PURCHASE AGREEMENT AND
ESCROW INSTRUCTIONS
BETWEEN
FOOT CREEK CORPORATION OF ARIZONA,
AND
GRANDILLA (ARIZONA), INC.,
BOTH ARIZONA CORPORATIONS,
COLLECTIVELY AS BUYER,
AND
STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC.,
AN ARIZONA CORPORATION
AS SELLER
N.W.C. 00XX XXX XXXXXXXXX XXXXXX
XXXXXXX, XXXXXXX
TABLE OF CONTENTS
PAGE
----
RECITALS.................................................................... 1
AGREEMENTS.................................................................. 1
1. AGREEMENT TO BUY AND SELL.......................................... 1
2. INCLUSIONS IN PROPERTY............................................. 1
3. ACCEPTANCE; OPENING OF ESCROW...................................... 2
3.1 ACCEPTANCE................................................ 2
3.2 OPENING OF ESCROW......................................... 2
4. PURCHASE PRICE..................................................... 2
4.1 PAYMENT OF PURCHASE PRICE...................................... 2
4.1.1 XXXXXXX MONEY................................... 2
4.1.2 ADDITIONAL FUNDS................................ 2
5. XXXXXXX MONEY...................................................... 3
5.1 CANCELLATION BY BUYER; DEFAULT BY SELLER.................. 3
5.2 DEFAULT BY BUYER.......................................... 3
5.3 CLOSE OF ESCROW........................................... 3
6. CLOSE OF ESCROW; CONVEYANCE OF TITLE; TITLE INSURANCE.............. 3
6.1 CLOSE OF ESCROW........................................... 3
6.2 CLOSING COSTS............................................. 3
6.3 DEED AND ASSIGNMENT OF LEASE.............................. 4
6.4 AFFIDAVIT OF PROPERTY VALUE............................... 4
6.5 TITLE INSURANCE........................................... 4
6.6 IRS SECTION 1445.......................................... 5
7. BUYER'S CONTINGENCIES.............................................. 5
7.1 STATUS OF TITLE........................................... 5
7.2 THE STUDY PERIOD.......................................... 5
7.3 THE SURVEY................................................ 6
7.4 SUPPLEMENTAL TITLE REPORT AND OBJECTIONS.................. 6
7.5 EXISTING LEASE DOCUMENTS; ESTOPPEL CERTIFICATE............ 7
7.6 ENVIRONMENTAL SURVEY...................................... 7
7.7 FAILURE OF CONDITION PRECEDENT............................ 7
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8. DELIVERY OF STUDIES................................................ 7
9. DELIVERY OF POSSESSION............................................. 8
10. SELLER'S REPRESENTATIONS AND WARRANTIES............................ 8
10.1 AUTHORITY................................................. 8
10.2 LITIGATION................................................ 8
10.3 TITLE..................................................... 8
10.4 CONDEMNATION.............................................. 8
10.5 NO VIOLATION OF LAWS...................................... 8
10.6 ADVERSE POSSESSION........................................ 9
10.7 INSOLVENCY................................................ 9
10.8 ABSENCE OF DEFAULTS....................................... 9
10.9 WATER RIGHTS.............................................. 9
10.10 HAZARDOUS MATERIALS....................................... 9
10.11 EXISTING LEASE............................................ 10
10.12 NO MODIFICATIONS OR DEFAULTS.............................. 10
10.13 NO FUTURE ALTERATIONS..................................... 10
10.14 CONCERNING REPRESENTATIONS................................ 10
10.15 MATERIALITY............................................... 12
11. BUYER'S WARRANTIES................................................. 12
11.1 AUTHORITY................................................. 12
11.2 LITIGATION................................................ 12
11.3 ABSENCE OF DEFAULTS....................................... 12
11.4 CONTINUING NOTIFICATION OBLIGATIONS....................... 12
12. SURVIVAL........................................................... 12
13. BROKER'S COMMISSION................................................ 12
13.1 BROKERS................................................... 12
13.2 INDEMNIFICATION FOR COMMISSION............................ 13
13.3 SURVIVAL.................................................. 13
14. Water Rights....................................................... 13
15. Nominee and Right of Transfer; 1031 Exchange....................... 13
16. RISK OF LOSS....................................................... 14
17. [RESERVED]......................................................... 14
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18. REMEDIES........................................................... 14
18.1 SELLER'S BREACH........................................... 14
18.2 BUYER'S BREACH............................................ 15
19. GENERAL PROVISIONS................................................. 15
19.1 ATTORNEYS' FEES........................................... 15
19.2 NOTICES................................................... 15
19.2.1 ADDRESSES.......................................... 15
19.2.2 EFFECTIVE DATE OF NOTICES......................... 16
19.3 ESCROW INSTRUCTIONS....................................... 16
19.4 ESCROW CANCELLATION CHARGES............................... 16
19.5 APPROVALS................................................. 17
19.6 FURTHER INSTRUMENTS AND DOCUMENTS......................... 17
19.7 GOVERNING LAW; CHOICE OF FORUM............................ 17
19.8 CONSTRUCTION.............................................. 17
19.9 TIME OF ESSENCE........................................... 17
19.10 INTERPRETATION............................................ 17
19.11 HEADINGS AND COUNTERPARTS................................. 18
19.12 SUCCESSORS AND ASSIGNS.................................... 18
19.13 SEVERABILITY.............................................. 18
19.14 EXHIBITS; RECITALS........................................ 18
19.15 RELATIONSHIP.............................................. 18
19.16 INTEGRATION CLAUSE; NO ORAL MODIFICATION.................. 18
19.17 NO ASSUMPTION OF SELLER'S LIABILITIES..................... 18
19.18 WAIVER.................................................... 18
19.19 BINDING AGREEMENT......................................... 19
EXHIBITS
Exhibit A - Legal Description of the Property
Exhibit B - Deed
Exhibit C - Non-Foreign Affidavit
Exhibit D - Escrow Instructions
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS (this "Agreement") is
entered into effective as of _________________, 1999 (the "Effective Date") by
and between FOOT CREEK CORPORATION OF ARIZONA, and GRANDILLA (ARIZONA), INC.,
both Arizona corporations, or their respective nominee(s) (collectively,
"Buyer"), and STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC., an Arizona
corporation ("Seller").
RECITALS:
A. The real property which is the subject of this Agreement is that certain
improved property located at the northwest corner of 24th and Jefferson Streets,
Phoenix, Arizona which is legally described on EXHIBIT A and is more thoroughly
described below (the "Property"). The Property is approximately 2.45 acres or
approximately 106,722 Net Surveyed Square Feet (as defined below).
B. The Property is presently affected by a Net Lease (the "Lease"), dated
October 1, 1998, wherein Dollar Rent A Car Systems, Inc., an Oklahoma
corporation, is tenant ("Tenant"), and Seller is Landlord.
C. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, the Property, all upon the terms and conditions set forth in this
Agreement. D. It is presently contemplated that the two entities constituting
"Buyer" shall receive their interests in the Property in equal shares, but such
parties shall be responsible, if they wish to obtain unequal shares, to so
inform Seller a reasonable time prior to Closing so that the Closing documents
may be drawn accordingly.
AGREEMENTS:
NOW THEREFORE, in consideration of the promises set forth in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by Seller and Buyer (collectively the "Parties" or
each individually a "Party"), hereby agree as follows:
1. AGREEMENT TO BUY AND SELL. Subject to the terms set forth below, Buyer
agrees to purchase the Property from Seller and Seller agrees to sell the
Property to Buyer.
