Exhibit 99.10
CONTRACT TO PURCHASE AND SELL REAL PROPERTY
(CENTURY BMW)
THIS CONTRACT TO PURCHASE AND SELL REAL PROPERTY (the "Purchase
Contract") is made and entered into as of the 10th day of April, 1998, by and
between CENTURY AUTO SALES, INC., a South Carolina corporation ("Century") and
FAIRWAY INVESTMENTS, LLC, a South Carolina limited liability company ("Fairway")
(Century and Fairway are collectively called "Sellers") and SONIC AUTOMOTIVE,
INC., a Delaware ("Buyer").
W I T N E S S E T H:
WHEREAS, Century is the owner of certain real estate located at 2752
Laurens Road, in the City of Greenville, Greenville County, South Carolina, more
particularly described and/or shown on EXHIBIT A attached (the "Century
Property").
WHEREAS, Fairway is the owner of certain real estate located at 2550
Reidville Road, in the City of Spartanburg, Spartanburg County, South Carolina,
more particularly described and/or shown as Tract 2 on EXHIBIT A attached (the
"Fairway Property").
WHEREAS, Sellers desire to sell to Buyer and Buyer desires to acquire
from Sellers the Real Property (defined below) together with the buildings and
improvements (collectively, the "Improvements") thereon and which are presently
utilized in the automobile dealership operations of Century, d/b/a Century BMW
in accordance with the terms and conditions hereinafter set forth in this
Purchase Contract.
NOW, THEREFORE, in consideration of the agreements and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Sellers do hereby
covenant and agree as follows:
1. DEFINITIONS. In addition to the terms defined above, each of the
following terms, when used herein with an initial capital letter, shall
have the meaning ascribed to it as follows, unless such meanings are
expressly modified, limited or expanded elsewhere in this Purchase
Contract.
a. "APPRAISED VALUE" shall, subject to the limitations set forth
as to the Purchase Price below, mean the value obtained by
agreement of two (2) appraisers, one appointed jointly by
Century and Fairway, and one appointed by the Buyer. Both
appraisers shall have at least five (5) years experience
valuing commercial real estate situate in Greenville and
Spartanburg counties of South Carolina. If the two (2)
appraisers cannot agree on an Appraised Value within thirty
(30) days after they have both been selected, the average of
the two appraisals shall be the Appraised Value if the value
established by the respective appraisals do not vary by more
than ten percent (10%). If the value differs by more than ten
percent (10%), the two appraisers shall appoint
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a third appraiser. The third appraiser shall determine the
value of the Real Property within fifteen (15) days of his
appointment. The Appraised Value for purposes of this
Purchase Contract shall be the value as finally agreed upon by
any two of the three appraisers. If two of the three
appraisers do not agree within fifteen (15) days, the
appraisers shall be dismissed and the appraisal process
repeated. Century and Fairway and Buyer shall each pay the
costs of the appraiser appointed by them, and one-half (1/2)
of the cost of the third appraiser. If any party fails to
appoint an appraiser within the time required herein, the
Purchase Price determined by the appraiser appointed by the
other party shall be conclusive and binding upon the parties,
subject to the limitations set forth as to the amount of the
Purchase Price.
b. "ASSET PURCHASE CONTRACT" shall mean that certain Asset
Purchase Agreement dated the date hereof by and among Century,
the stockholders of Century and Buyer.
c. "CLOSING" shall mean the closing and consummation of the
purchase and sale of the Real Property pursuant to this
Purchase Contract.
d. "CLOSING DATE" shall mean the date of the Closing to be held
on (i) the date of the closing under the Asset Purchase
Contract; or (ii) such other date as mutually agreed upon by
the parties hereto.
e. "DEED" shall mean the duly executed and acknowledged general
warranty deed conveying title to the Real Property from
Sellers to Buyer, the form of which is attached hereto as
EXHIBIT C an original of which conveys the Century Property to
be recorded in Greenville County, South Carolina, and an
original of which conveys the Fairway Property to be recorded
in Spartanburg County, South Carolina.
f. "DEFECT" OR "DEFECTS" shall mean a lien, claim, charge,
security interest, encumbrance, easement, restriction or other
such matter affecting title to the Real Property other than
the Permitted Exceptions.
g. "EFFECTIVE DATE" shall mean the later of: (i) the date in the
heading of this Purchase Contract; and (ii) the date which the
last of the parties to this Purchase Contract executes and
delivers this Purchase Contract to the other party.
h. "ENVIRONMENTAL REVIEW PERIOD" shall mean a period of fifteen
(15) business days after receipt of both a Phase I
Environmental Evaluation and/or a Phase II Environmental
Evaluation, as applicable.
