EXHIBIT 10.2
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
FOR
▇▇▇▇▇▇ STEEL LAND DEVELOPMENT, INC.
(Seller)
and
THE CALIFORNIA SPEEDWAY CORPORATION
(Buyer)
DATED: August 10, 2000
INDEX
Item Page No.
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ARTICLE 1 RECITALS............................................................. 1
1.1 ..................................................................... 1
1.2 ..................................................................... 1
ARTICLE 2 AGREEMENT OF PURCHASE AND SALE....................................... 1
2.1 Purchase Price....................................................... 1
2.2 Payment of Purchase Price............................................ 1
ARTICLE 3 ESCROW............................................................... 2
3.1 Opening of Escrow.................................................... 2
3.2 Delivery of Documents to Escrow...................................... 2
3.3 Close of Escrow...................................................... 2
ARTICLE 4 REVIEW PERIOD........................................................ 2
4.1 Review Period........................................................ 2
4.2 Review of Condition of Property...................................... 3
4.3 Review of Condition of Title......................................... 3
4.4 Disapproval of Contingencies......................................... 3
ARTICLE 5 ADDITIONAL COVENANTS AND AGREEMENTS.................................. 4
5.1 Cooperation.......................................................... 4
5.2 Federal and State Withholding Requirements........................... 4
5.3 No Interest in Water Rights.......................................... 4
5.4 Sewer Service........................................................ 4
5.5 Plans and Approvals.................................................. 4
ARTICLE 6 PRE CLOSING OBLIGATIONS.............................................. 5
6.1 Seller's Obligations................................................. 5
6.2 Buyer's Obligations.................................................. 5
ARTICLE 7 POST CLOSING OBLIGATIONS............................................. 5
7.1 Improvements......................................................... 5
7.2 Buyer's Compliance with Environmental Laws........................... 5
7.3 Indemnification for Noncompliance.................................... 6
7.4 Environmental Related Definitions.................................... 6
ARTICLE 8 ACKNOWLEDGMENTS, REPRESENTATIONS, WARRANTIES AND INDEMNITIES......... 7
8.1 Buyer's Acknowledgments, Representations, Warranties
and Indemnity........................................................ 7
8.2 Seller's Acknowledgments, Representations, Warranties
and Indemnity........................................................ 8
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Item Page No.
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ARTICLE 9 THE CLOSE OF ESCROW.................................................. 9
9.1 Close of Escrow...................................................... 9
9.2 Termination Based on Failure to Close by Closing Date................ 10
9.3 Prorations........................................................... 10
9.4 Seller's Fees and Costs.............................................. 10
9.5 Buyer's Fees and Costs............................................... 11
ARTICLE 10 REMEDIES............................................................. 11
10.1 Seller's Liquidated Damages.......................................... 11
10.2 Buyer's Liquidated Damages........................................... 11
ARTICLE 11 GENERAL PROVISIONS................................................... 12
11.1 Time of the Essence and Strict Construction.......................... 12
11.2 Notice and Demands................................................... 12
11.3 Captions for Convenience............................................. 12
11.4 Severability......................................................... 12
11.5 Governing Law........................................................ 12
11.6 No Oral Amendment or Modification.................................... 12
11.7 Relationship of Seller and Buyer..................................... 13
11.8 Attorneys' Fees...................................................... 13
11.9 Amended and Successor Statutes and Regulations....................... 13
11.10 Entire Agreement..................................................... 13
11.11 Exhibits and Schedules............................................... 13
11.12 Confidentiality...................................................... 13
11.13 Successors and Assigns............................................... 13
11.14 Eminent Domain....................................................... 14
11.15 Counterparts......................................................... 14
11.16 No Third Party Beneficiary........................................... 14
11.17 Survival of Representations and Warranties........................... 14
11.18 No Recordation....................................................... 14
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Purchase Agreement and Escrow Instructions
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This PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is made and
entered into this 10th day of August, 2000 ("Effective Date"), by and between
▇▇▇▇▇▇ STEEL LAND DEVELOPMENT, INC., a Delaware corporation ("Seller"), and THE
CALIFORNIA SPEEDWAY CORPORATION, a Delaware corporation, ("Buyer") with
reference to the facts set forth below.
Article 1
RECITALS
1.1 Seller is the owner of that certain real property primarily situated
in the City of Rancho Cucamonga in the County of San Bernardino, State of
California, consisting of approximately 37.11 acres (gross) and generally
described as San Bernardino County Assessor's Parcel Numbers ▇▇▇▇-▇▇▇-▇▇, and
portions of 25 and 27 (the "Property"). The parties hereto acknowledge that the
Property was the subject of a "lot-line adjustment" which has now been
completed.
1.2 Buyer desires to purchase the Property and Seller desires to sell the
Property to Buyer upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements set forth herein
and for other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer agrees to purchase and Seller agrees to sell the
Property on the terms and conditions set forth below.
