Exhibit 10.19 Colorado Springs, CO
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement"), by and between Bishop
Powers, Ltd., a Colorado Limited Partnership (hereinafter "Seller"), and
AutoZone, Inc., a Nevada corporation (hereinafter "Purchaser"), is for the
purpose of setting forth all terms and conditions for the sale of the real
property described hereinafter. The total purchase price is Four Hundred Forty
Thousand Dollars ($440,000.00), payable all cash at the time of closing, of
which the earnest money in the amount of Five Thousand Dollars ($5,000.00)
(hereinafter "Earnest Money") is a part. Seller agrees to sell and convey to
Purchaser and Purchaser agrees to purchase upon the terms, conditions and
contingencies set forth in this Agreement, the Property (hereinafter the
"Property") situated in the City of Colorado Springs, County of El Paso, State
of Colorado, described as follows:
Lot 1, The Crossing at Palmer Park Filing No. 3, Colorado Springs, El
Paso County, Colorado, containing 43,580 square feet, the
configuration of which is shown on a copy of the plat thereof attached
hereto as Exhibit "A".
TERMS, CONDITIONS AND CONTINGENCIES OF PURCHASE AND SALE:
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1. ACCEPTANCE AND EFFECTIVE DATE In the event this Agreement is not accepted
by Seller and returned to Purchaser on or before May 26, 2000, this
Agreement to purchase shall be void. The Agreement shall be effective as of
the date on which Purchaser receives a fully executed original of this
Agreement (hereinafter "Effective Date"). Purchaser shall notify Seller and
Escrow Agent within five (5) business days of the date of its receipt of a
fully executed original of this Agreement.
2. DEPOSIT Within ten (10) days after the Effective Date, Purchaser's check
for the Earnest Money shall be delivered to the escrow agent listed in the
section hereof entitled "NOTICES" (hereinafter "Escrow Agent"), who shall
hold the check uncashed until the opening of escrow. Upon the opening of
escrow, the Earnest Money shall be deposited in escrow by the Escrow Agent.
3. CONDITIONS PRECEDENT In the event this Agreement is terminated by Purchaser
under the section hereof entitled "OPTION TO CANCEL", then the Earnest
Money shall be paid to Seller within fifteen (15) days thereafter, and the
parties shall have no further liabilities or obligations to each other. In
the event this Agreement is terminated on any other grounds provided in
this Agreement, or in the event any contingency, condition, covenant or
warranty set forth in this Agreement has not been eliminated or complied
with to the satisfaction of Purchaser or expressly waived in writing by
Purchaser, within the applicable time limit and pursuant to the provisions
of this Agreement, then this Agreement may be declared null and void at
Purchaser's option, and the Earnest Money deposit shall be returned to
Purchaser within fifteen (15) days, the escrow and this Agreement shall be
terminated and the parties shall have no further liabilities or obligations
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to each other. Despite the foregoing and despite any other provision of
this Agreement to the contrary, termination of this Agreement shall not
relieve Purchaser or Seller from their respective obligations to pay fees
and expenses incurred in connection with this Agreement as provided herein.
Seller and Purchaser agree that Escrow Agent is hereby authorized to
deliver the Earnest Money deposit and any other sums deposited with Escrow
Agent in accordance with this Agreement.
4. ESCROW Within fifteen (15) calendar days after the Effective Date, an
escrow shall be created by Escrow Agent, to consummate the purchase and
sale specified herein, which escrow shall have a time limit of and shall
close in the office of Escrow Agent on or before one hundred twenty (120)
days following the Effective Date, unless extended as provided herein or
unless extended in writing by the agreement of both parties. Within three
(3) business days after opening of escrow, the Escrow Agent shall notify,
in writing, Seller and Purchaser of the date of the opening of escrow. The
escrow fees, and/or closing fees, if any, shall be paid one-half (1/2) by
Seller and one-half (1/2) by Purchaser.