i. "ENVIRONMENTAL LAWS" shall mean any applicable current or
future federal, state or local governmental law, regulation or
ruling applicable to environmental conditions on, under or
about the Real Property, including, without limitation,
federal, state or local solid waste disposal rules, the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, The Hazardous Materials
Transportation Act, the Resource Conservation and Recovery
Act, as amended, the Toxic Substances Act, as amended, the
Water Pollution Control Act,
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as amended, or any other applicable federal, state or local
laws, regulations or ordinances.
j. "EVALUATIONS" shall mean a Phase I Environmental Evaluation
and a Phase II Environmental Evaluation of the Real Property
prepared at Buyer's expense by environmental consultant(s)
selected by Buyer.
k. "HAZARDOUS MATERIALS" means any waste, pollutant, chemical,
hazardous substance, toxic substance, hazardous waste, solid
waste, petroleum or petroleum-derived substance or waste, or
any constituent or decomposition product of any such
pollutant, material, substance or waste, regulated under or as
defined by any Environmental Law(s).
l. "IMPROVEMENTS" shall mean all buildings and improvements
constructed upon the Land together with any fixtures or
improvements related thereto.
m. "INSPECTION PERIOD" shall mean and refer to the period
commencing on later of (i) the day following the Effective
Date or (ii) the day following delivery of the materials
referred to in Section 7.a. below, and continuing for fifteen
(15) days thereafter.
n. "LAND" shall mean those certain parcels or tracts of land
owned by Sellers located in or near the City of Greenville and
the City of Spartanburg, South Carolina, as more particularly
described on EXHIBIT A attached hereto and incorporated herein
by reference, together with all and singular the rights and
appurtenances pertaining thereto, including any right, title
and interest of Sellers in and to adjacent streets, easements
or rights-of-way.
o. "OWNER'S TITLE POLICY" shall mean a standard ALTA form owner's
policy of title insurance for the Real Property issued at
standard rates as compared to comparable Real Property in
Greenville and Spartanburg County, South Carolina.
p. "PERMITTED EXCEPTIONS" shall mean all matters described on
EXHIBIT B attached hereto and incorporated herein by
reference.
q. "PURCHASE PRICE" shall mean the Appraised Value of the Real
Property (however, in no event shall the total Purchase Price
exceed Five Million Two Hundred Thousand Dollars
($5,200,000.00) or be less than Four Million Four Hundred
Thousand Dollars ($4,400,000.00) to be paid by Buyer to
Sellers for the Real Property as provided in Paragraph 2
hereof).
r. "REAL PROPERTY" shall mean the Land (including the Century
Property and the Fairway Property) and the Improvements
thereon.
s. "SURVEY" shall mean a current boundary, topographical and/or
physical survey of the Real Property prepared by a South
Carolina Registered Land Surveyor.
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t. "TITLE COMMITMENT" shall mean a current title binder or
commitment issued by the Title Company for an owner.
u. "TITLE COMPANY" shall mean the title insurer of Buyer's
choice.
2. AGREEMENT TO SELL AND PURCHASE. Sellers hereby agree to sell and convey
to Buyer, and Buyer hereby agrees to purchase from Sellers, the Real
Property pursuant to the terms and conditions of this Purchase
Contract.
3. PURCHASE PRICE; DELIVERY OF POSSESSION.
a. The Purchase Price shall be paid to Sellers in immediately
available funds at Closing, subject to the terms and
conditions of this Purchase Contract.
b. Sellers shall deliver sole possession of the Real Property to
Buyer at Closing.
4. CONVEYANCE OF TITLE. At Closing, Sellers shall by the Deed convey to
Buyer marketable fee simple title to all of the Real Property, free and
clear of any and all liens, encumbrances, easements, assessments,
restrictions, taxes and other conditions except for the Permitted
Exceptions.
5. SURVEY. Buyer, at Buyer's sole cost and expense, prior to Closing may,
at its election, obtain the Survey from which a legal description of
the Real Property will be prepared and inserted in the Deed. Buyer, its
employees and agents may, at any reasonable time prior to Closing,
enter upon the Real Property for the purpose of obtaining the Survey.
6. TITLE AND TITLE INSURANCE FOR THE REAL PROPERTY.
a. Prior to the Closing Date, Buyer shall, at its sole cost and
expense, obtain an owner's Title Commitment issued by the
Title Company providing for the issuance at Closing to Buyer
of an Owner's Title Policy for the Real Property. The Title
Commitment shall set forth the state of title of the Real
Property and all exceptions, including but not limited to,
easements, restrictions, road rights-of-way, floodways,
covenants, reservations and other conditions, if any,
affecting the Real Property which would appear in an Owner's
Title Policy if issued.
b. At Closing, the Real Property shall be conveyed to Buyer by
the Deed free and clear of all Defects and subject only to the
Permitted Exceptions.