Article 2
AGREEMENT OF PURCHASE AND SALE
2.1 Purchase Price. The purchase price for the Property is $2.65 per
square foot based upon net useable acreage (the "Property Purchase Price"). It
is agreed that the net useable square feet is 1,448,805.66 square feet (subject
to adjustment as a result of any survey) making for a total Property Purchase
Price of $3,839,334.84 for the Property, subject to permitted closing
adjustments.
2.2 Payment of Purchase Price. The Purchase Price, including the Deposit,
shall be paid in immediately available good funds in accordance with the
provisions set forth below.
2.2.1 Deposit. Upon the opening of escrow in accordance with Section
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3.1 below, Buyer shall deposit into escrow the amount of Fifty Thousand Dollars
($50,000) (the "Deposit"). Unless this Agreement is terminated by Buyer on or
before the end of the Review Period, the Deposit shall be non-refundable to
Buyer at the end of the review period and released to Seller, except as
otherwise provided herein. The Deposit shall be credited and applied to the
Purchase Price at the Close of Escrow, but shall be retained by Seller without
any additional escrow instructions as its liquidated damages as provided in
Paragraph 10.1 if Escrow fails to close as a result of Buyer's default. If
Escrow fails to close as a result of Seller's default under the terms of this
Agreement or the failure of a condition precedent, other than a condition
precedent that can be satisfied by Buyer, Escrow Agent shall refund the Fifty
Thousand Dollars ($50,000) and shall pay, if applicable, the liquidated damages
as provided in Paragraph 10.1.
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2.2.2 Balance of Cash Payment. On or before one business day prior to
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the Closing Date, Buyer shall deposit the balance of the Purchase Price in cash
into escrow, which shall be released to Seller on the Close of Escrow.
Article 3
ESCROW
3.1 Opening of Escrow. Within two business days of the Effective Date of
this Agreement, Buyer and Seller shall open escrow by depositing with Chicago
Title Insurance Company, San Bernardino office ("Escrow Agent") a fully executed
original of this Agreement for use as escrow instructions and Escrow Agent shall
execute the consent of Escrow Agent and deliver a fully executed consent to
Buyer and Seller. If Escrow Agent requires additional instructions, Buyer and
Seller agree to make any such deletions, substitutions, and additions which do
not materially alter the terms of this Agreement. If there is any conflict
between the provisions of this Agreement and any additional or supplementary
Escrow Instructions, the terms of this Agreement shall control.
3.2 Delivery of Documents to Escrow.
3.2.1 Seller's Documents. On or before the Close of Escrow, Seller
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shall deposit into Escrow a grant deed signed and acknowledged substantially in
the form and content attached hereto as Exhibit "A" and incorporated herein (the
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"Grant Deed"). Provided that all terms and conditions of this Agreement have
been satisfied, Escrow Agent shall record the Grant Deed at the Close of Escrow.
Seller shall deliver on or before the Close of Escrow any other documents
required by the Escrow Agent in order to convey title to Buyer as contemplated
herein.
3.2.2 Buyer's Documents. On or before one day prior to the Close of
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Escrow, Buyer shall execute, acknowledge, deliver, and deposit into Escrow any
document reasonably required by the Escrow Agent in order to ▇▇▇▇▇ title to
Buyer as contemplated herein and to otherwise carry out the terms of this
Agreement.
3.3 Close of Escrow. Unless the parties mutually agree in writing upon a
different Closing Date, Escrow shall close no later than September 15, 2000,
subject to the satisfaction or waiver of conditions Articles 4.3 and 4.4 below.
Article 4
REVIEW PERIOD
4.1 Review Period. Buyer shall have the later of 30 days following the
Opening of Escrow or the delivery to Buyer of a Preliminary Title Report to
investigate the Property and satisfy itself in its sole and absolute discretion
as to the suitability of the Property for its acquisition (the "Review Period").
Buyer acknowledges that it has conducted some investigation of the Property
prior to entering into this Agreement. Seller shall no later than five business
(5) days after the Opening of Escrow deliver to Buyer at Buyer's notice address,
a copy of any soils reports, engineering studies, grading plans, maps, any
existing surveys, and environmental documents it may have in its possession
pertaining to the Property, and a copy of a Preliminary Title Report
("Preliminary Report"), prepared by Chicago Title Insurance Company (the "Title
Company") with respect to the Property containing such exceptions as the Title
Company would specify in the Title Policy (as defined below), along with copies
of all recorded documents referenced in the Preliminary Report ("Permitted
Exceptions"). Any and all such information furnished by Seller to
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Buyer as required by this Section 4.1 shall be confidential, and Buyer is hereby
notified of its confidentiality in accordance with Section 11.12 herein.
4.2 Review of Condition of Property. Buyer may undertake the following
activities on this Property during the Review Period:
(a) Survey. Buyer may arrange for and obtain an ALTA Survey of the
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Property at Buyer's sole expense.