2. INCLUSIONS IN PROPERTY. The term "Property" shall also include the
following:
A. All improvements, if any, located on the Property;
B. The Lease and all rights, deposits, rents and other charges
thereunder, such rents and other charges being pro-rated to Closing;
C. All tenements, hereditaments and appurtenances, if any, pertaining
to the Property;
D. All mineral, water and irrigation rights (the "Water Rights"), if
any, running with or otherwise pertaining to the Property;
E. All interest, if any, of Seller in any road adjoining the Property,
to the center line of such road; and
F. All interest, if any, of Seller in any award made or to be made or
settlement in lieu of such an award for damage to the Property by reason of
condemnation, eminent domain or exercise of police power.
3. ACCEPTANCE; OPENING OF ESCROW.
3.1.ACCEPTANCE. The offer represented by this Agreement shall be
deemed accepted upon Seller's execution and delivery of one or more
counterparts of this Agreement to Escrow Agent (as defined below) on or
before November 10, 1999 (the "Acceptance Date").
3.2. OPENING OF ESCROW. The Escrow (herein so called), shall be opened
when one or more fully executed counterparts of this Agreement executed by
Seller and Buyer, respectively, have been delivered to Fidelity National
Title Insurance Company, Attn: Xx. Xxxxxx XxXxxx, 0000 X. Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Telephone (000) 000-0000, Fax (602)
000-0000 (the "Escrow Agent"), on or before the Acceptance Date (the
"Opening of Escrow"). Escrow Agent shall advise Seller and Buyer, in
writing, of the Opening of Escrow and the date thereof. Escrow Agent shall
provide the Parties with an uninsured closing protection and agency
authority letter as soon as possible after the Opening of Escrow.
4. PURCHASE PRICE.
4.1 PAYMENT OF PURCHASE PRICE. The Purchase Price (herein so called)
to be paid by Buyer to Seller for the Property shall be $1,450,000.00,
payable as follows:
4.1.1 XXXXXXX MONEY. $50,000.00 Xxxxxxx Money (herein so called),
by check, shall be deposited in Escrow within 5 days of the Opening of
Escrow. The Xxxxxxx Money is to be held by Escrow Agent until
cancellation as provided below or paid to Seller at Close of Escrow.
4.1.2. ADDITIONAL FUNDS. The balance of the Purchase Price shall
be paid in cash, by check or other immediately available funds, to be
deposited in Escrow on or before Close of Escrow (the "Additional
Funds"), which is to be held by Escrow Agent until cancellation of
this Agreement as provided below or paid to Seller at Close of Escrow.
5. XXXXXXX MONEY. Seller and Buyer hereby instruct Escrow Agent to put the
Xxxxxxx Money in a federally insured daily interest-bearing passbook account on
behalf of Seller and Buyer. The Xxxxxxx Money, and all interest accrued thereon,
shall be applied as follows:
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5.1. CANCELLATION BY BUYER; DEFAULT BY SELLER. If Buyer cancels this
Agreement, as Buyer is entitled so to do as provided in this Agreement, or
Seller breaches this Agreement, the Xxxxxxx Money and any and all interest
earned to the effective date of withdrawal shall be paid immediately to
Buyer.
5.2. DEFAULT BY BUYER. If Buyer breaches this Agreement, the Xxxxxxx
Money and any and all interest earned to the date of withdrawal shall be
paid to Seller as liquidated damages, as Seller's only remedy, it being
acknowledged and agreed that it would be difficult or impossible to
determine Seller's exact damages in case of a default by Buyer, and that
the amount of the Xxxxxxx Money is a reasonable estimate of Seller's
damages caused by Buyer's default.
5.3. CLOSE OF ESCROW. If the Escrow closes, the Xxxxxxx Money and any
and all interest earned to Close of Escrow shall be credited to Buyer,
automatically applied against the Purchase Price and paid to Seller at
Close of Escrow.
6. CLOSE OF ESCROW; CONVEYANCE OF TITLE; TITLE INSURANCE.
6.1. CLOSE OF ESCROW. Consummation of the purchase of the Property
(the "Close of Escrow" or "Closing") and recordation of the Deed (as
defined below) shall take place on or before the 15th day following the
satisfaction (or the written waiver by Buyer) of all of the conditions
precedent set forth in Section 7 below, or such later date mutually agreed
to in writing by and between Buyer and Seller (the "Closing Date"). At or
before Closing, each Party shall execute and deliver such documents and
perform such acts as are provided for in this Agreement.
6.2. CLOSING COSTS. All recording fees, escrow service fees and other
escrow closing costs shall be charged by Escrow Agent to, and paid by, the
respective Parties in accordance with local custom as determined by Escrow
Agent unless payment of such costs is specifically provided for in this
Agreement. To the extent not directly billed through to, or paid directly
by, Tenant under the Lease, real property taxes, improvement liens and
other assessments, if any, shall be prorated to the Close of Escrow, which
taxes shall be prorated as of Close of Escrow on the basis of the latest
available tax statement; provided, however, that if, after Closing, the
actual tax xxxx for the Property varies from Escrow Agent's pro-ration
figures and a Party notifies the other within 12 months of Closing, a new
pro-ration shall be completed and the Party in whose favor any difference
exists after pro-ration shall be entitled to recover such difference from
the other Party. Except as provided in this Section, Seller and Buyer shall
each bear their own costs in regard to the sale and purchase of the
Property (the "Purchase Transaction"). Seller agrees that all closing costs
payable by Seller shall be deducted from Seller's proceeds otherwise
payable to Seller at Close of Escrow. Buyer shall deposit with Escrow Agent
sufficient cash to pay all of Buyer's closing costs.
6.3. DEED AND ASSIGNMENT OF LEASE. On or prior to the Close of Escrow,
Seller shall duly execute, acknowledge and deliver to Escrow Agent for
recordation, if appropriate, and delivery to Buyer upon Close of Escrow a
special warranty deed, in form and content identical to EXHIBIT B (the
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"Deed"), conveying title to the Property to Buyer and warranting fee title
to the Property subject only to the matters of record.
Seller shall also execute, acknowledge and deliver to Escrow Agent for
recordation, in form and content satisfactory to Buyer and Seller in their
respective reasonable discretions, a form of assignment of lease ("Assignment of
Lease"), conveying and transferring the leasehold interest under the Lease to
Buyer.
All components of the Property shall be deemed transferred and conveyed by
execution and delivery of the Deed and the Assignment of Lease.
6.4. AFFIDAVIT OF PROPERTY VALUE. On or prior to the Close of Escrow,
Seller and Buyer shall duly execute, acknowledge and deliver to Escrow
Agent an affidavit of real property value ("Affidavit of Property Value")
pursuant to A.R.S. ss. 11-1133.
6.5. TITLE INSURANCE. Escrow Agent shall issue or cause to be issued
an extended coverage owner's policy of title insurance in the amount of the
Purchase Price (as defined below), it being agreed that Seller shall pay
only the premium for a standard owner's policy in the amount of the
Purchase Price (the "Owner's Policy") and Buyer shall pay any additional
cost. The Owner's Policy is to include, among other things, the following
endorsements which are also to be delivered to Buyer: (i) a combined ALTA
endorsement No. 3R and 5 referring to the Survey and modified as applicable
to the Owner's Policy to the effect that the insured legal and the Survey
legal describe one and the same Property; (ii) a patent endorsement if the
Property is subject to any restrictions or other matters set forth in any
federal or state patent with respect to Property; (iii) a water rights
endorsement; (iv) a creditor's rights endorsement; (v) if necessary, an
endorsement insuring against archaic deed restrictions; and (vi) such other
endorsements as Buyer shall reasonably deem necessary. The cost of all such
endorsements shall be paid by Buyer.