7. INSPECTIONS.
a. On or prior to the Effective Date or within three (3) days
thereafter, Sellers shall provide to Buyer true, correct and
complete copies of the following items:
i. Sellers' existing owner's and lender's title insurance
policies for the Real Property (if any) together with
legible copies of any exceptions set forth therein.
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ii. The most recently dated existing surveys of the Real
Property.
iii. Any and all engineering reports, soil reports and
environmental reports prepared by or for Sellers with
respect to the Real Property, if any.
iv. All warranties, if any, related to the Improvements.
v. Attorneys' opinions, if any, on title to the Real
Property and legible copies of deeds, mortgages,
easements or restrictions, if any, affecting Property
which Sellers may possess.
b. Buyer, its agents and contractors shall be entitled to go upon
the Real Property during the Inspection Period to obtain
financing, to inspect the Real Property to perform
investigations, to determine the status of utilities thereon,
to conduct title examinations, zoning investigations,
feasibility studies and other studies or tests necessary to
determine whether the Real Property is suitable for Buyer's
intended use of the Real Property. If Buyer determines, in
Buyer's reasonable discretion, that the Real Property is not
suitable for Buyer's intended use, Buyer may terminate this
Contract and shall be relieved of all obligations hereunder by
giving written notice to Sellers prior to the end of the
Inspection Period. However, Buyer does not waive its right to
terminate this Contract, as set forth above, based on any
restriction which may adversely affect the Real Property that
has been revealed through documentation and/or other due
diligence material in Buyer's possession prior to the
execution of this Contract.
c. Buyer may, at its sole expense, commission the Evaluations.
The Evaluations shall be conducted in accordance with such
standards and procedures as selected by Buyer and Buyer's
consultant, and may include, without limitation, drilling and
installation of ground water testing wells at locations
specified by Buyer's consultant, soil samples at locations
designated to detect environmental conditions and/or impacts
from current or past operations, both ground water and soil
analysis and investigation as to the presence of any asbestos
materials on the Real Property. If, based upon the
Evaluations, Buyer determines, in Buyer's reasonable
discretion, that the Real Property is not free of Hazardous
Materials, and that such Hazardous Materials materially
adversely affect Buyer's intended use of the Real Property for
the operation of an automobile dealership, or the value of the
Real Property, then Buyer may terminate this Purchase Contract
by notice in writing given to Sellers prior to the expiration
of the Environmental Review Period and the parties shall have
no further rights or obligations under this Purchase Contract.
If the Buyer chooses to terminate this Purchase Contract as a
result of its review of the Evaluations, Buyer shall provide
to Sellers copies of all environmental reports relating to the
Real Property which may be obtained by Buyer, and shall repair
any damage to the Real Property resulting from the
Evaluations.
d. In addition to Buyer's rights set forth in PARAGRAPH 7(C)
above, in the event that any underground storage tanks or any
other storage tanks are or have been located upon any portion
of the Real Property, Sellers, at their sole expense, shall:
i. Remove any such tanks which remain on the Real Property;
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ii. Remediate any current or former tank sites and any
surrounding portion of the Real Property and any
adjacent property to the reasonable satisfaction of
Buyer and Buyer's consultant.
Notwithstanding the termination of the Inspection Period or
the Environmental Review Period, if Buyer reasonably
determines that Sellers have failed to meet its obligations
described in this PARAGRAPH 7(D), then Buyer may either:
iii. Terminate this Purchase Contract; or
iv. Remediate any such tank site(s) to the reasonable
satisfaction of Buyer and Buyer's consultant and deduct
the cost of any such remediation from the Purchase
Price. In the event such remediation shall extend beyond
the Closing Date set forth herein, Buyer shall have the
option of extending the Closing Date to such time as may
be necessary to complete any such remediation.
