreement.
g) TAX DOCUMENTATION. Following Closing, Seller shall
file a complete Form 1099-B, Proceeds from Real Estate, Broker,
and Barter Exchange Transactions, with the appropriate office of
the Internal Revenue Service, and shall deliver a copy to
Purchaser. This obligation shall survive Closing.
h) FACSIMILE AGREEMENT. Signed facsimiles of this
Agreement shall be binding.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
SELLER - PINNACLE SONORAN DESERT PROPERTIES, L.L.C.
By: /s/ Xxxxxx Xxxxxxx 10-5-97
-------------------------- -------
Date
PURCHASER - GIANT INDUSTRIES ARIZONA, INC.
By: /s/ Xxxx X. Xxxxxx 10-1-97
-------------------------- -------
Xxxx X. Xxxxxx, Director, Date
Retail Development
EXHIBIT A
September 25, 1997
Legal description for Xxxxx Ranch - Parcel 46 Gas Station Site
A portion of the Southeast quarter of Section 30, Township 5
North, Range 4 East of the Gila and Salt River Base and Meridian,
Maricopa County, Arizona.