(b) Environmental Study. Buyer shall have the right to conduct an
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environmental study of the Property. Any environmental study which Buyer may
undertake regarding the Property shall be at Buyer's sole expense. Seller shall
have the right to be present on site during any field investigation, receive
split samples, if any are taken, and receive a copy of all draft and final
reports. The Property shall be placed in the same condition as prior to any
such environmental study, and/or field investigation at Buyer's sole expense.
It is acknowledged that Buyer has already conducted a Phase 1 environmental
study of the Property. In addition, Buyer and any designated representative
shall have the right to review environmental information pertaining to the
Property in Seller's possession; provided, however, all such information shall
be deemed confidential in accordance with Section 11.12 herein.
(c) Biological Assessment. Buyer at Buyer's sole expense may conduct
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a biological survey assessment for Delhi Sands Flower Loving Fly and/or San
Bernardino County Kangaroo Rat on the Property. Neither Buyer nor Seller will
seek an U.S. Fish and Wildlife clearance letter. In addition, Buyer shall have
the right to review biological information pertaining to the Property in
Seller's possession; provided, however, all such information shall be deemed
confidential in accordance with Section 11.12 herein. Buyer shall not disclose
such information to others without the prior consent of Seller prior to
disclosure.
(d) Zoning. Buyer may undertake an investigation of the existing and
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possible re-zoning for the Property to determine its suitability for Buyer's
purposes.
4.3 Review of Condition of Title. Buyer shall deliver notice of
disapproval of any exception or other title matter to Seller in writing on or
before twenty one (21) days from the receipt by Buyer of the Preliminary Report
and exception documents (the "Title Review Period"). Buyer shall deliver notice
of such disapproval to Seller in writing on or before the end of the Title
Review Period or all Permitted Exceptions shall be deemed approved. If Buyer
disapproves any Permitted Exceptions, Seller may elect to remove such Permitted
Exceptions by the Close of Escrow or shall notify the Buyer in writing that such
Permitted Exceptions shall not be removed. Seller shall give Buyer notice of
its election to not remove the disapproved exceptions within three (3) days of
Seller's receipt of Buyer's notice of disapproval, whereupon Buyer shall have
three (3) days in which to notify Seller that (i) Buyer revokes its disapproval
of such exception(s) and will proceed with the purchase without any reduction in
the Purchase Price and take title to the Property subject to such exception(s)
or (ii) Buyer will terminate this Agreement without liability to Seller, and
obtain a full refund of the Fifty-Thousand ($50,000.00) deposit.
4.4 Disapproval of Contingencies. Should Buyer, on or before the end of
the Review Period, deliver in writing to Seller a Notice of Disapproval ("Notice
of Disapproval"), with a copy to the Escrow Agent, then, except for Buyer's
obligations to indemnify Seller and of confidentiality, the respective rights,
duties, and obligations of Buyer and Seller under this Agreement shall terminate
without further liability. The parties then shall immediately thereafter sign
such instructions and other instruments as may be necessary to effect the
cancellation of this Escrow, and each party shall pay its respective share (if
any) of escrow cancellation charges. Upon
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cancellation, Escrow Agent shall immediately return the funds, less applicable
escrow cancellation charges, and any documents to the parties that furnished
them (and Seller shall immediately return the Deposit to Buyer). Should Buyer
not deliver a Notice of Disapproval on or before the end of the Review Period,
then Buyer shall be deemed to have approved or waived its contingencies to the
purchase of the Property, and will consummate the contemplated purchase of the
Property, subject to Seller's performance of its obligations, as provided in
this Agreement.
Article 5
ADDITIONAL COVENANTS AND AGREEMENTS
5.1 Cooperation. Buyer and Seller acknowledge that it may be necessary to
execute documents other than those specifically referred to herein in order to
complete the acquisition of the Property. Both Buyer and Seller hereby agree to
cooperate with each other by executing such other documents or taking such other
action as may be reasonably necessary to complete this transaction in accordance
with the intent of the parties as evidenced in this Agreement.
5.2 Federal and State Withholding Requirements. The parties agree to
comply with the requirements of Section 1445 of the Internal Revenue Code,
California withholding requirements, and any regulations promulgated thereunder.
5.3 No Interest in Water Rights. Buyer shall acquire no interest in any
water rights, claims or title to water, including, without limitation, the water
rights adjudicated in the name of Seller, as successor to ▇▇▇▇▇▇ Steel
Corporation, in the San Bernardino county Superior Court, Case No. 164327,
captioned Chino Basin Municipal Water District vs. City of Chino, et al, all
riparian and appropriate rights to surface waters and all water rights
represented by water stock. Furthermore, Buyer shall not have any claim, right,
or interest in any of the water rights in Fontana Union Water Company, a mutual
water company, in which Seller owns stock and that stock (or substantially all
of such stock) is leased to Cucamonga County Water District.