8. COSTS AND PRORATIONS. Sellers shall pay the cost to cancel any mortgage
or other lien of record. Buyer shall pay any and all documentary stamp
taxes, deed taxes or transfer taxes applicable to this transaction and
any and all costs of the Survey, the title examination, the title
insurance premiums, testing or inspections of the Real Property and
recording costs for the Deed or any other documents to be recorded
relating to the transfer of the Real Property. Each party shall pay its
own attorney's fees. Sellers shall pay any "roll-back" taxes or similar
taxes based upon any change in use of the Real Property, whether such
taxes are assessed before or after Closing. Sellers' obligation to pay
such taxes, if any, shall survive Closing. All prorations for real
estate taxes, utilities and other such costs shall be prorated between
Buyer and Sellers as of the Closing Date on the basis of a 365-day
year. Buyer and Sellers hereby agree that if any of the aforesaid
prorations cannot be calculated accurately on the proration date (or as
soon as information sufficient to complete such prorations is
available), then the same shall be calculated within thirty (30) days
after the information necessary to make such prorations becomes
available and either party owing the other party a sum of money based
on such subsequent proration(s) shall promptly pay said sum to the
other party.
9. RISK OF LOSS; EMINENT DOMAIN.
a. If, after the Effective Date and prior to the Closing Date,
the Real Property or any portion thereof is damaged or
destroyed, Sellers shall immediately notify Buyer in writing
and Buyer shall elect, within ten (10) days from and after
such notice, by written notice to Sellers, either:
i. to not close the transaction contemplated hereby, in
which event the Purchase Contract shall be void and of
no further force and effect; provided, however, Buyer
shall not be entitled to elect under this item i. unless
Buyer determines, in its reasonable judgment, that such
damage or destruction cannot be restored within ninety
(90) days; or
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ii. to close the transaction contemplated hereby in
accordance with the terms and conditions contained
herein, in which event the Purchase Price shall remain
the same and Sellers shall transfer and assign to Buyer
at Closing all rights, title and interest to any
insurance proceeds payable in connection with such
damage or destruction. If Buyer elects to purchase the
Real Property after receipt of such notice from Sellers,
all actions taken by Sellers with regard to the repair
or replacement of any such damaged or destroyed portion
of the Real Property, including but not limited to,
negotiations, litigation, settlement, appraisals and
appeals, shall be subject to the approval of Buyer,
which approval shall not be unreasonably withheld. In no
event shall Buyer have any responsibility to repair or
rebuild the Improvements.
b. If, after the Effective Date and prior to the Closing Date,
Sellers shall receive notice of the commencement or threatened
commencement of eminent domain or other like proceedings
against the Real Property or any portion thereof, Sellers
shall immediately notify Buyer in writing, and Buyer shall
elect, within ten (10) days from and after such notice of such
threatened or pending proceedings, by written notice to
Sellers, either:
i. to not close the transaction contemplated hereby, in
which event this Purchase Contract shall be void and of
no further force and effect; provided, however, Buyer
shall not be entitled to elect under this item i. unless
more than 5% of the Real Property is taken and such
taking materially interferes with the operation of an
automobile dealership business substantially as operated
before such taking; or
ii. to close the transaction contemplated hereby in
accordance with the terms and conditions contained
herein, but subject to such proceedings, in which event
the Purchase Price shall remain the same and Sellers
shall transfer and assign to Buyer at Closing all
rights, title and interests to the proceeds of such
eminent domain proceedings. If Buyer elects to purchase
the Real Property after receipt of such notice, all
actions taken by Sellers with regard to such eminent
domain or like proceedings, including but not limited
to, negotiations, litigation, settlement, appraisals and
appeals, shall be subject to the approval of Buyer,
which approval shall not be unreasonably withheld. In no
event shall Buyer have any responsibility to repair or
rebuild the Improvements.
10. NOTICE. Each notice required or permitted to be given hereunder shall
be in writing and shall comply with the requirements of this paragraph.
Any notice by Buyer to Sellers shall be deemed to be duly given if: (a)
either (i) hand delivered to the person(s) listed below for Sellers, or
(ii) delivered or sent by telephone facsimile transmittal to the
facsimile telephone numbers of Sellers listed below, in which event
proof of delivery shall be by telephone records, and (b) a duplicate of
such notice shall be sent by registered or certified mail to Sellers at
the addresses set forth below (or at such other address as may
hereafter be designated by Sellers). Any notice by Sellers to Buyer
shall be deemed to be duly given if:
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(a) either (i) hand delivered to the person(s) listed below for Buyer,
or (ii) delivered or sent by telephone facsimile transmittal to the
facsimile telephone number of Buyer listed below, in which event proof
of delivery shall be by telephone records, and (b) a duplicate of such
notice shall be sent by registered or certified mail to Buyer at the
address set forth below (or at such other address as may hereafter be
designated by Buyer). Notice shall be deemed effective at the time of
hand delivery or transmission of the telephone facsimile and upon
deposit of the notice in the United States Mail for registered or
certified delivery. The parties hereto reserve the right to change the
addresses or telephone numbers to which notices are to be sent by
giving notice to the other as herein provided.