6.6. IRS SECTION 1445. Seller shall furnish to Buyer in Escrow by
Close of Escrow a sworn affidavit, in the form of EXHIBIT C (the
"Non-Foreign Affidavit") stating under penalty of perjury that Seller is
not a "foreign person" as such term is defined in Section 1445(f)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"). If Seller does not
timely furnish the Non-Foreign Affidavit, Buyer may withhold (or direct
Escrow Agent to withhold) from the Purchase Price an amount equal to the
amount required to be so withheld pursuant to Section 1445(a) of the Code,
and such withheld funds shall be deposited with the Internal Revenue
Service as required by Section 1445(a) and the regulations promulgated
thereunder. The amount withheld, if any, shall nevertheless be deemed to be
part of the Purchase Price paid to Seller.
7. BUYER'S CONTINGENCIES. Buyer's obligation to consummate the transactions
contemplated by this Agreement is subject to the satisfaction of all of the
following conditions precedent (any or all of which may be waived by Buyer, but,
except as otherwise provided in this Agreement, only in a writing signed by
Buyer or its duly authorized agent):
7.1. STATUS OF TITLE. Buyer, in Buyer's sole and absolute discretion,
shall have approved the condition of title to the Property. In this regard,
with reasonable promptness after the Opening of Escrow, Seller shall cause
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Escrow Agent to issue and deliver to Seller and Buyer a commitment for
title insurance concerning the Property, together with legible copies of
all instruments referred to therein (collectively the "Report"). The Report
is to be preliminary to the issuance of the Owner's Policy. Buyer shall
have until 5:00 p.m. Arizona time on the 20th day after Buyer's receipt of
the Report and the Survey in which to advise Seller and Escrow Agent, in
writing, either: (i) that the condition of title to the Property as
reflected in the Report and the Survey is acceptable to Buyer; or (ii) to
object to any easements, liens, encumbrances or other items, exceptions or
requirements in the Report and/or the Survey (the "Title Objections"). If
the Title Objections are made within the time specified, Seller may attempt
to cure the Title Objections by 5:00 p.m. Arizona time on the 5th day after
the delivery of the Title Objections by Buyer (the "Title Cure Deadline").
If Seller should be unable or unwilling to cure the Title Objections by the
Title Cure Deadline, then Buyer, by written notice to Seller and Escrow
Agent to be given by 5:00 p.m. Arizona time on the 5th day after the Title
Cure Deadline, shall either: (i) waive the curing of the portion of the
Title Objections that Seller shall have been unable or unwilling to cure
and proceed to close the Escrow; or (ii) Buyer shall cancel this Agreement.
If, for any reason, Buyer fails to notify Seller and Escrow Agent of
Buyer's approval of the condition of title to the Property or of Buyer's
election to proceed or cancel within the time periods specified above,
Buyer shall be deemed to have approved the condition of title to the
Property as shown by the Report and the Survey or to have elected to
proceed to close the Escrow, as applicable. Any provision of this Section 7
to the contrary notwithstanding, Seller, at Seller's sole cost, shall cause
to be released of record by Close of Escrow any monetary lien or assessment
constituting an encumbrance upon the title of the Property as disclosed in
the Report, excepting only inchoate liens for taxes and assessments not yet
due and payable.
7.2. THE STUDY PERIOD. Buyer, in Buyer's sole and absolute discretion,
shall have approved the condition of the Property. Buyer shall have until
5:00 p.m. Arizona time on the 30th day after the Opening of Escrow (the
"Study Period"), at Buyer's sole cost, within which to conduct and/or
approve any investigations, studies or tests deemed necessary by Buyer, in
Buyer's sole discretion, to determine the feasibility of acquiring and
developing the Property, including, but not limited to, environmental, soil
and engineering studies and the investigation of zoning, title, land, water
management, wetlands, construction and permit and access issues (the
"Studies"). Seller hereby grants to Buyer and Buyer's agents, employees or
contractors the right to enter upon the Property at any time or times
during the Study Period to conduct the Studies. In consideration of Seller
granting Buyer the right of entry to the Property, Buyer shall and does
hereby agree to indemnify and hold Seller harmless from any and all
liabilities, claims, losses or damages, including, but not limited to,
court costs and attorneys' fees, which may be incurred by Seller because of
the Studies or any activities by Buyer or its consultants related to the
Studies, and to restore the Property to the condition existing immediately
prior to any such Study, if any. Buyer's obligations as provided in the
preceding sentence shall survive the cancellation of this Agreement. If,
for any reason whatsoever, in Buyer's sole discretion the results of any of
the Studies are not acceptable to Buyer and Buyer so notifies Seller and
Escrow Agent in writing on or before the end of the Study Period (the
"Cancellation Notice"), this Agreement shall be canceled. Buyer's failure,
for any reason, to give the Cancellation Notice before the expiration of
the Study Period automatically shall be deemed to be Buyer's election to
close the Escrow.
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7.3. THE SURVEY. Buyer, in Buyer's sole and absolute discretion, shall
have approved the condition of the Property as reflected in the Survey. In
this regard, Seller, within two (2) days after the Opening of Escrow, shall
deliver to Buyer and Escrow Agent Seller's existing survey of the Property
(the "Survey). If Buyer wishes, Buyer may have the Survey updated at
Buyer's cost and expense. If Buyer does so decide, such updated Survey
shall become the Survey described herein and the date that Buyer receives
such updated Survey shall be the date to begin Buyer's objection period set
forth immediately below. If Buyer does not decide to update the Survey,
then the existing Survey shall constitute the Survey hereunder. Buyer shall
have until 5:00 p.m. Arizona time on the 20th day after Buyer's receipt of
the Report and the Survey (either the existing Survey, if Buyer does not
decide to update same, or the updated Survey, if Buyer does so decide) in
which to advise Seller and Escrow Agent, in writing, either: (i) that title
to the Property as reflected in the Report and the Survey is acceptable to
Buyer; or (ii) give notice of any Title Objections pursuant to the terms of
Section 7.1 above, whereupon the provisions in Section 7.1 above regarding
cure and cancellation shall apply. If Buyer waives its feasibility
contingency set forth in Section 7.2 above, Seller shall, at Seller's sole
cost and expense, cause the Survey to be recertified to Buyer, Buyer's
successors and assigns and Buyer's lender prior to Closing.
7.4. SUPPLEMENTAL TITLE REPORT AND OBJECTIONS. Escrow Agent shall
immediately issue and deliver to the Parties any supplemental title
report(s) deemed necessary by Escrow Agent (the "Supplemental Report").
Buyer shall have until 5:00 p.m. Arizona time on the 5th day after Buyer's
receipt of any Supplemental Report in which to advise Seller and Escrow
Agent, in writing, of any objections Buyer may have to any item set forth
in the Supplemental Report(s) which was not set forth in the Report or a
previous Supplemental Report (the "Supplemental Objections"), whereupon the
provisions in Section 7.1 above regarding cure and cancellation shall
apply.
7.5. EXISTING LEASE DOCUMENTS; ESTOPPEL CERTIFICATE. Buyer, in Buyer's
sole and absolute discretion, shall have approved the Lease, the financial
capability of Tenant, and any other items associated therewith. In that
regard, within thirty (30) days prior to Closing and a condition to Buyer's
obligations hereunder and to the forfietability of the Xxxxxxx Money,
Seller shall deliver to Buyer an Estoppel Certificate (herein so called) in
form and substance as agreed upon by the parties during the Study Period
and in a form generally described in the Lease. It shall be incumbent upon
Seller to draft and present to Buyer for approval a form of Estoppel
Certificate reasonably promptly after Opening of Escrow. If the Estoppel
Certificate indicates either a breach or default under the Lease or is
otherwise not acceptable to Buyer in its sole discretion, Buyer, in its
sole discretion, may either: 1) cancel the transaction, receive a return of
its Xxxxxxx Money and neither party shall have further liability together
hereunder; 2) waive the condition and proceed to Closing; or 3) extend the
Closing from time to time to endeavor to either receive an acceptable
Estoppel Certificate or to cure any defaults described in an Estoppel
Certificate which has been received.