5. TITLE EXAMINATION Within ten (10) days following the opening of escrow,
Purchaser shall, at Seller's cost, have the title to the Property and any
easements appurtenant thereto examined and shall obtain a commitment for
title insurance on the Property and any easements appurtenant thereto
(hereinafter "Commitment"), together with complete and legible copies of
all documents which create exceptions to title set forth therein,
including, but not limited to covenants, conditions, restrictions,
reservations, easements, rights and rights of way of record, liens,
encumbrances and other matters of record. The policy of title insurance
(hereinafter "Policy") shall be an ALTA Owner's Policy form approved by
Purchaser, with standard exceptions deleted and with a liability in the
amount of the total purchase price of the Property, and shall specifically
insure the boundary lines of the Property and any easements appurtenant
thereto, and shall be paid for by Seller. Said Policy shall contain, as
additional coverage, a standard ALTA approved escalator clause in an amount
to be determined by Purchaser for future improvements to the property,
which shall be paid for by Purchaser.
Purchaser shall have the right to object to any Defect of Title (as
defined herein) which appears in the Title Commitment or the Survey (as
hereinafter described). Information contained in the Title Commitment
and/or the Survey (hereinafter referred to as the "Title Documents") and
which renders title to the Property unmerchantable or which makes the
Property unsuitable for Purchaser's Intended Use are defined as a "Defect
of Title". Any objection to a Defect of Title must be in writing and must
be received by Seller no later than thirty (30) days following Purchaser's
receipt of the last of (i) the Title Commitment, or, (ii) the Survey (the
"Objection Period"). Purchaser's failure to provide Seller with written
notice of an objection to any Defect of Title appearing in the Title
Documents within the Objection Period shall be deemed to be a waiver by
Purchaser of any objection it might otherwise have; and all such title
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matters shall become "Permitted Exceptions." Notwithstanding the foregoing,
if a Defect of Title is not revealed in the Title Documents and is
discovered by Purchaser after the close of the Objection Period, Purchaser
shall have until five (5) days after the date of its discovery of the
Defect of Title or the date of Closing, whichever is earlier, to provide
Seller with notice of its objection to the Defect of Title. If Seller
receives timely written notice from Purchaser of a Defect of Title, Seller
shall have the right, in its sole discretion, to (a) correct or cure the
Defect of Title, (b) with the approval of Purchaser, obtain title insurance
over the Defect of Title through title policy endorsement or otherwise, or
(c) notify Purchaser that Seller does not intend to cure or insure over the
Defect of Title. If Seller is unable or unwilling to cure or insure over a
Defect of Title, Purchaser shall have the right to either (a) terminate
this Agreement and its obligations hereunder, or (b) waive its objection to
the Defect of Title. If Purchaser elects to terminate this Agreement, the
Escrow Agent shall return the Earnest Money to Purchaser and neither party
shall have any further obligation hereunder. If Seller elects to correct or
cure the Defect of Title, Seller shall pursue such correction or cure in a
diligent manner. If Purchaser elects to waive its objection to the Defect
of Title, the title matter objected to shall thereafter be considered a
"Permitted Exception." A Defect of Title, regardless of its disposition
under this Section, shall not result in a reduction of the Purchase Price.
6. INTENTIONALLY OMITTED
7. TRANSFER OF TITLE Purchaser's obligations under this Agreement are
contingent upon Purchaser receiving from Seller clear, marketable and
insurable fee simple title to the Property, free of any and all
unacceptable exceptions to title and all leasehold interests, liens and
encumbrances of record or not of record, and with the warranties of Seller
subject only to the Permitted Exceptions which also will appear as
exceptions in the Policy to be issued pursuant to the section of this
Agreement entitled "TITLE EXAMINATION". If Seller fails to meet this
obligation, Purchaser may terminate this Agreement and/or exercise any
other right Purchaser may have to legal and equitable relief.
The Property shall be conveyed by a good and sufficient special
warranty deed (hereinafter "Deed"), acceptable to Purchaser's counsel,
running to Purchaser or Nominee. The Property description to be used in the
Deed to Purchaser shall be the platted legal description provided with the
Survey (as defined hereinafter).