The addresses and facsimile telephone numbers of the parties to which
notices are to be sent shall be those set forth below:
As to Buyer:
Sonic Automotive, Inc.
5401 E. Independence Boulevard
Charlotte, North Carolina 28212
Attention: Chief Financial Officer
Telecopy No.: (704) 536-5116
With a Copy to:
Edward W. Wellman, Esq.
Parker, Poe, Adams & Bernstein L.L.P.
2500 Charlotte Plaza
Charlotte, North Carolina 28244
Telecopy No.: (704) 334-4706
As to Sellers:
Fairway Investments, L.L.C.
2323 Laurens Road
Greenville, SC 29607
Attention: A. Foster McKissick, III
Telecopy No.: (864) 242-3222
With a Copy to:
Harvey G. Sanders, Jr., Esq.
Leatherwood Walker Todd & Mann, P.C.
100 East Coffee Street
Greenville, SC 29602-0087
Telecopy No.: 864-240-2478
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Any party shall have the right from time to time to change the
address to which notices to it shall be sent by giving to the other party or
parties at least five (5) days prior notice of the changed address.
11. CLOSING. Unless Buyer or Sellers have otherwise elected hereunder to
terminate this Purchase Contract, and subject to the satisfaction or
written waiver of each of the conditions precedent to Closing set forth
in PARAGRAPH 12 hereof, the Closing of the sale and purchase of the
Real Property shall be held at a mutually agreeable time on the Closing
Date, at the offices of Leatherwood Walker Todd & Mann, P.C. at 9:00
a.m.
12. CONDITIONS PRECEDENT TO CLOSING.
a. Buyer's Conditions. Buyer's obligation to close the purchase
of the Real Property is subject to the satisfactory
performance, occurrence or written waiver by Buyer, in Buyer's
sole discretion, of each of the following conditions:
i. Sellers shall have delivered to Buyer all of the
documents, properly executed, as required by PARAGRAPH
13(A) hereof;
ii. No adverse change in the status of the title to the Real
Property as set forth in the Title Commitment shall have
occurred prior to the Closing Date;
iii. No default by Sellers shall exist under this Purchase
Contract, this Purchase Contract shall not have
terminated and Sellers shall be ready, willing and able
to close under the terms hereof;
iv. The representations of Sellers contained in this
Purchase Contract shall be true, complete and correct in
all material respects as of the Closing Date, without
the necessity of any material amendment or modification,
with the same force and effect as if made as of the
Closing Date;
v. The Inspection Period and Evaluation Review Period shall
have expired;
vi. Sellers' obligations pursuant to PARAGRAPH 7(D) shall
have been met;
vii. Buyer's confirmation, by a Phase I environmental
inspection performed at Buyer's expense, and by a Phase
II inspection if Buyer deems such inspection necessary,
that the properties are free of environmentally
hazardous or toxic substances that would materially
adversely affect Buyer's use and possession of the
respective properties for the operation of an automobile
dealership, or the value of the Real Property;
viii. Buyer's confirmation that as of the Closing Date there
will be no contracts, leases or liabilities which will
affect Buyer's ownership of the Real Property or right
to use and possession thereof;
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ix. Buyer's confirmation that both the Century Property and
the Fairway Property are properly zoned for use as an
automobile dealership;
x. Buyer's confirmation that both the Century Property and
the Fairway Property are free and clear of mortgages,
security agreements or other encumbrances; other than
any Permitted Exception shown on Exhibit B;
xi. Receipt by Buyer of all required waivers or approvals to
Buyer's acquisition of the Real Property and approval by
BMW of North America for Buyer's operation of a
franchised BMW dealership on each of the Century
Property and the Fairway Property;
xii. All required consents and approvals of the shareholders
and directors of Century and all required consents and
approvals of the members of Fairway shall have been
obtained and provided to Buyer;
xiii. All conditions to Buyer's obligations at closing under
the Asset Purchase Contract shall have been fully
satisfied, unless waived in writing by Buyer; and
xiv. The closing of the Century Property by Buyer and the
closing of the Fairway Property by Buyer are each a
condition to the other closing.