7.6. ENVIRONMENTAL SURVEY. Within ten (10) days after Opening of
Escrow, Seller shall provide to Buyer Seller's existing Phase I
Environmental Survey of the Property (the "Environmental Survey"). Buyer
shall have until the expiration of the Study Period in which to review and
approve the Environmental Survey. Buyer understands that there are two
former underground storage tanks located on the Property which have been
removed according to a closure letter from the Arizona Department of
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Environmental Quality which Seller will supply to Buyer with the
Environmental Survey. In addition, Buyer understands that the Property is
located in an area formerly denominated as the so-called "WQARF East
Washington" litigation area (the "East Washington Issues"). Both of the
foregoing are described in the Environmental Survey. If Buyer waives its
feasibility contingency set forth in Section 7.2 above, Seller shall cause
the original Environmental Survey to be updated to a date within thirty
(30) days prior to the close of the Study Period and recertified to Buyer,
Buyer's successors and assigns and Buyer's lender. If this revised
Environmental Survey sets forth any items which were not originally
reflected in the Environmental Survey, Buyer shall have five (5) business
days within which to object to this revised Environmental Survey based on
these new conditions. If Buyer does so object, Seller shall have the right,
but not the obligation, to endeavor to cure such matters, in which case
Closing shall be extended for a reasonable period of time not to exceed
January 31, 2000, in which to cure such items, or Seller may indicate to
Buyer within five (5) business days after receipt of Buyer's objections
that Seller will not endeavor to cure same. In that event, Buyer may either
waive its objections and close Escrow or cancel this transaction, whereupon
the Xxxxxxx Money shall be returned to Buyer and neither party shall have
further liability to the other hereunder, except for Buyer's obligations of
restoration and indemnity which shall survive any such termination.
7.7. FAILURE OF CONDITION PRECEDENT. If Buyer elects to cancel this
Agreement pursuant to the foregoing provisions of this Section 7 or due to
failure to occur of any condition precedent to Closing set forth in this
Agreement other than a condition which results solely on account of Buyer's
breach hereunder or Buyer's actions hereunder, the Xxxxxxx Money plus any
and all interest accrued thereon shall be refunded immediately by Escrow
Agent to Buyer and, except as otherwise provided in this Agreement, neither
Seller nor Buyer shall have any further liability or obligation under this
Agreement.
8. DELIVERY OF STUDIES. Within 5 days following the Opening of Escrow and
thereafter until the Closing, Seller agrees to provide Buyer with access to any
and all pertinent information in Seller's possession or control relating to the
operation, maintenance, construction or repair of the Property, including, but
not limited to, any CC&R's, site history, environmental and entitlement
material, zoning, platting, engineering, soil tests, water tests, plans and
specifications relating to Property improvements, any and all information
regarding Lease documents, Tenant's financial statements and financial history,
environmental tests, construction, master planning, architectural drawings,
correspondence with public entities and like matters regarding the Property.
9. DELIVERY OF POSSESSION. Seller, at Seller's cost, shall vacate and
deliver possession of the Property to Buyer at Close of Escrow, free and clear
of all tenants or occupants, except under the Lease.
10. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants to Buyer, as of the Effective Date and again as of Close of Escrow, and
agrees (with the understanding that Buyer is relying on these warranties,
representations, and covenants) as follows:
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10.1. AUTHORITY. Seller has full power and authority to execute,
deliver and perform under this Agreement as well as the documents,
specimens of which are attached as Exhibits to this Agreement.
10.2. LITIGATION. Except for the East Washington Issues described in
Section 7.6 above, to Seller's actual knowledge, there are no claims,
actions, suits or other proceedings pending or threatened by any
governmental department or agency or any other corporation, partnership,
entity, or person whomsoever, nor any voluntary actions or proceedings
contemplated by Seller, which in any manner or to any extent may
detrimentally affect Buyer's right, title or interest in and to the
Property or the value of the Property or Seller's ability to perform
Seller's obligations under this Agreement and there is no circumstance
which should or could reasonably form the basis for any such action or
proceeding.
10.3. TITLE. Seller owns the Property in fee simple absolute. Seller
has not authorized work to be performed at the Property and to Seller's
actual knowledge no such work has been performed or is in progress and no
materials have been furnished to the Property which might give rise to
mechanic's, materialman's or other liens against any part of the Property.
Seller has not entered into any, and, to Seller's actual knowledge, there
are not any, contracts or other obligations outstanding for the sale,
exchange or transfer of all or any part of the Property. Seller will not at
any time prior to Close of Escrow grant to any third party an interest in
the Property; and there are no unrecorded leases, liens or encumbrances
which may affect title to the Property except the Lease. All bills or other
charges, costs or expenses arising out of or in connection with or
resulting from Seller's use, ownership or operation of the Property up to
Close of Escrow shall be paid in full by Seller.
10.4. CONDEMNATION. To Seller's actual knowledge, there is no pending
or threatened condemnation or similar proceeding affecting all or any part
of the Property, and Seller has not received any notice of any such
proceeding and has no actual knowledge that any such proceeding is
contemplated.
10.5. NO VIOLATION OF LAWS. Seller is not prohibited from consummating
the transactions contemplated by this Agreement by any law, regulation,
agreement, instrument, restriction, order or judgment. To Seller's actual
knowledge there are no violations of laws, rules, regulations, ordinances,
codes, covenants, conditions, restrictions, instructions, requirements or
agreements applicable to the Property. Seller has not received notices from
any insurance companies, governmental agencies or any other corporation,
partnership, entity or person having jurisdiction with respect to
violations and if any such notices of violations are received prior to
Close of Escrow, Seller shall immediately submit copies to Buyer and
Buyer's review and acceptance shall be a condition precedent to Close of
Escrow.
10.6. ADVERSE POSSESSION. To Seller's actual knowledge and except as
set forth in the Report and the Lease: (i) there are no persons in adverse
possession of the Property; (ii) there are no persons in possession of the
Property except Seller; and (iii) no person has been granted any license,
lease or other right relating to the use or possession of the Property.
8
10.7. INSOLVENCY. There are no attachments, executions, assignments
for the benefit of creditors, receiverships, conservatorships or voluntary
or involuntary proceedings in bankruptcy or pursuant to any other laws for
relief of debtors contemplated or filed by Seller or pending against Seller
or affecting or involving the Property. To Seller's actual knowledge, there
is no special assessment pending against the Property by any governmental
agency.
10.8. ABSENCE OF DEFAULTS. To Seller's actual knowledge, there is no
default, nor has any event occurred which, with the passage of time or the
giving of notice or both, would constitute a default, in any contract,
mortgage, deed of trust, lease or other instrument which relates to the
Property, or which affects the Property in any manner whatsoever. No
consent of any third party is required in order for Seller to enter into,
or for Seller to have authority to perform Seller's obligations under, this
Agreement.
10.9. WATER RIGHTS. Seller will take all actions reasonably necessary
to transfer any water rights with respect to the Property, if any, at
Closing.