Seller shall pay the cost of any state and documentary stamps to be
attached to the Deed in accordance with requirements of all lawful
governmental authorities. Seller shall pay the cost for preparation and
recordation of the Deed. If Purchaser obtains a loan on the Property, then
Purchaser is to pay all expenses incident thereto.
Prior to the closing of escrow, Seller shall furnish Escrow Agent
Seller's tax identification number and any other information requested by
Escrow Agent in order to comply with any reporting requirements. Seller
shall execute and deliver to Escrow Agent, at or prior to closing, a
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customary seller's affidavit and such other documents as may be reasonably
requested by Escrow Agent and/or the title insurer in order to close the
purchase and sale and issue the Policy as required in this Agreement.
Seller covenants and agrees that, at or prior to closing, Seller
shall, at Seller's expense, cause all encumbrances, judgments and other
liens against the Property securing indebtedness, except for current year
real estate taxes not yet due and payable, any current installments of any
special assessments, and any indebtedness of Purchaser, to be fully
released and discharged of record insofar as they affect or may affect the
Property.
8. NOMINEE Without being relieved of any liability under this Agreement,
Purchaser reserves the right to take title to the Property in a name or
Nominee other than itself.
9. PRORATIONS, ADJUSTMENTS AND EXPENSES Real estate taxes shall be prorated as
of the date of closing and passing of the deed based on the taxes levied in
the current year, if levied, and if not, based on the taxes levied during
the previous year based on the number of days in Seller's and Purchaser's
respective period of ownership during the present year. For the purposes of
calculating such prorations at closing, the value of any improvements on
the portion of the property retained by Seller shall be excluded and any
such taxes assessed on the improvements on the Property shall be prorated
based on the number of days in Seller's and Purchaser's respective periods
of ownership during the present year. All unpaid real estate taxes for
years prior to the date of closing shall be paid in full at closing by
Seller. Installments of any and all general or special assessments levied
against the Property and payable for years prior to closing, if any, shall
be paid in full by Seller at closing and current installments of such
assessments levied against the Property and payable in the year of closing,
if any, shall be prorated at closing. Installments of any and all general
or special assessments for years following closing shall be the sole
responsibility of Purchaser. If requested, Seller shall provide to Escrow
Agent copies of the last paid tax receipts on the Property prior to
closing. This paragraph shall survive the close of escrow.
If the Property is assessed as a part of a larger tax parcel, then
Purchaser and Seller hereby agree to cooperate to divide the Property out
of the larger tax parcel as soon as possible after the close of escrow. For
the purposes of closing, no real estate tax proration shall be made at
closing. Until a division of the tax parcel is made, Seller hereby
covenants and agrees to pay prior to delinquency all real estate taxes
levied against the entire tax parcel from and after the close of Escrow and
to promptly furnish Purchaser with copies of all tax bills, assessments,
valuations and other tax notices. Within thirty (30) days of the receipt of
a copy of the paid tax bill, Purchaser hereby covenants and agrees to
reimburse Seller for Purchaser's proportionate share of the real estate
taxes based on the ratio of the total square footage of the Property to the
total square footage of the entire parcel covered by any bill for such
taxes multiplied by a fraction of which the numerator is the number of days
in Purchaser's period of ownership and the denominator is the number of
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days in that year. The value of any improvements to the portion of the
property retained by Seller shall be executed and any such taxes assessed
on the improvements on the Property shall be prorated based on the number
of days in Seller's and Purchaser's respective periods of ownership. Should
Seller fail to pay the real estate taxes and assessments levied against the
entire tax parcel prior to delinquency, then Purchaser may elect to pay
such taxes. Seller hereby covenants and agrees to reimburse Purchaser for
the amounts so expended by Purchaser, including attorney's fees, within ten
(10) days of Seller's receipt of Purchaser's written request for
reimbursement. Should Seller fail to reimburse Purchaser for the amounts so
expended, Purchaser may proceed with a lawsuit to recover said amounts,
including attorney's fees, and/or file a lien against Seller's property for
said amounts, including attorney's fees. This paragraph shall survive the
close of escrow.