5.4 Sewer Service. Seller, or a wholly owned subsidiary of Seller, will
provide sewer service to the Property subject to and in accordance with that
certain Amended and Restated Sewer Services Agreement dated as of August 10,
2000, between ▇▇▇▇▇▇ Ventures Inc. and The California Speedway Corporation First
Amendment to Amended and Restated Sewer Services Agreement substantially in the
form and content attached hereto as Exhibit "B". Any and all costs pertaining to
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the installation of any improvements or equipment, including without limitation
a lift station and appurtenant pipelines, to connect the Property to the
existing Sewer Treatment Facility described in the Sewer Services Agreement
shall be the sole expense and responsibility of Buyer. The completion of such
installation shall not be a condition to the Close of Escrow. However, the
execution and acknowledgement of Amended and Restated Sewer Agreement at such
time as Seller shall reasonably require (which may before the scheduled closing
on the Property) shall be a condition to the Close of Escrow.
5.5 Plans and Approvals. All plans, specifications, governmental
licenses, approvals and permits shall be the responsibility of Buyer at Buyer's
sole expense. Seller agrees to reasonably cooperate with Buyer in any rezoning,
annexation, permitting of subdivision or any other governmental approval or
review of the Property, provided that Seller shall not be required to incur any
third party cots unless such shall be advanced or reimbursed by Buyer.
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Article 6
PRE CLOSING OBLIGATIONS
6.1 Seller's Obligations. The costs associated with the lot-line
adjustment shall by borne by Seller. It is expressly understood and agreed that
any conditional use permit, zoning change, annexation, subdivision or any other
similar land use approval, license, or permit for any portion of the Property
shall be processed and obtained by Buyer at Buyer's sole expense. Annexation
and/or subdivision shall not be a condition to the Close of Escrow. In
addition, the Phase 1 environmental investigation conducted on behalf of Buyer
reported finding certain limited items located on the property, some of which
may constitute Hazardous Materials, as defined below. Seller shall remove prior
to the Close of Escrow, the items specified in the Phase 1 report, other than
slag, to the reasonable satisfaction of Buyer. However, in the event the
removal of such items would cost Seller more than $250,000, Seller shall have
the right to terminate this Agreement and to refund any deposit of Buyer that
may have been previously released to it. Upon removal of the Hazardous
Materials on the Property as specified in the Phase 1 report, other than slag,
Seller shall provide a certificate to Seller as of the Closing Date certifying
that to the best of Seller's knowledge, Hazardous Materials have been removed in
accordance with the terms of this Agreement.
6.2 Buyer's Obligations. Buyer shall execute, acknowledge and deliver to
Seller, prior to closing, the Amended and Restated Sewer Agreement.
Article 7
POST CLOSING OBLIGATIONS
7.1 Improvements. Seller shall have no liability or responsibility for
improvements on-site or off-site for the benefit of the Property except as set
forth in the Amended and Restated Sewer Services Agreement.
7.1.1 Fees. Except as otherwise provided in Paragraph 6.1, Buyer
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shall be responsible for and obligated to pay all fees, assessments, special
taxes or in-lieu fees encumbering the Property or required by any governmental
agency, redevelopment agency, assessment district, fee district or any other
similar governmental charges for or in connection with Buyer's purchase or
improvement of the Property. Buyer shall be responsible for its prorata share
of any prepaid expenses such as property taxes.
7.1.2 No Obligation for Governmental Approvals. Buyer shall have the
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sole responsibility for processing approvals and construction of all
improvements on the Property Unless expressly otherwise provided in this
Agreement, all expenses and responsibility associated with governmental
approvals for the development of the Property shall be the sole responsibility
of Buyer. However, Seller agrees to reasonably cooperate with Buyer in
processing such governmental approvals.
7.2 Buyer's Compliance with Environmental Laws. Buyer specifically
covenants and agrees to timely and fully comply with Environmental Laws, and
shall not allow the release of Hazardous Materials (as defined below) on or in
the Property (including, but not limited to, surrounding property, the surface,
subsurface, water and air) with Hazardous Materials. Furthermore, Buyer shall
not use, store, handle or treat Hazardous Materials on the Property except in
full compliance with Environmental Laws (as defined below).
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7.3 Indemnification for Noncompliance. Buyer specifically covenants and
agrees to timely and fully comply with Environmental Laws, and shall not allow
the release of Hazardous Materials on the Property (including, but not limited
to, the Building, surrounding property, the surface, subsurface, water and air).