10.10. HAZARDOUS MATERIALS. Neither Seller nor, to Seller's actual
knowledge and except for any matter disclosed in any Environmental Study
either delivered pursuant to the terms hereof or generated in connection
with the transactions contemplated hereby, any other person, has ever
caused or permitted any Hazardous Material (as defined below) to be placed,
held, located, or disposed of on, under or at all or any part of the
Property or from all or any part of the Property into the atmosphere or any
watercourse, body of water or wetlands and neither all nor any part of the
Property nor any adjoining real property has ever been used (whether by
Seller or, to the best of Seller's knowledge, by any other person) as a
treatment, storage or disposal (whether permanent or temporary) site for
any Hazardous Material in violation of applicable law. For purposes of this
Agreement, "Hazardous Material" means and includes any petroleum product
and any hazardous substance or any pollutant or contaminant defined as such
in (or for purposes of) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA"); any
so-called "Superfund" or "Superlien" law; the Resource Conservation and
Decay Act of 1976, as amended; or any other federal, state or local
statute, law, ordinance, code, rule, regulation, order, or decree
regulating, relating to or imposing a liability or standards of conduct
concerning petroleum products or any hazardous, toxic, or dangerous waste
petroleum products, substance or material, as now or at any time hereafter
in effect; or asbestos or any substance or compound containing asbestos,
PCB's or any other hazardous, toxic or dangerous waste, substance or
material. To Seller's actual knowledge, the Property does not now contain
any underground tanks.
Seller hereby indemnifies Buyer and agrees to pay, defend and hold
Buyer harmless for, from and against any and all losses, liabilities,
damages, injuries, costs, expenses and claims, of any and every kind
whatsoever, including reasonable attorneys' fee paid, incurred or suffered
by, or asserted against, Buyer for, with respect to, or as a direct or
indirect result of the breach by Seller of the foregoing representation and
warranty.
10.11. EXISTING LEASE. To Seller's actual knowledge, there is no
breach or default under nor does there exist any event or condition which,
after the passage of time, the giving of notice or both, would constitute
9
such a breach or default under any of the Lease. To Seller's actual
knowledge the Lease is a legal, valid and binding obligation of Seller and
Tenant, enforceable in accordance with its terms. Seller and, to Seller's
actual knowledge, Tenant have legal capacity to enter into the transactions
contemplated thereby and to execute and deliver any existing Lease
Documents, all of which have been duly and properly executed by such
parties. Payments under the Lease have been made current through November,
1999 with the next monthly payment in the amount called for by the Lease
due on December 1, 1999. All payments and other obligations due under the
Lease on or prior to the Closing shall be timely paid and performed by
Seller and Tenant.
10.12 NO MODIFICATIONS OR DEFAULTS. The terms of the Lease has not
been, and will not be prior to the Closing, impaired, waived, altered or
modified by Seller in any respect.
10.13. NO FUTURE ALTERATIONS. Except as may be undertaken by Tenant
pursuant to the terms of the Lease, between the Effective Date and the
Closing Date, Seller shall not make or authorize to be made any major or
substantial modifications of, or alterations to, all or any portion of the
Property and shall maintain the Property in substantially the same
condition it is in as of the Effective Date.
10.14. CONCERNING REPRESENTATIONS. Notwithstanding the foregoing
provisions of this Article 10: (i) if Purchaser learns of any actual or
alleged inaccuracy in Seller's representations or warranties after the
Effective Date and prior to the Closing Date, Purchaser shall promptly
notify Seller of such inaccuracy; and (ii) if Seller learns of any actual
or alleged inaccuracy in such representations or warranties, Seller shall
advise Purchaser of such inaccuracy. Seller shall, on or before the date 10
days after receiving such written notice from Purchaser or of learning of
such actual or alleged material inaccuracy make commercially reasonable
efforts, without cost or expense to Seller, to cure such inaccuracy and if
the Closing Date is scheduled before the expiration of such 10 day period,
the Closing Date shall be extended accordingly. Failing such cure by
Seller, Seller shall, within the period described in the preceding
sentence, notify Purchaser in writing of such failure to cure, and
Purchaser's sole and exclusive remedy in such event shall be to elect, on
or before the date 5 business days after receiving such written notice from
Seller, to either: (y) waive such breach and proceed to consummate the
Closing of the Property as contemplated by this Agreement without reduction
of the Purchase Price; or (z) terminate this Agreement, whereupon the
Escrow Agent shall return to Purchaser the Deposit and all interest accrued
thereon, and neither Party will have any further rights or obligations
regarding this Agreement or the Property except for any obligations which
are to expressly survive the termination of this Agreement. If Purchaser
proceeds to Closing, without exercising the right of termination set froth
above, each Seller's Representative shall be deemed automatically amended
to conform with the knowledge of Purchaser as of the Closing Date, and
Seller shall have no liability whatsoever for such previously inaccurate
Seller's Representation. For the purposes of this Agreement, Purchaser
shall be deemed to have knowledge of any fact or circumstance set forth in
the Estoppel Certificate delivered to Purchaser and in any environmental
assessment or other report received by Purchaser, and Seller's
Representations shall be deemed automatically modified to the extent
information contained in the Estoppel Certificate or in any environmental
assessment or other report received by Purchaser prior to the Closing is
inconsistent with the matters covered in this Agreement.
10
Except as expressly represented or warranted by Seller in this
Agreement or in the documents executed and delivered by Seller at the
Closing (collectively, the "Seller's Representations"), Purchaser
acknowledges that neither Seller nor any agent, officer, employee, servant
or representative of Seller has made any statement or representation
(whether oral or in writing) regarding the subject matter or any fact of
this transaction, including, without limiting the generality of the
foregoing, any statement or representation as to the physical nature or
condition of the Property, soil and subsoil conditions, surface water,
underground water, the Property's feasibility for any particular purpose,
development, use, improvement or operation, or any other matter or thing
affecting or related to the Property or any future use implementation,
development, enjoyment or operation of the Property. Purchaser agrees that
Purchaser, in executing, delivering and/or performing this Agreement, has
not and does not rely upon, and that Seller is not liable or bound in any
manner by, any express or implied warranty (including any warranty as to
the Property's condition and fitness for a particular use or purpose),
guaranty, promise, statement, representation, assurance, proposal or
information pertaining to the Property or the Property's zoning, potential
use or development, made or furnished by Seller or by any agent, officer,
employee, servant or other person representing or purporting to represent
Seller, except as expressly stated in Seller's Representations, to
whomsoever made or given, directly or indirectly, verbally or in writing.
Except as expressly stated in Seller's Representations, Purchaser accepts
the Property in "as is, where is" condition "with all faults".
Purchaser has requested that Seller furnish Purchaser with certain
studies, reports and other information in Seller's possession with respect
to the Property, including environmental studies and surveys. As an
accommodation to Purchaser, Seller has agreed to furnish to Purchaser such
information; provided, however, Purchaser hereby acknowledges and agrees
that Seller is making absolutely no representations or warranty whatsoever
with respect to any such studies, reports or information provided by Seller
to Purchaser, except as expressly stated in Seller's Representations, but
Seller hereby represents and warrants to Purchaser that Seller has no
knowledge of any inaccuracy in or misrepresentation created by any such
studies, reports or information which would make any of them misleading.
Purchaser acknowledges and agrees that, subject to the terms of this
Agreement, Purchaser shall be required to verify the accuracy and details
of all such studies, reports and information so provided by Seller to
Purchaser in such manner as Purchaser deems appropriate.
The benefits, waivers and releases accruing to Seller under this
Section 10.14 shall accrue not only to Seller, but also to its
shareholders, officers, directors, employees, affiliates and agents.
10.15. MATERIALITY. The provisions of this Section are material and
included as a material portion of the consideration given to Buyer by
Seller in exchange for Buyer's performance under this Agreement.