All rentals, interest on encumbrances assumed by Purchaser and utility
and operating expenses, if any, shall be prorated as of the date of closing
and passing of the deed based on the number of days in Seller's and
Purchaser's respective period of ownership during the present year. Seller
shall, at the date of closing, provide Escrow Agent with final billings for
all utility services to the Property which billings are to be paid by
Escrow Agent from Seller's proceeds of the sale.
10. USE For the purpose of this Agreement, Purchaser's intended initial use of
the Property is defined as: construction of a store building and related
improvements acceptable to Purchaser and operation therein of a retail
store selling automotive parts, supplies and accessories. Nothing contained
in this section or this Agreement other than those restrictions set forth
in the "Declaration" referred to in Exhibit "B" attached hereto and made a
part hereof shall be construed to limit Purchaser's right to use the
Property for any lawful purpose. Purchaser acknowledges that in accordance
with the provisions of the Declaration, Seller will have certain approval
rights, including the right to approve development plans and plans and
specifications for improvements prior to their submission to the City.
Purchaser shall not permit any development plan to become final and binding
on the Property or Seller until after Closing. Purchaser shall be solely
responsible for obtaining the City's approval of Purchaser's development
plan, and Seller will cooperate with Purchaser's efforts to obtain the
City's approval of Purchaser's development plan as approved by Seller. The
Seller and Purchaser shall cooperate with one another in a reasonable
manner to the end that the Closing occurs as contemplated by this
Agreement. All approvals required to be obtained by either party pursuant
to this Agreement shall be sought in a reasonable manner and acted upon
diligently and expeditiously. Whenever the provisions of this Agreement
require one party to obtain the other party's approval, such approval shall
not be unreasonably withheld or delayed. Each party shall use its good
faith efforts to satisfy all the conditions to its performance of this
Agreement.
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11. ZONING AND PERMITS Purchaser is to have until one hundred fifteen (115)
days following the Effective Date to receive all authorizations and
permits, including, but not limited to, curb cut, building and renovation
approvals, permits, zoning and subdivision interpretations and
confirmations, and all variances, utility permits, authorizations and
easements necessary for Purchaser's intended use as described herein
("Approvals", collectively, hereinafter). If, by such date, Purchaser has
not received or is denied or refused any such Approvals necessary to assure
Purchaser that the Property is suitable for Purchaser's intended use of the
Property, as determined in Purchaser's discretion, or if the necessary
Approvals are granted subject to any conditions that Purchaser deems
unacceptable prior to such date, then Purchaser may, by furnishing written
notice to Seller and Escrow Agent prior to the date of closing of escrow,
either terminate this Agreement or extend the date for the close of escrow
an additional thirty (30) days, to attempt to obtain said Approvals. This
thirty (30) day extension period shall be followed by two (2) additional
thirty (30) day extension periods if, by the end of the first or second
thirty (30) day extension period, Purchaser has not received or is denied
or refused any such Approvals necessary to assure Purchaser that the
Property is suitable for Purchaser's intended use of the Property, as
determined in Purchaser's discretion, or if the necessary Approvals are
granted subject to any conditions that Purchaser deems unacceptable. If
Purchaser does not receive all of the necessary Approvals as aforesaid
prior to the end of the third thirty (30) day extension period, Purchaser
may terminate this Agreement, or the parties may further extend this
Agreement by mutual written agreement. Purchaser agrees to act in good
faith, diligently and timely prosecute, and use its reasonable efforts to
seek any Approvals.
If subdivision or replatting of the Property is required by any
applicable governmental authority as a part of the permitting process, then
Purchaser shall perform the subdivision or replatting required at
Purchaser's cost prior to the closing of escrow. If, as a condition of the
permitting process, the said governmental authority requires the dedication
of a portion of the Property or the imposition of any restrictions or
easements, or imposes any other requirements or conditions that are
unsatisfactory to Purchaser as determined by Purchaser in Purchaser's sole
discretion, then Purchaser may terminate this Agreement by written notice
to the Seller.