If any of the foregoing conditions have not been satisfied or
waived within the times and in the manner required by this
Purchase Contract, Buyer may terminate this Purchase Contract
and seek any remedies available at law or equity, including
without limitation, specific performance.
b. Sellers' Conditions. Sellers' obligation to close the sale of
the Real Property is subject to the satisfactory performance,
occurrence or written waiver by Sellers, in Sellers' sole
discretion, of each of the following conditions:
i. Buyer shall pay the Purchase Price to Sellers and shall
have delivered to Sellers all of the documents, properly
executed, as required by PARAGRAPH 13(B) hereof;
ii. No default by Buyer shall exist under this Purchase
Contract, this Purchase Contract shall not have been
terminated, and Buyer shall be ready, willing and able
to close under the terms hereof;
iii. The representations of Buyer contained in this Purchase
Contract shall be true, complete and correct in all
material respects as of the Closing Date, without the
necessity of any material amendment or modification,
with the same force and effect as if made as of the
Closing Date;
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iv. All conditions to Century's obligations at closing under
the Asset Purchase Contract shall have been fully
satisfied unless waived in writing by Century;
v. The closing of the Century Property by Century and the
closing of the Fairway Property by Fairway are each a
condition to the other closing.
If any of the foregoing conditions have not been satisfied or
waived within the times and in the manner required by this
Purchase Contract, Sellers may terminate this Purchase
Contract and seek any remedies which are available at law or
equity, including, without limitation, specific performance;
provided, however, in the event of payment by Buyer of the
"Buyer's Termination Fee" under the Asset Purchase Contract,
neither of the Sellers shall have any right to any other
damages or relief of any kind or nature, whether at law or in
equity (including, without limitation, specific performance).
13. DOCUMENTS AT CLOSING.
a. Sellers' Documents. Sellers shall execute and/or deliver the
following to Buyer at Closing:
i. The Deed, duly executed by Sellers and acknowledged.
ii. A lien affidavit, duly executed by Sellers, acceptable
to the Title Company.
iii. Affidavits and other documents, duly executed by
Sellers, to satisfy federal, state and local tax
reporting and withholding requirements.
iv. An affidavit, duly executed by Sellers that Sellers are
not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code.
v. A certificate, duly executed by Sellers and notarized,
that the representations of Sellers contained in this
Purchase Contract remain true, complete and correct in
all material respects as of the Closing Date.
vi. A settlement statement setting forth the amounts paid by
or on behalf of and/or credited to each of Buyer and
Sellers pursuant to this Purchase Contract.
vii. Such other customary documents and assurances as shall
be reasonably required by Buyer's counsel.
b. Buyer's Documents. Buyer shall pay the Purchase Price to
Sellers at Closing and the Buyer shall execute and/or deliver
the following to Sellers at Closing:
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i. A certificate, duly executed by Buyer and notarized,
that the representations of Buyer contained in this
Purchase Contract remain true, complete and correct in
all material respects as of the Closing Date.
ii. A settlement statement setting forth the amounts paid by
or on behalf of and/or credited to each of Buyer and
Sellers pursuant to this Purchase Contract.
iii. Such other customary documents and assurances as shall
be reasonably required by Sellers' counsel.
14. REPRESENTATIONS AND WARRANTIES.
a. Representations and Warranties by Sellers. Sellers hereby
represent and warrant to Buyer that as of the Effective Date:
i. Sellers have no notice of any pending or threatened
condemnation or similar proceeding or assessment
affecting the Real Property, or any part thereof, nor to
the best of its knowledge, is any such proceeding or
assessment contemplated by any governmental authority,
nor to the best of its knowledge, is there any
litigation pending or threatened which affects or could
affect the Real Property.
ii. Except as set forth on Schedule 14(a)(ii) attached
hereto, (a) except in the ordinary course of business
and in compliance with applicable law, Sellers have not
at any time generated, used, treated or stored Hazardous
Materials on, or transported Hazardous Material to or
from the Real Property or any property adjoining or
adjacent to the Real Property and, to the knowledge of
Sellers, no party other than Sellers have taken such
actions on the Real Property, (b) Sellers have not at
any time released or disposed of Hazardous Materials on
the Real Property or any property adjoining or adjacent
to the Real Property, and to the knowledge of the
Sellers, no party other than Sellers have taken any such
actions on the Real Property, (c) Sellers have not
transported or arranged for the transportation of any
Hazardous Materials to any site other than the Real
Property, (d) Sellers are in compliance with all
Environmental Laws and the requirements of any permits
issued under such Environmental Laws with respect to the
Real Property, except where failure to comply would not
have a material adverse effect on Sellers Real Property,
(e) there are no past, pending or, to the knowledge of
Sellers, threatened environmental claims against Sellers
or the Real Property, (f) to the knowledge of Sellers,
there are no facts or circumstances, conditions or
occurrences regarding the Real Property that could
reasonably be anticipated (A) to form the basis of an
environmental claim against Sellers or (B) to cause the
Real Property to be subject to any restrictions on its
ownership, occupancy, use or transferability under any
Environmental Law, and (g) there
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are not now, and to the knowledge of Sellers, never have
been any underground storage tanks located on the Real
Property.