11. BUYER'S WARRANTIES. Buyer hereby represents to Seller as of the
Effective Date and again as of Close of Escrow that:
11
11.1. AUTHORITY. Buyer has full power and authority to execute,
deliver and perform under this Agreement as well as the documents that are
to be executed by Buyer and are attached as Exhibits to this Agreement.
11.2. LITIGATION. There are no claims, actions, suits or proceedings
pending or, to Buyer's knowledge, overtly threatened against Buyer which
may in any manner whatsoever affect the validity or enforceability of this
Agreement or any of the documents attached as Exhibits that are to be
executed by Buyer.
11.3. ABSENCE OF DEFAULTS. The execution, delivery and performance of
this Agreement and the other documents, specimens of which are attached as
Exhibits to this Agreement, have not and will not constitute a breach or
default under any other agreement, law or court order under which Buyer is
a Party or may be bound.
11.4. CONTINUING NOTIFICATION OBLIGATIONS. Should Buyer receive notice
or knowledge of any information regarding any of the matters set forth in
this Section 11 after the Effective Date and prior to Close of Escrow,
Buyer will immediately notify Seller of the same in writing.
12. SURVIVAL. All representations, warranties and indemnifications made in
this Agreement by Seller or Buyer shall survive the cancellation of this
Agreement or the Close of Escrow during the period of the applicable statute of
limitations.
13. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
13.1. BROKERS. The Parties warrant to one another that they have not
dealt with any finder, broker or realtor in connection with this Agreement,
except Xxxxx & Xxxxx, Attention: Xxxxx Xxx ("Broker"). The parties
understand that Broker has represented both of their interests. Seller
shall pay to Broker an 8% commission due Broker. If Broker is to be paid
through Escrow at Close of Escrow such agreements shall be deposited in
Escrow on or before Close of Escrow. If, but only if, Escrow closes, Seller
shall pay from Seller's proceeds the commission to Broker and Escrow Agent
is hereby directed to make payment to Broker, at Close of Escrow, on behalf
of Seller. If Escrow does not close for any reason, Broker (including any
broker, finder, agent or person claiming by or through Broker) shall not be
entitled to any commission, fee or deposit. Broker shall have no claim to
forfeited Xxxxxxx Money, if any. By execution of this Agreement, Broker
agrees to and shall be bound by the terms of this Section, and the
commissions shall be the only compensation to which Broker is entitled for
services rendered in connection with the sale of the Property. Buyer is to
have no obligation to the Broker for any amounts now or hereafter alleged
to be due the Broker in regard to any matters arising under this Agreement.
Seller acknowledges that Xx. Xxx, a licensed real estate broker/salesperson
in the State of Arizona, is also an Officer/Director of one or both of the
entities constituting "Buyer" hereunder, but that Xx. Xxx does not have a
pecuniary interest in the transaction, except for his interest in and to
the brokerage commission described above.
12
13.2. INDEMNIFICATION FOR COMMISSION. If any person shall assert a
claim to a finder's fee or brokerage commission on account of alleged
employment as a finder or broker in connection with the Purchase
Transaction, the Party under whom the finder or broker is claiming shall
indemnify and hold the other Parties harmless from and against any such
claim and all costs, expenses and liabilities incurred in connection with
such claim or any action or proceeding brought on such claim, including,
but not limited to, counsel and witness fees and court costs in defending
against such claims.
13.3. SURVIVAL. The provisions of this Section 13 shall survive
cancellation of this Agreement or Close of Escrow.
14. WATER RIGHTS. At Close of Escrow, Seller shall, by execution and
delivery of the Deed and without further act, be deemed to have assigned,
transferred, conveyed and set over unto Buyer the grandfathered water rights, if
any, with respect to the Property, and Seller agrees, if so requested by Buyer,
to make, execute and deliver an assignment of or deed to such rights in such
form as Buyer may reasonably require at or after Close of Escrow to evidence the
same.
15. NOMINEE AND RIGHT OF TRANSFER; 1031 EXCHANGE. Buyer shall have the
right to substitute another person ("Substituted Buyer") in lieu of Buyer by
giving written notice prior to Closing to Seller and Escrow Agent of the name,
address and telephone number of the Substituted Buyer. Such Substituted Buyer
shall also have an unlimited right of nomination and renomination under this
Section. Upon nomination of a Substituted Buyer in accordance with this Section,
all of the rights and obligations of the Buyer (or any prior Substituted Buyer)
in and under this Agreement shall become the rights and obligations of the
Substituted Buyer, however, Buyer (or the prior Substituted Buyer) shall not be
released from any of its obligations under this Agreement. All references in
this Agreement to "Buyer" shall mean and refer to the last Substituted Buyer.
The Substituted Buyer shall be bound by all of the time limits set forth in this
Agreement and no such substitution shall constitute cause for any extension of
any time limit set forth in this Agreement. However, Seller shall not be obliged
to take title to any other real property, Seller makes no representations as to
the tax effects of any such transaction, if any, Buyer shall indemnify and hold
harmless Seller from any cost, claim or damage arising out of said transaction
and said transaction shall not otherwise delay Closing.
Without limiting the generality of the foregoing, Seller understands that
Buyer is acquiring the Property as its replacement property pursuant to a
tax-deferred exchange in accordance with the provisions of ss. 1031 of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder
("Section 1031"). Seller agrees to fully cooperate with Buyer in connection with
such exchange. In this regard, Buyer shall have the right to substitute any
person designated by Buyer as a Substituted Buyer in lieu of Buyer by giving
written notice prior to Closing to Seller and Escrow Agent of the name, address
and telephone number of the Substituted Buyer. Such Substituted Buyer shall also
have an unlimited right of nomination and renomination under this Section.
Seller agrees to cooperate with Buyer and to sign all documents necessary for
Buyer to acquire the Property as its replacement property under Section 1031 and
will accept an assignment of this Agreement to the exchange intermediary for
such purpose. Seller's compliance with this Section shall be at no additional
cost, liability or delay to Seller.
13
16. RISK OF LOSS. Seller shall bear all risk of loss, damage or taking (by
condemnation or sale in lieu of condemnation) of all or any part of the Property
which may occur prior to Close of Escrow. In the event of any loss, damage or
taking prior to Close of Escrow, Buyer may, at Buyer's sole option, by written
notice to Seller and Escrow Agent, cancel this Agreement whereupon the Xxxxxxx
Money plus all interest accrued thereon shall be paid immediately by Escrow
Agent to Buyer and, except as otherwise provided in this Agreement, none of the
Parties shall have any further liability or obligation under this Agreement. In
the alternative Buyer may attempt to negotiate an appropriate downward
adjustment of the Purchase Price. If Seller and Buyer cannot agree upon such a
downward adjustment within a reasonable period (not to exceed 10 days from the
date Buyer receives notice of the loss and the Closing Date shall be extended to
the extent necessary if the Closing Date is scheduled prior to the expiration of
such 10 day period) Buyer may cancel this Agreement as provided above. If Buyer
waives any such loss or damage to the Property and closes Escrow, Seller shall
at Close of Escrow and as a condition precedent to the Closing, pay Buyer or
credit Buyer against the Additional Funds the amount of any insurance or
condemnation proceeds, in an amount which shall not exceed the Purchase Price,
or assign to Buyer, as of Close of Escrow and in a form acceptable to Buyer, all
rights or claims for relief to the same. If Buyer does not cancel this Agreement
in the case of a condemnation, Seller shall not do or forebear to do any acts in
any condemnation action which will materially and adversely affect the outcome
of such action without consulting with, and obtaining the written consent of,
Buyer prior to Close of Escrow. For purposes of this Agreement, the Property
shall be deemed the subject of a condemnation action as of the date of issuance
of a summons in connection with the filing of a complaint in eminent domain (or
similar filing) by any condemning authority or statutorily authorized
non-governmental condemnor.