12. INTENTIONALLY OMITTED
13. SURVEY AND INVESTIGATION Within thirty (30) days after the opening of
escrow, Seller shall deliver to Purchaser a survey of the Property
("Survey") which complies with the "Boundary and Topographical Survey
Requirements" of Purchaser as are set forth in Exhibit "C" attached hereto
and made a part hereof. The Survey shall be certified to Purchaser, the
Title Company, any lender designated by Purchaser, and Seller. The Survey
shall contain a certification of the surveyor sufficient for deletion of
the standard survey exception from the Title Commitment. Seller shall pay
for the costs of the Survey, not to exceed Two Thousand Dollars
($2,000.00), and Purchaser shall pay for the balance of such cost exceeding
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Two Thousand Dollars ($2,000.00), provided however, that any credit Seller
may receive from the survey company for any amounts previously paid the
survey company for survey work done on the Property shall be treated for
the purposes of this sentence as though it was a cost incurred by Seller
for the Survey.
Purchaser may, at Purchaser's cost, conduct or have conducted any
environmental audits, assessments, reports, studies and any soil borings
and/or laboratory tests containing information required by Purchaser's
architects and engineers, including, but not limited to tests for
hydrocarbons, Hazardous Materials (as hereinafter defined), asbestos, or
other hazardous chemicals and pollutants in order to determine whether the
Property is acceptable to Purchaser (hereinafter, collectively
"Investigation"). Seller shall allow and assure Purchaser and Purchaser's
contractors the right of access to inspect the Property and perform the
Survey and Investigation. Purchaser shall have forty five (45) days after
receipt of said Survey and Investigation results to notify Seller, in
writing, of any conditions shown by said Survey and Investigation results
which are unacceptable to Purchaser. If Seller and Purchaser cannot agree
in writing on terms, conditions and time limits for removing and/or curing
any such unacceptable conditions, or if Seller fails to remove and/or cure
all such unacceptable conditions, as provided in such agreement, then
Purchaser may terminate this Agreement by delivering written notice to
Seller. Notwithstanding the foregoing, if the results of any Phase I
Environmental Audit or Assessment or any other reports or tests for
Hazardous Materials are unacceptable to Purchaser, then Purchaser may
terminate this Agreement by furnishing written notice of termination to
Seller.
Purchaser hereby agrees to indemnify, defend, and hold Seller harmless
from and against any and all losses, damages, causes or action, claims,
liabilities, cost and expenses suffered or incurred by Seller as a direct
result of the Investigation. The foregoing shall not include, however, any
cost, expense, claim or liability arising out of or in any way related to
the discovery or disturbance of contaminated soil, asbestos, or any other
Hazardous Material as defined herein.
14. DAMAGE OR LOSS OF THE PROPERTY The risk of loss or damage to the Property
and any improvements thereon until the delivery of the Deed or termination
of occupancy by Seller, whichever occurs last, is assumed by Seller. This
contingency shall survive the closing of escrow.
In case of any loss or damage by fire or otherwise to the
improvements, if any, now existing on the Property between the date hereof
and the final consummation of sale, Purchaser may, at Purchaser's option,
either terminate this Agreement by written notice to Seller and Escrow
Agent, or Purchaser may complete the purchase of the Property in which case
Purchaser shall receive the benefit of any insurance proceeds paid or to be
paid for such loss or damage. Seller shall promptly notify Purchaser and
Escrow Agent of any such loss or damage occurring prior to the closing of
escrow.
15. RESTRICTIVE COVENANTS
Seller and Purchaser hereby covenant and agree for themselves, their
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successors and assigns that, at or prior to closing, Seller shall execute
the amendment to the existing "Declaration" for the Center in form attached
as Exhibit "B", which is a fully negotiated part of this Agreement, and
said agreement shall be recorded, at Purchaser's expense, with the
recordation of the Deed.