Furthermore, Buyer shall not use, store, handle or treat Hazardous Materials on
the Subject Property except in full compliance with Environmental Laws. Buyer
shall indemnify, defend, and hold Seller and its officers, directors,
shareholders, partners, employees, Affiliates, and assigns (collectively the
"Indemnified Parties") harmless from and against all liability, obligations,
claims, damages, penalties, losses, causes of action, costs, and expenses
(including attorneys' fees, expert witness fees, consulting and other
professional fees) imposed upon incurred by or asserted against the Indemnified
Parties as a result of any violation or asserted violation of or failure to
timely or fully comply with Environmental Laws or as a result of any release of
Hazardous Materials on the Property, adjacent property owned by Seller or its
Affiliates, or other property (including, but not limited to, improvements,
surface, subsurface water and air) or any allegations related thereto.
This indemnification shall exclude Hazardous Materials that exist on the
Property prior to the Close of Escrow, which are found within the first seven
years after the Close of Escrow.
7.4 Environmental Related Definitions.
7.4.1 Hazardous Materials Defined. For the purposes of this
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Agreement, "Hazardous Materials" shall mean and refer to any material or
substance which is (i) defined or listed as a "hazardous waste", "extremely
hazardous waste", "restrictive hazardous waste", "hazardous material",
"hazardous chemical", "extremely hazardous substance", "toxic substance", "toxic
pollutant", "pollutant", "pollution", "regulated substance", "pesticide",
"contaminant", "hazardous air pollutant", or words of similar import, or
considered a waste, condition of pollution, or nuisance, pursuant to the laws of
California and/or the United States: (ii) gasoline, diesel fuel, oil, used oil,
petroleum, or a petroleum product or fraction thereof; (iii) asbestos and
asbestos-containing construction materials as defined by federal or state law,
by weight, of asbestos; (iv) substances known by the State of California or the
United States to cause cancer and/or reproductive toxicity; (v) toxic,
corrosive, flammable, infectious, radioactive, mutagenic, explosive or otherwise
hazardous substances which are or become regulated by any governmental agency or
instrumentality of the United States, or any state or any political subdivision
thereof; (vi) polychlorinated biphenyls (PCBs); (vii) urea formaldehyde foam
insulation; (viii) all hazardous air pollutants or materials known to cause
serious health effects (including, without limitation, volatile hydrocarbons,
pesticides, herbicides and industrial solvents) and/or (ix) substances which
constitute a material health, safety or environmental risk to any Person or
property. It is the intent of the Parties hereto to construe the term
"Hazardous Materials" broadly.
7.4.2 Environmental Laws Defined. For the purposes of this
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Agreement, "Environmental Laws" shall mean and refer to all federal, state and
local laws, rules, regulations, ordinances, guidelines, permit conditions,
orders, consent decrees and other requirements relating to health, safety,
hazardous substances, industrial hygiene and environmental conditions or
protections applicable to the Property and the Project's wild life and fish, if
any, and their habitats. Such laws and regulations include, but are not limited
to, the Resource Conservation and Recover), Act, 42 U.S.C. (S)6901 et seq., as
amended from time to time; the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S)9601 et seq., as amended from time
to time; the Toxic Substances Control Act, 15 U.S.C. (S)2601 et seq., as amended
from time to time; the Clean Water act, 33 U.S.C. (S)466 et seq., as amended
from time to time; the Clean Air Act, 42 U.S.C. (S)7401 et seq., as amended from
time to time; the Emergency Planning and Community, Right-to-Know Act, 42 U.S.C.
(S)1101 et seq., as amended from time to time; the Hazardous Materials
Transportation Act, 49 U.S.C. (S)5101 et seq., as amended from time to time; the
Federal Water
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Pollution Control Act, 33 U.S.C. (S)1251 et seq., as amended from time to time;
the Federal Insecticide, Fungicide and Rodenticide Act, & U.S.C. (S)136 et seq.,
as amended from time to time; the Oil Pollution Act of 1990, 33 U.S.C. (S)2701
et seq., as amended from time to time; the Safe Drinking Water Act, 42 U.S.C.
(S)300 et seq., et seq., as amended from time to time; the Pollution Prevention
Act 29 U.S.C. (S)651 et seq., as amended from time to time; state and federal
super lien and environmental clean-up programs; U.S. Department of
Transportation regulations; Endangered Species Act, 16 U.S.C. (S)1531 et seq.,
as amended from time to time; all applicable state and local statutes and
ordinances with a scope or purpose similar to the foregoing; and all regulations
promulgated pursuant to said laws.