17. [RESERVED]
18. REMEDIES.
18.1. SELLER'S BREACH. If Seller breached this Agreement, Buyer, at
Buyer's sole option, may either: (i) by written notice to Seller, and
Escrow Agent, cancel this Agreement whereupon the Xxxxxxx Money plus all
interest accrued thereon shall be paid immediately by Escrow Agent to Buyer
and, except as otherwise provided in this Agreement, neither of the Parties
shall have any further liability or obligation under this Agreement; (ii)
seek specific performance against Seller in which event Close of Escrow
shall be automatically extended as necessary, or (iii) if and only if
specific performance is not otherwise available, pursue an action for
damages against Seller, but in no event shall Buyer's damages exceed
$50,000.00 unless Seller's breach is willful or intentional. In no event
shall the foregoing effect Buyer's right to obtain attorneys' fees in any
such action if Buyer is the prevailing party therein.
18.2. BUYER'S BREACH. If Buyer breaches this Agreement, as Seller's
sole remedy, Seller shall be entitled to retain the Xxxxxxx Money in
accordance with Section 5.2 above as Seller's agreed and total liquidated
damages. Seller hereby waives any right to seek any equitable or legal
remedies against Buyer.
14
19. GENERAL PROVISIONS.
19.1. ATTORNEYS' FEES. If there is any litigation to enforce any
provisions or rights arising under this Agreement in accordance with
Section 18.1 above, the unsuccessful Party in such litigation, as
determined by the court, agrees to pay the successful Party, as determined
by the court, all costs and expenses, including, but not limited to,
reasonable attorneys' fees incurred by the successful Party, such fees to
be determined by the court.
19.2.NOTICES.
19.2.1 ADDRESSES. Except as otherwise required by law, any notice
required or permitted hereunder shall be in writing and shall be given by
personal delivery, or by deposit in the United States mail, certified or
registered, return receipt requested, postage prepaid, addressed to the
Parties at the addresses set forth below, or at such other address as a
Party may designate in writing pursuant to the terms of this Section, or
tested telex, or telegram, or telecopies, or any express or overnight
delivery service [E.G. Federal Express], delivery charges prepaid:
If to Buyer: Foot Creek Corporation of Arizona
Grandilla (Arizona), Inc.
c/o Xxxxx Xxx
Xxxxx & Xxxxx
0000 X. Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to: Mariscal, Weeks, XxXxxxxx & Xxxxxxxxxxx, P.A.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to Seller: Stratford American Car Rental Systems, Inc.
Attn: Messrs. Xxxxx Xxxxx & Xxx Xxxxxx
0000 X. Xxxxxxx Xxxxxxxx Xxxxxx
Building 2, Ste. 1270
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
15
With a copy to: Xxxxxx Xxxxxxx, Esq.
Xxxxxxxxx Xxxxx PC
0000 X. Xxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Telephone (000) 000-0000
Fax (000) 000-0000
If to Escrow Agent: Fidelity National Title Insurance Company
Attention: Xxxxxx XxXxxx
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone (000) 000-0000
Fax (000) 000-0000
19.2.2 EFFECTIVE DATE OF NOTICES. Notice shall be deemed to have been
given on the date on which notice is delivered, if notice is given by
personal delivery, telegrams or telecopies, and on the date of deposit in
the mail, if mailed or deposited with the overnight carrier, if used.
Notice shall be deemed to have been received on the date on which the
notice is received, if notice is given by personal delivery telegram or
telecopy, and on the 2nd day following deposit in the mail, if notice is
mailed. If Escrow has opened, a copy of any notice given to a Party shall
also be given to Escrow Agent by regular mail or by any other method
provided for in this Section.
19.3. ESCROW INSTRUCTIONS. This Agreement, when deposited with Escrow
Agent, shall constitute instructions to Escrow Agent, as escrow agent, for
the consummation of the Purchase Transaction. Attached as EXHIBIT D is
Escrow Agent's printed form conditions of escrow which, together with this
Agreement, shall constitute all of the instructions to Escrow Agent with
respect to the Purchase Transaction. It is provided, however, that in the
event of a conflict between Escrow Agent's printed form conditions of
Escrow and the terms and conditions of this Agreement, the terms and
conditions of this Agreement shall prevail. Without limiting the generality
of the foregoing, in no event shall Escrow Agent be indemnified or held
harmless for any liability or claim arising from its own negligence or its
own intentional misconduct or act of malfeasance and the so-called "13-day
notice" provision, if any, in the Escrow Instructions is hereby deleted.
19.4. ESCROW CANCELLATION CHARGES. If Escrow fails to close because of
Seller's default, Seller shall be liable for any cancellation of Escrow
Agent charges. If Escrow fails to close because of Buyer's default, Buyer
shall be liable for any cancellation charges of Escrow Agent. If Escrow
fails to close for any other reason, Seller and Buyer shall each be liable
for one-half of any cancellation charges of Escrow Agent.
19.5. APPROVALS. Concerning all matters in this Agreement requiring
the consent or approval of any Party or as a condition precedent to action
by any of the Parties, the Parties agree that any such consent to each
approval shall not be unreasonably withheld unless otherwise provided in
this Agreement.
16
19.6. FURTHER INSTRUMENTS AND DOCUMENTS. Each Party shall, promptly
upon the request of the other Party or Escrow Agent, execute, acknowledge
and deliver to the other Party or Escrow Agent any and all further
documents, instruments, instructions and assurances reasonably requested or
appropriate to evidence or give effect to the provisions of this Agreement,
to consummate the transactions contemplated by this Agreement or to satisfy
Escrow Agent's requirements.
19.7. GOVERNING LAW; CHOICE OF FORUM. This Agreement shall be deemed
to be made under, shall be construed in accordance with, and shall be
governed by the internal, substantive laws of the State of Arizona (without
reference to choice of law principles). Any action brought to interpret,
enforce or construe any provision of this Agreement shall be commenced and
maintained in the Superior Court of the State of Arizona in and for the
County of Maricopa. The Parties irrevocably consent to jurisdiction and
venue in such courts for such purposes and agree not to seek transfer or
removal of any action commenced in accordance with the terms of this
Section 19.7.
19.8. CONSTRUCTION. The terms and provisions of this Agreement
represent the results of negotiations among the Parties, each of which has
been or has had the opportunity to be represented by counsel of its own
choosing, and neither of which has acted under any duress or compulsion,
whether legal, economic or otherwise. Consequently, the terms and
provisions of this Agreement shall be interpreted and construed in
accordance with their usual and customary meanings, and the Parties each
hereby waive the application of any rule of law which would otherwise be
applicable in connection with the interpretation and construction of this
Agreement that ambiguous or conflicting terms or provisions contained in
this Agreement shall be interpreted or construed against the Party whose
attorney prepared the executed Agreement or any earlier draft of the same.
19.9. TIME OF ESSENCE. Time is of the essence of this Agreement.
However, if this Agreement requires any act to be done or action to be
taken on a date which is a Saturday, Sunday or legal holiday, such act or
action shall be deemed to have been validly done or taken if done or taken
on the next succeeding day which is not a Saturday, Sunday or legal
holiday.
19.10. INTERPRETATION. If there is any specific and direct conflict
between, or any ambiguity resulting from, the terms and provisions of this
Agreement and the terms and provisions of any document, instrument or other
agreement executed in connection with, or in furtherance of the Purchase
Transaction, including any Exhibits to this Agreement, the same shall be
consistently interpreted in such manner as to give effect to the general
purposes and intention as expressed in this Agreement which shall be deemed
to prevail and control.