16. DELIVERY OF THE PROPERTY Seller shall deliver vacant possession of the
Property to Purchaser at closing subject to the warranties made in Section
20 of this Agreement, which shall survive the close of escrow for a period
of two (2) years thereafter.
17. BUILDINGS, EQUIPMENT, AND PERSONAL PROPERTY No buildings, equipment or
personal property are included in the sale of the Property.
18. UTILITIES If adequate utilities and related facilities, including water,
stormwater and sanitary sewage disposal, telephone service and energy
sources to service the Property and improvements thereto for Purchaser's
intended use and easements therefor are not available to the sole
satisfaction of the Purchaser, Purchaser may terminate this Agreement by
written notice to Seller.
19. ATTACHMENTS Exhibits "A", "B" and "C" attached hereto shall be deemed a
part hereof.
20. REPRESENTATIONS AND WARRANTIES OF SELLER (A) By acceptance of this
Agreement, Seller warrants that, to the best of Seller's knowledge, Seller
has not received, nor is Seller aware of any notification from any
building, safety or health department, or any other governmental or
quasi-governmental authority or official requiring any work to be done on
the Property or the improvements thereto. Seller further warrants and
agrees that Seller will promptly furnish Purchaser copies of any and all
such notices received by Seller prior to the closing of escrow. Upon
learning of any work required by any such authority or official to the
Property or the improvements thereto, Purchaser shall have ten (10) days to
advise Seller of any such work that is objectionable to Purchaser, and
unless Seller performs such work prior to the closing of escrow, Purchaser
may elect to terminate this Agreement or to complete the purchase of the
Property.
(B) Seller warrants and represents to Purchaser that, to the best of
Seller's knowledge, there are no storage tanks, foundations, footings, or
any other underground improvements remaining within the Property. Except as
may otherwise be provided for or disclosed herein, and except for those
matters that are subject to Purchaser's control, to the best of Seller's
actual knowledge without investigation, as of the date of this Contract,
the Property may be used for Purchaser's Intended Use.
(C) Purchaser and Seller agree that if any city, county, state,
federal or municipal body or any other authority having such powers shall
initiate a rezoning and/or condemnation of the Property or any part thereof
throughout the duration of this escrow, Purchaser may terminate this
Agreement by written notice to Seller and Escrow Agent. Seller warrants
that, to the best of Seller's knowledge, Seller is not aware nor has Seller
received any notification of any proposed rezoning or condemnation of the
Property, and that Seller will promptly furnish Purchaser and Escrow Agent
copies of all such notices
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received by Seller prior to the closing of escrow. If, prior to the closing
of escrow, Purchaser shall discover any other proposed governmental action
(such as, but not limited to any proposed changes to the street right of
ways located adjacent to the Property or to the road network in the
vicinity of the Property) which would, in Purchaser's opinion, impair
Purchaser's use of the Property for the purposes described in this
Agreement, then Purchaser may terminate this Agreement by written notice to
Seller and Escrow Agent.
(D) To the best of Seller's actual knowledge without investigation, as
of the date of this Contract and as of the date of Closing, the Property
(including land, surface water, ground water and improvements) is now and
will then be free of all contamination, including (i) any "hazardous
waste", "underground storage tanks", "petroleum", "regulated substance", or
"used oil" as defined by the Resource Conservation and Recovery Act of 1976
(42 U.S.C. ss. 9601, et seq.) as amended, or by any regulations promulgated
thereunder; (ii) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
ss. 9601, et seq.) as amended, or by any regulations promulgated thereunder
(including, but not limited to, asbestos and radon); (iii) any "oil,
petroleum products, and their byproducts", as defined by C.R.S. 1973 ss.
25-17-101 et seq., as amended, or by any regulations promulgated
thereunder; (iv) any "hazardous waste" as defined by the Colorado Waste
Act, C.R.S. 1973 ss. 25-15-101, et seq., or by any regulations promulgated
thereunder; (v) any substance the presence of which on, in or under the
Property is prohibited by any law similar to those set forth above; and
(vi) any other substance which by law, regulation or ordinance requires
special handling in its collection, storage, treatment or disposal.