iii. To the best of Sellers' knowledge, Sellers have complied
in all material respects with all applicable laws,
ordinances, regulations and statutes relating to the
Real Property or any part thereof and is not in
violation of any such laws as they relate to the Real
Property.
iv. This Purchase Contract and all documents executed by
Sellers which are to be delivered to Buyer at Closing
are or at the time of delivery will be duly executed and
delivered by Sellers, and are or at the time of Closing,
will be legal, valid, binding obligations of Sellers,
and do not and at Closing will not violate any
provisions of any agreement or any applicable
governmental law or regulation to which either of the
Sellers are a party or to which Sellers are subject.
v. There are no restrictions or applicable regulations
which prevent the use of the Real Property for
automobile dealership and servicing purposes.
vi. The restrictive covenants encumbering the Real Property
(if any) have not been violated and there are no
assessments owed pursuant to such restrictions.
vii. Other than ad valorem real property taxes, there are no
other taxes or assessments pending or periodically
charged to Sellers with respect to the Real Property.
b. Representations and Warranties by Buyer. Buyer hereby
represents and warrants to Sellers that as of the Effective
Date:
i. Buyer is a duly organized and validly existing
corporation under the laws of the State of Delaware and
is authorized to acquire property in the State of South
Carolina, and Buyer has the power and authority to enter
into this Purchase Contract.
ii. This Purchase Contract and all documents executed by
Buyer which are to be delivered to Sellers at Closing
are or at the time of delivery will be duly authorized,
executed and delivered by Buyer, and are or at the time
of Closing, will be legal, valid, binding obligations of
Buyer, and do not and at Closing will not violate any
provisions of any agreement or any applicable
governmental law or regulation to which Buyer is a party
or to which it is subject.
c. INDEMNITIES.
i. Buyer and Sellers hereby agree that they have relied
upon the representations and warranties given by the
respective parties in PARAGRAPH 14(A) and 14(B)
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of this Purchase Agreement. Buyer hereby agrees to
indemnify and hold Sellers harmless from and against any
and all liabilities, losses, costs, damages, expenses,
including reasonable attorneys' fees and costs of
litigation, arising or resulting from the untruth of any
of Buyer's representations and warranties set forth in
PARAGRAPH 14(B). Sellers, jointly and severally, hereby
indemnify and hold Buyer harmless from and against any
and all liabilities, losses, costs, damages and
expenses, including reasonable attorneys' fees and costs
of litigation, arising or resulting from the untruth of
any of Sellers' representations and warranties set forth
in PARAGRAPH 14(A).
ii. To the extent caused by or resulting from the acts of
Sellers, its agents, servants, employees or contractors,
Sellers agree to immediately clean up any Hazardous
Materials found on or within any portion of the Real
Property and to remediate the Real Property, to comply
with any and all Environmental Laws, and to pay for all
clean up and remediation costs at no cost to Buyer. To
the extent caused by or resulting from the acts of
Buyer, its agents, servants, employees, or contractors,
Buyer agrees to immediately clean up any Hazardous
Materials found on or within any portion of the Real
Property and, with respect to such matters as described
herein for which Buyer is responsible, to remediate the
Real Property, to comply with any Environmental Laws,
and to pay for all clean-up and remediation costs at no
cost to Sellers. Each parties' respective clean-up
and/or remediation efforts as described herein shall
mean and refer to those actions which are necessary and
required under the Environmental Laws.
iii. To the extent that Sellers are responsible for the same
in accordance with Subparagraph (ii) above, Sellers
hereby agree to indemnify, release and hold Buyer, its
successors, assigns, tenants, subtenants, officers,
directors, shareholders and employees, harmless from and
against all Liabilities (defined below) incurred in
connection therewith, suffered by, incurred by or
assessed against such parties, their agents or other
representatives, whether incurred as a result of legal
action taken by any governmental entity or agency, taken
by any private claimant, or taken by Buyer, before or
after Closing as a result of the presence, disturbance,
discharge, release, removal or cleanup of any Hazardous
Materials upon or under, on or off site, associated with
or flowing or originating from the Real Property. To the
extent that Buyer is responsible for the same in
accordance with Subparagraph (ii) above, Buyer hereby
agrees to indemnify, release and hold Sellers, its
successors, assigns, officers, directors, shareholders
and employees, harmless from and against all
Liabilities, suffered by, incurred by or assessed
against such parties, their agents or other
representatives, whether incurred as a result of legal
action taken by any governmental entity or agency, taken
by any private claimant, or taken by Sellers, before or
after Closing as a result of the presence, disturbance,
discharge, release, removal or clean-up of any Hazardous
Materials upon or under, on or off site, associated with
or flowing or originating from the Real Property. The
term
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"Liabilities" as used in this paragraph is hereby
defined as any and all liabilities, expenses, demands,
damages, punitive or exemplary damages, consequential
damages, costs, cleanup costs, response costs, losses,
causes of action, claims for relief, attorneys and other
legal fees, other professional fees, penalties, fines,
assessments and charges.