Article 8
ACKNOWLEDGMENTS, REPRESENTATIONS, WARRANTIES AND INDEMNITIES
8.1 Buyer's Acknowledgments, Representations, Warranties and Indemnity.
8.1.1 Purchase "As Is", Release and Indemnity. Except as set
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forth in this Agreement: (a) Buyer is relying solely, upon its own inspections,
investigations, and analyses of the Property, in entering into this Agreement
and is not relying in any way upon any representations, statements, agreements,
warranties, studies, reports, descriptions, guidelines or other information or
material furnished by Seller or its representatives, whether oral or written,
express or implied, of any nature whatsoever regarding any such matters; (b)
Buyer has made such independent investigations and analyses as Buyer deems
necessary or appropriate concerning Buyer's proposed use and development of the
Property; (c) Buyer is buying the Property on an "as is-all faults" basis,
except for environmental conditions existing before Close of Escrow; (d) no
patent or latent condition affecting the Property in any way (including, without
limitation, the effects of Hazardous Materials, unless the Hazardous Materials
are reported in the environmental studies provided or otherwise shown within
seven years of the Close of Escrow to have been present on the Property before
the Close of Escrow) (collectively, the "Property Conditions"), shall give rise
to any right of damages, specific performance, rescission or other claims by
Buyer against Seller; and (e) Buyer hereby assumes the risk of any and all
liabilities, claims, demands, suits, judgments, losses, damages, expenses
(including, without limitation, attorney's fees) and other obligations arising
out of or incurred in connection with the effect of the Property Conditions
(collectively, the "Assumed Risks") Seller shall have no obligation to correct
any conditions or alleged defects discovered by Buyer in the course of its
investigations or inspections or thereafter with respect to the Property except
for Hazardous Materials above the standards requiring remediation shown to exist
within seven years of the Close of Escrow by clear and convincing evidence to
have been present on the Property before the Close of Escrow. There shall be no
remediation, indemnification, or legal obligation asserted against Seller after
the expiration of seven (7) years after the Close of Escrow. Notwithstanding
the above, Seller shall only be obligated to remediate any Hazardous Materials
on the Property pre-existing the Closing Date requiring remediation under
applicable Environmental Laws, except those attributable to Buyer, its agents,
and their activities, to industrial standards and not residential standards.
Furthermore, if Seller is required to remediate any Hazardous Materials, Buyer
agrees that it will allow the placement of a Covenant to Restrict Property which
would prohibit the use of the Property for residences; day care; schools, and
other similar uses. Buyer shall not be entitled to any damages or expenses as a
result of the placement of such a covenant on the Property.
8.1.2 Assumption Release and Indemnity. Except as set forth in this
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Agreement, Buyer for itself and its successors and assigns (the "Buyer's Related
Parties") with respect only to the Property: (i) releases, waives, discharges,
covenants not to ▇▇▇ Seller and all current and future officers, directors,
shareholders, employees, agents, affiliates, partners, successors and assigns of
Seller (collectively the "Released Parties"), and each of them for any and all
liabilities
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or obligations concerning the Assumed Risks except that for a period of seven
(7) years following the Close of Escrow Seller shall remain responsible and
liable for Hazardous Materials on the Property on the Close of Escrow that
require Remediation under applicable Environmental Laws at standards in excess
of industrial standards; and (ii) waives the benefits of California Civil Code
Section 1542, except with regard to Seller's responsibility and liability for
Hazardous Materials on the Property as of the Close of Escrow for a period of
seven (7) years following the Close of Escrow as provided herein, which provides
as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
8.1.3 Buyer's Authority. Buyer represents and warrants to Seller
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that it and the individuals executing this Agreement for Buyer have the legal
power, right and authority to enter into this Agreement and to consummate the
transaction contemplated hereby and this Agreement is a binding obligation of
Buyer subject to bankruptcy and other similar laws affecting creditors.
8.1.4 No Finders. Buyer represents and warrants to Seller that it
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has not employed a broker in connection with the contemplated transaction.
8.2 Seller's Acknowledgments, Representations, Warranties and Indemnity
Except as expressly stated in this Agreement, seller makes no other
representations or warranties either express or implied.
8.2.1 Seller's Authority. Seller represents and warrants to Buyer
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that it and the individuals executing this Agreement for Seller have the legal
right and authority to enter into this Agreement and to consummate the
transaction contemplated hereby and this Agreement is a binding obligation of
Seller subject to bankruptcy and other similar laws affecting creditors.
8.2.2. Ownership of the Property. Seller is the owner of o the
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Property and the Property as of the Closing Date shall be free and clear of all
liens, restrictions, easements, leases, tenancies, charges, rights of use or
possession or of any other title objections except the Permitted Exceptions and
those exceptions as may be otherwise mutually agreed upon by the Parties.
8.2.3. No Finders. No finder, broker or other intermediary has been
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used by Seller in connection with the transactions contemplated by this
Agreement and no person will be entitled to a finder's fee or brokerage
commission upon consummation of such transactions or otherwise in connection
therewith. Seller agrees to indemnify and hold harmless Buyer from and against
any finder's fee or brokerage commission arising out of the conduct of Seller.
8.2.4 Eminent Domain. To the best of Seller's knowledge, Seller has
--------------
received no written notice from any governmental authority that eminent domain
proceedings for the condemnation of the Property or any part in thereof are
pending.
8.2.5 Litigation. To the best of Seller's knowledge, (except as
----------
disclosed in writing by Seller to Buyer or Buyer's counsel) Seller has received
no written notice of any threatened or pending litigation against Seller which
would materially and adversely affect the Property or Seller's obligations
pursuant to this Agreement.