(E) No leases or service contracts encumber any part of the Property
or limit Seller's right to sell and convey the Property. In addition,
Seller warrants and represents that, to the best of Seller's knowledge,
there is no litigation, whether threatened or filed, or other such dispute
affecting any part of the Property or any interest therein. Should Seller
receive notice or otherwise become aware of any such threatened or
instituted litigation or dispute, Seller agrees to immediately notify
Purchaser and to work diligently with Purchaser to bring the litigation or
dispute to a resolution.
(F) Seller has the sole right, legal power and authority to enter into
this Agreement, and the sole right, legal power and authority to convey the
Property in accordance with the terms and conditions of this Agreement.
(G) All requisite corporate or partnership actions have been taken and
satisfied by the Seller to authorize the execution and performance of this
Agreement, and such actions will be taken at or before closing so as to
allow the consummation of the transaction contemplated herein.
(H) The individual(s) executing this Agreement, on behalf of Seller,
has (or have) the right, legal power and actual authority to bind the
Seller to the terms and conditions of this Agreement.
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For purposes of this Section 20, "to the best of Seller's knowledge"
shall mean to the best of the knowledge of Robert E. Thrailkill and John A.
Alsko, who are the President and Secretary, respectively, of Bishop Capital
Corporation, the general partner of Seller, and to the best of the
knowledge of any current employee of Seller.
21. REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser hereby covenants,
warrants and represents to Seller that:
(A) Purchaser has the sole right, legal power and authority to enter
into this Agreement, and the sole right, legal power and authority to
purchase the Property in accordance with the terms and conditions of this
Agreement.
(B) All requisite corporate or partnership actions have been taken and
satisfied by the Purchaser to authorize the execution and performance of
this Agreement, and such actions will be taken at or before closing so as
to allow the consummation of the transaction contemplated herein.
(C) The individual(s) executing this Agreement, on behalf of
Purchaser, has (or have) the right, legal power and actual authority to
bind the Purchaser to the terms and conditions of this Agreement.
22. NOTICES Any and all notices required or permitted to be given under this
Agreement shall be in writing, postage and/or shipping and delivery
pre-paid and shall be sent by U.S. Postal Service Certified Mail with
return receipt requested or via a national overnight courier service
requiring a signature upon delivery (such as Federal Express) to:
SELLER: PURCHASER:
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If by U.S. Postal Service
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Certified Mail:
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Bishop Powers, Ltd. AutoZone, Inc.
c/o Bishop Capital Corporation Real Estate Dept. 8340
716 College View Drive P.O. Box 2198
Riverton, WY 82501 Memphis, TN 38101-2198
Attn: Robert E. Thrailkill Attn: Brad Denzin
WITH A COPY TO:
---------------
Flynn McKenna Wright & Karsh, LLC
111 South Tejon, Suite 202
Colorado Springs, CO 80919
Attn: R. Tim McKenna
ESCROW AGENT: If by Overnight Courier:
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First American Security Title Guaranty AutoZone, Inc.
5995 Greenwood Plaza Blvd., Suite 110 Real Estate Dept. 8340
Greenwood Village, CO 80111 60 Madison Avenue - 10th Floor
Attn: John Ellis Memphis, TN 38103
Attn: Brad Denzin
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23. OPTION TO CANCEL By written notice to Seller and Escrow Agent, and, unless
terminated for any of the reasons provided in this Agreement, upon
forfeiture of the Earnest Money, Purchaser may cancel this Agreement at any
time for any reason during the term of this Agreement or during any
extension of this Agreement. Said written notice shall release both
Purchaser and Seller from this Agreement and neither shall have any further
obligations under this Agreement.