iv. All representations, warranties, indemnities and
covenants of Sellers in this Purchase Contract are made
on a joint and several basis.
15. BROKER'S COMMISSION. Buyer and Sellers represent and warrant to the
other that neither of them have engaged or contracted with any person,
firm or entity to serve or act as a broker, agent or finder for the
purpose of the sale and purchase of the Real Property, and that no
broker's or real estate or other similar commissions or fees are or
shall be due in respect of the transaction contemplated by this
Purchase Contract. The Buyer and Sellers each agree to indemnify,
defend and save harmless the other from and against any cost and
expense, including reasonable attorney's fees, incurred by the other as
a result of the untruth of any of the foregoing representations made by
it.
16. ENTIRE AGREEMENT. This Purchase Contract constitutes the entire
agreement between Buyer and Sellers with respect to the Real Property
and may not be amended except by written instrument executed by Buyer
and Sellers. Any other agreements, written or oral, between Buyer and
Sellers with respect to the Real Property are hereby superseded in
their entirety by this Purchase Contract.
17. CAPTIONS. The paragraph captions are inserted for convenience only and
are in no way intended to describe, interpret, define or limit the
scope or content of this Purchase Contract or any provision hereof.
18. CONSTRUCTION. Words of any gender used in this Purchase Contract shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise. Any disputes regarding the
interpretation of any portion of this Purchase Contract shall not be
presumptively construed against the drafting party.
19. REMEDIES CUMULATIVE. Except as specifically set forth above all rights,
powers and privileges conferred hereunder upon the parties hereto shall
be cumulative and in addition to those other rights, powers and
remedies hereunder and those available at law or in equity. All such
rights, powers and remedies may be exercised separately or at once, and
no exercise of any right, power or remedy shall be construed to be an
election of remedies or shall preclude the future exercise of any or
all other rights, powers and remedies granted hereunder or available at
law or in equity, except as expressly provided herein.
20. NO WAIVER. Neither the failure of either party to exercise any power
given such party hereunder nor to insist upon strict compliance with
its obligations hereunder, nor any custom or practice of the parties at
variance with the terms hereof shall constitute a waiver of either
party's right to demand exact compliance with the terms hereof.
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21. APPLICABLE LAW. This Purchase Contract shall be construed and
interpreted in accordance with the laws of the State of South Carolina.
22. SUCCESSORS AND ASSIGNS. This Purchase Contract shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, successors and assigns. Buyer shall have the right and privilege
to assign and transfer its interest hereunder to MAR MAR REALTY TRUST,
A TO-BE-FORMED MARYLAND REAL ESTATE INVESTMENT TRUST, OR MAR MAR REALTY
L.P., A TO-BE-FORMED MARYLAND LIMITED PARTNERSHIP (EACH TO BE FORMED BY
AFFILIATES OF BUYER) OR TO an existing corporation, partnership,
limited liability company or other business entity, or to a
corporation, partnership, limited liability company or business entity
formed for the purpose of consummating this transaction in which Buyer
has an ownership interest or is affiliated by common ownership.
23. COUNTERPARTS. This Purchase Contract may be executed in two (2) or more
counterparts.
24. SURVIVAL. Sellers' and Buyer's representations and warranties and
indemnities set forth in PARAGRAPHS 14 and 15 shall survive Closing.
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IN WITNESS WHEREOF, the parties have executed the Purchase Contract
pursuant to authority duly given the day and year first above written.
SONIC AUTOMOTIVE, INC.
By: /s/ O. Bruton Smith
-----------------------------------
Its: Chief Executive Officer
-----------------------------------
CENTURY AUTO SALES, INC.
By: /s/ A. Foster McKissick, III
-----------------------------------
Its: Chairman
-----------------------------------
FAIRWAY INVESTMENTS, LLC
By: /s/ A. Foster McKissick, III
-----------------------------------
Its: President
-----------------------------------
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