8.2.6 No Conflict. To the best of Seller's knowledge, neither
-----------
Seller's execution of this Agreement nor performance by Seller of any of its
obligations hereunder including, without
8
limitation, the transfer, assignment and sale of the Property contemplated by
this Agreement (a) violates or shall violate any written or oral contract,
agreement or instrument to which Seller is a party or is bound or which affects
the Property or any part of it, or (b) shall constitute or result in violation
or breach by Seller of any judgment, order, writ, injunction, or decree issued
or imposed upon Seller, or result in violation of any applicable laws; and no
approval, consent, order, authorization, designation, filling (other than
recording), required in conjunction with Seller's execution of this Agreement
and performance of its obligations hereunder.
8.2.7 Environmental Warranty. To the best of Seller's actual
----------------------
knowledge, there will be no Hazardous Materials on or in the Property in
sufficient quantities so as to require remediation as of the Closing under
applicable Environmental Laws.
8.2.8 Environmental Indemnity. For a period of seven (7) years from
-----------------------
the Close of Escrow, Seller agrees to defend, indemnify and hold harmless Buyer
and all current and future officers, directors, shareholders, employees and
affiliates, successors and assigns of Buyer (collectively the "Buyer Indemnified
Parties") and each of them from any and all liabilities, obligations or costs
(including attorneys' fees) as a result of a breach of Section 8.2.7 or the
presence of Hazardous Materials being released on or in the Property prior to
the date of Closing. Any environmental remediation or obligation undertaken
pursuant to this indemnity provision shall be subject to, limited by and
performed in accordance with the provisions of Section 8.1.1. Seller shall have
no indemnification or remediation obligation after the seventh (7th) anniversary
of the Closing except as to claims made prior to such date.
8.2.9 Copies of Documents. The documents presented to Buyer by Seller
pursuant to this Agreement are true, correct, and complete copies of all
material documents in Seller's possession or control that can be reasonably
retrieved and that are not subject to the attorney-client privilege, the
attorney work product privilege, or any other privilege.
8.2.10 Lot-Line Adjustment. The "Lot-Line" adjustment for the
Property has been completed and approved by the County of San Bernardino Land
Use Services/Planning Division.
Article ▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
9.1 Close of Escrow. Escrow Agent shall close the Escrow (the "Close of
Escrow") on or before the Closing Date WHEN AND ONLY WHEN each of the following
conditions has been, or upon such Closing shall be, satisfied or waived.
9.1.1 Supplements to Preliminary Report. If any title exceptions are
---------------------------------
recorded against the Property except as a result of Buyer's actions before the
Close of Escrow in addition to the Permitted Exceptions or instruments disclosed
in the Preliminary Report, Buyer shall have approved such exceptions within
three (3) days after receipt of a supplemental report showing such exceptions or
this Agreement shall terminate and Seller shall refund the Deposit to the Buyer.
9.1.2 Title Policy. Escrow Agent shall be unconditionally committed
------------
to procure from the Title Company, at Seller's expense, a CLTA owners policy of
title insurance or, at Buyer's request, an ALTA Owners Policy of title insurance
(the "Title Policy") with a liability limit in the amount of the Purchase Price
and insuring fee title vested in Buyer free and clear of any liens, encumbrances
and interests except: (i) general, special and supplemental taxes that are not
yet payable; (ii) those Permitted Exceptions as approved by Buyer; (iii) those
rights, interests and
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easements, if any, reserved by Seller in Seller's Grant Deed; (iv) the matters
described in the printed form portion of the Title Policy; and (v) any items
caused by the acts or omissions of Buyer or permitted to be placed of record by
Buyer as of the close of escrow. As provided in Section 9.5, the increased
premium for an ALTA Owner's Policy shall be paid by Buyer.
9.1.3 Buyer's Performance, Representations and Warranties. Buyer
---------------------------------------------------
shall have duly performed each and every undertaking and agreement to be
performed by it hereunder and under the terms and conditions of the Agreement,
and Buyer's representations and warranties shall be true and correct in all
material respects at and as of the Close of Escrow. Buyer shall provide Seller
an Officer's certificate, certifying the above.
9.1.4 Deposit of Purchase Price. Buyer shall have deposited the full
-------------------------
Purchase Price in Escrow. Upon the Close of Escrow, the full Purchase Price
(less the Deposit) shall be delivered to Seller.
9.1.5 Deed to the Property. Seller shall have deposited into Escrow
--------------------
the executed and acknowledged Grant Deed to the Property in recordable form.
Upon the Close of Escrow the Escrow Agent shall cause the Grant Deed to be
recorded in the Official Records of San Bernardino County, California.
9.1.6 Amended and Restated Sewer Agreement. Buyer and Seller shall
------------------------------------
have executed and delivered two (2) copies of the Amended and Restated Sewer
Agreement.