24. BROKERS Seller represents and warrants to Purchaser that, other than
Highland Commercial Group, LLC, ("Broker"), no broker or finder has been
engaged by Seller in connection with any of the transactions contemplated
by this Agreement. Seller further represents and warrants that no person or
entity, other than Broker, now claims or will claim any commission,
finder's fee or other amounts by, through, under or as a result of any
relationship with Seller because of such transactions. Seller agrees to pay
Broker a commission equal to eight percent (8%) of the Purchase Price,
which commission shall not be earned or payable until the occurrence of the
Closing and Seller's receipt of the Purchase Price. In the event of a
termination of this Agreement, Broker shall have no right to share in the
Earnest Money Deposit if retained by Seller. Purchaser represents and
warrants to Seller that no broker or finder has been engaged by Purchaser
in connection with any of the transactions contemplated by this Agreement.
Purchaser further represents that no person or entity, other than Broker,
claims or will claim any commission, finder's fee or other amounts by,
through, under or as a result of any relationship with Purchaser because of
such transactions. Each party agrees to hold the other party harmless from
and against any and all costs, expenses, claims, losses or damages,
including reasonable attorneys' fees, resulting from any breach of the
representations and warranties contained in this Section.
25. PRIOR AGREEMENTS This Agreement supersedes any and all prior Agreements
between the parties regarding the Property and is the entire agreement
between the parties. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
heirs, successors and assigns.
26. ATTORNEY'S FEES In the event there is any litigation between the parties
arising out of or in connection with this Agreement and/or the Property,
then the prevailing party shall be entitled to receive, in addition to any
other relief that may be awarded, an award of its court costs and
attorney's fees as determined by the court hearing the litigation.
27. GENERAL PROVISIONS
(A) Seller agrees not to alter or encumber, in any way, Seller's title
to the Property after Seller's execution of this Agreement without the
prior written consent of the Purchaser.
(B) Seller's execution, delivery or performance of this Agreement is
not prohibited by, and will not cause a default in any other agreement,
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covenant, document, or instrument applicable to the Property.
(C) This Agreement shall not be strictly construed against Purchaser
as the draft or writing of Purchaser or because of any presumption in
connection with terms favorable to, or dictated by Purchaser.
(D) This Agreement may be executed in counterpart originals, each of
which shall have the effect of an original.
(E) Time is of the essence of this Agreement.
(F) This Agreement shall be governed by the internal laws of the State
of Colorado without regard to and excluding the principles of conflicts of
laws.
The Purchaser agrees to purchase the Property upon and subject to the
terms, conditions and contingencies herein stated. The undersigned Purchaser
further agrees to save, defend, and hold Seller harmless against any claims,
conflicts, liens or disputes for brokerage commission that might arise out of
Seller's execution of this Agreement, and which are the result of Purchaser's
actions.
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PURCHASER: AutoZone, Inc., a
Nevada corporation
By:
/s/ Wm. David Gilmore
---------------------
Title: Vice President
By:
/s/ Brett D. Easley
-------------------
DATE: May 18, 2000 Title: Senior Vice President
--------------
The Seller hereby agrees to sell said Property upon and subject to the
terms, conditions and contingencies herein stated.
SELLER: Bishop Powers, Ltd., a Colorado
Limited Partnership
By:
/s/ Robert E. Thrailkill
-------------------------
Title: President
By:
-------------------------
DATE:May 23,2000 Title:
----------- ----------------------
AGREEMENT OF BROKER
The undersigned, as Broker hereunder, acknowledges and agrees that Section 24 of
the foregoing Agreement correctly sets forth the understanding and agreement
between Broker, Seller and Purchaser relating to the payment of a commission
resulting from the sale of the Property.
BROKER: Highland Commercial Group, LLC
By:
/s/ James E. Spittler, Jr.
---------------------------
Its: Member
-------------------------
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EXHIBIT A
To
Purchase and Sale Agreement
(Copy of Plat Map)
14
<PAGE>
EXHIBIT B
To
Purchase and Sale Agreement
(Amendment to Declaration)
15
<PAGE>
EXHIBIT C
To
Purchase and Sale Agreement
(Boundary and Topographical Survey Requirements)
16