19.11. HEADINGS AND COUNTERPARTS; FACSIMILE SIGNATURES. The headings
of this Agreement are for reference only and shall not limit or define the
meaning of any provision of this Agreement. This Agreement may be executed
in any number of counterparts and by facsimile signature, all the
counterparts (original or facsimile) shall be deemed to constitute one
instrument and each counterpart shall be deemed an original. If
counterparts (original or facsimile) are employed then, upon Close of
Escrow, Escrow Agent shall assemble all counterpart signature pages into a
17
single document containing all original or facsimile signatures, and this
document shall be delivered to Buyer's counsel with copies of the document
(including all signatures) to be delivered contemporaneously, by Escrow
Agent, to Seller, Seller's counsel and Buyer.
19.12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective successors in
interest and permitted assigns.
19.13. SEVERABILITY. If any provision of this Agreement is declared
void or unenforceable, such provision shall be deemed severed from this
Agreement, and this Agreement shall otherwise remain in full force and
effect.
19.14. EXHIBITS; RECITALS. All Exhibits and Recitals referenced in
this Agreement are incorporated by reference in, and shall constitute a
part of, this Agreement.
19.15. RELATIONSHIP. This Agreement shall not be construed as creating
a joint venture, partnership or any other cooperative or joint arrangement
between Buyer and Seller, and it shall be construed strictly in accordance
with its terms.
19.16. INTEGRATION CLAUSE; NO ORAL MODIFICATION. This Agreement and
the Escrow Instructions represent the entire agreement of the Parties with
respect to its subject matter, and all agreements, oral or written, entered
into prior to this Agreement are revoked and superseded by this Agreement.
This Agreement may not be changed, modified or rescinded, except in
writing, signed by all Parties and any attempt at oral modification of this
Agreement shall be void and of no effect.
19.17. NO ASSUMPTION OF SELLER'S LIABILITIES. Buyer is acquiring only
the Property from Seller and Buyer is not the successor in interest of
Seller. Buyer does not assume, agree to pay, perform or indemnify Seller or
any other person against any liability, obligation or expense of Seller or
relating in any way to the Property except to the extent, if any, expressly
and specifically provided for in this Agreement.
19.18. WAIVER. Buyer is acquiring only the Property from Seller and
Buyer is not the successor in interest of Seller. Failure of any Party to
exercise any right, remedy or option arising out of a breach of this
Agreement shall not be deemed a waiver of any right, remedy or option with
respect to any subsequent or different breach, or the continuance of any
existing breach.
19.19. BINDING AGREEMENT. This Agreement constitutes a binding
agreement between Seller and Buyer for this Purchase Transaction and shall
bind and inure to the benefit of the parties and their respective
successors and assigns. This Agreement supersedes all other written or
verbal agreements between the Parties concerning this Purchase Transaction.
18
IN WITNESS WHEREOF, the Parties have executed this Purchase Agreement
as of the Effective Date.
BUYER: FOOT CREEK CORPORATION OF ARIZONA,
an Arizona corporation
By:
-----------------------------------------
Its:
----------------------------------------
GRANDILLA (ARIZONA), INC., an Arizona
Corporation
By:
-----------------------------------------
Its:
----------------------------------------
SELLER: STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC.,
an Arizona corporation
By:
-----------------------------------------
Its:
----------------------------------------
19
ESCROW AGENT'S ACCEPTANCE
This Agreement is accepted as of this _____ day of ____________ 1999, by
Escrow Agent, which date is deemed to be the date of Opening of Escrow for the
purposes of this Agreement, and Escrow Agent agrees to perform the acts
applicable to Escrow Agent in accordance with the terms of this Agreement.
Escrow Agent acknowledges its receipt of a fully executed original of this
Agreement as of the date set forth above.
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
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Escrow Officer
The undersigned hereby execute this Agreement for the sole purpose of
acknowledging and agreeing to be bound by the terms of Section 13 of the
Agreement.
SELLER'S BROKER:
By:
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Its:
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BUYER'S BROKER: XXXXX & XXXXX
By:
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Its:
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20
LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT A TO
PURCHASE AGREEMENT
When recorded, return to:
Attn: Xxxxx X. Xxx
c/x Xxxxx & Xxxxx
0000 X. Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Escrow No.
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SPECIAL WARRANTY DEED
For the consideration of Ten Dollars, and other valuable consideration,
STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC., an Arizona corporation ("Grantor"),
conveys to FOOT CREEK CORPORATION OF ARIZONA and GRANDILLA (ARIZONA), INC., both
Arizona corporations (collectively, "Grantee"), as equal co-tenants, the
following described real property:
See EXHIBIT A attached to and incorporated in this Special Warranty Deed
by this reference (the "Property").
SUBJECT TO: all taxes and other matters of record, or which an accurate
ALTA/ACSM survey would disclose.
And Grantor hereby binds itself and its successors to warrant and defend
the title, as against all acts of Grantor and no other, subject to the matters
above set forth.
Dated to be effective as of _______________, 1999.
GRANTOR: STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC.,
an Arizona corporation
By:
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Its:
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STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 1999, by _________________________, as _______________ of
STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC., an Arizona corporation, on behalf
of the corporation, for the purposes set forth herein.
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Notary Public
My Commission Expires:
LEGAL DESCRIPTION
EXHIBIT A TO
SPECIAL WARRANTY DEED
NON-FOREIGN AFFIDAVIT
The undersigned, _______________, ___________ of STRATFORD AMERICAN CAR
RENTAL SYSTEMS, INC., an Arizona corporation("Transferor"), after being duly
sworn upon his oath, deposes and says:
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 FOOT CREEK CORPORATION OF ARIZONA and GRANDILLA (ARIZONA),
INC., both Arizona corporations (collectively, "Transferee"), that withholding
of the tax is not required upon the disposition of Transferor's interest in the
real property described on EXHIBIT A attached hereto and by this reference
included herein (the "Property"), the undersigned hereby certifies the
following:
1. Transferor is not a non-resident alien, or a foreign corporation,
foreign partnership, foreign trust, foreign estate or other foreign person
within the meaning of Sections 1445 and 7701 of the Internal Revenue Code and
the treasury regulations promulgated thereunder;
2. Transferor's U.S. taxpayer identification numbers is:
__________________.
3. Transferor's address is: 2400 E. Arizona Biltmore Circle, Building 2,
Ste. 1270 Xxxxxxx, Xxxxxxx 00000.
4. There are no other persons or entities who have an ownership interest in
the Property.
The undersigned understands that this certification may be disclosed to the
Internal Revenue Service by Transferee in connection with the United States
Foreign Investment in Property Tax Act and that any false statement contained in
this Affidavit could be punished by fine, imprisonment or both.
Under penalty of perjury, the undersigned declares that he has examined
this certification and to the best of his knowledge and belief, it is true,
correct and complete.
TRANSFEROR: STRATFORD AMERICAN CAR RENTAL SYSTEMS, INC.,
an Arizona corporation
By:
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Its:
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STATE OF _____________ )
) ss.
County of ______________ )
The foregoing instrument was acknowledged before me this _____ day of
______________, 199___, by _________________, as __________________ of STRATFORD
AMERICAN CAR RENTAL SYSTEMS, INC., an Arizona corporation, on behalf of the
corporation for the purposes set forth herein.
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Notary Public
My Commission Expires:
LEGAL DESCRIPTION
[TO BE SUPPLIED PRIOR TO EXECUTION]