9.17 Certification Regarding Hazardous Materials. Seller shall
-------------------------------------------
have delivered its certificate regarding Hazardous Materials as provided in
Section 6.1.
9.18 Zoning. Buyer shall have satisfied itself with regard to
------
the zoning of the Property for Buyer's anticipated intended use; provided,
however, if Buyer has not resolved this zoning contingency within sixty (60)
days after the date of this Agreement, Seller shall have the right to terminate
this Agreement pursuant to the provisions of Section 9.2 hereof.
9.2 Termination Based on Failure to Close by Closing Date. If Escrow
fails to close by the Closing Date for any reason other than Buyer's or Seller's
default, then, except for Buyer's obligations to indemnify Seller, the
respective rights, duties and obligations of Buyer and Seller under this
Agreement shall forthwith terminate without further liability. The Parties
shall immediately thereafter sign such instructions and other instruments as may
be necessary to effect the cancellation of this Escrow. Upon cancellation,
Seller shall refund the Deposit to Buyer, Escrow Agent shall immediately return
any funds it is then holding, less applicable escrow cancellation charges, and
documents to the parties that furnished them. Notwithstanding the provisions of
this Paragraph, the Parties may extend the Closing Date by their mutual written
agreement in which event the provisions of this Paragraph shall apply to the
extended closing date with the same force and effect as the Closing Date.
9.3 Prorations. Property taxes, special assessments, utility charges and
other similar amounts with respect to the Property shall be prorated as of the
Closing Date by the Escrow Agent, in accordance with the Escrow Agent's standard
practices and as shall be mutually agreed upon by Buyer and Seller prior to the
Close of Escrow.
9.4 Seller's Fees and Costs. Seller will pay: (i) the fee for a CLTA
Owners Title Policy; (ii) one-half of Escrow Agent's escrow fee; (iii) usual
Seller's document-drafting and recording charges; (iv) Documentary Transfer Tax
in the amount Escrow Agent determines to be required by law.
10
9.5 Buyer's Fees and Costs. Buyer will pay: (i) one-half of Escrow
Agent's escrow fee; (ii) usual Buyer's document-drafting and recording charges;
and (iii) the additional premium for an ALTA Owners Title Policy and
endorsements to the Policy, should Buyer request other than a CLTA Owners Title
Policy.
Article 10
REMEDIES
10.1 Seller's Liquidated Damages. IF ESCROW FAILS TO CLOSE DUE TO BUYER'S
DEFAULT UNDER THIS AGREEMENT, SELLER WILL BE DAMAGED AND WILL BE ENTITLED TO
COMPENSATION FOR THOSE DAMAGES. SUCH DAMAGES WILL, HOWEVER, BE EXTREMELY
DIFFICULT AND IMPRACTICAL TO ASCERTAIN. IF ESCROW FAILS TO CLOSE DUE TO BUYER'S
DEFAULT UNDER THIS AGREEMENT, PROVIDED SELLER IS NOT ALSO IN DEFAULT HEREUNDER,
THE SUM REPRESENTED BY THE DEPOSIT MADE UNDER ARTICLE 2.2.1 SHALL BE DEEMED TO
CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S DAMAGES UNDER THE PROVISIONS OF
SECTION 1671 OF THE CALIFORNIA CIVIL CODE AND SELLER'S SOLE AND EXCLUSIVE REMEDY
IN THE EVENT OF THE FAILURE TO CLOSE ESCROW RESULTING FROM BUYER'S DEFAULT SHALL
BE LIMITED TO SUCH AMOUNTS PROVIDED, HOWEVER, THE PARTIES AGREE THAT, IN NO
EVENT, SHALL THIS LIQUIDATED DAMAGES PROVISION APPLY TO ANY BREACH OF BUYER'S
OBLIGATIONS UNDER ANY OTHER INDEMNITY PROVISION OF THIS AGREEMENT. BY INITIALING
THIS PROVISION IN THE SPACES BELOW. SELLER AND BUYER EACH SPECIFICALLY AFFIRM
THEIR RESPECTIVE AGREEMENTS CONTAINED IN THIS PARAGRAPN 10.1.
BUYER'S INITIAL __________ SELLER'S INITIALS ___________
10.2 Buyer's Liquidated Damages. IF SELLER DEFAULTS UNDER ANY PROVISIONS
OF THIS AGREEMENT, BUYER, WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION
FOR THOSE DAMAGES. SUCH DAMAGES WILL, HOWEVER, BE EXTREMELY DIFFICULT AND
IMPRACTICAL TO ASCERTAIN. IF ESCROW FAILS TO CLOSE AS A RESULT OF SELLER'S
DEFAULT, ONE HUNDRED THOUSAND DOLLARS ($100,000) SHALL CONSTITUTE A REASONABLE
ESTIMATE OF BUYER'S DAMAGES AND SUCH DAMAGES SHALL BE THE SOLE AND EXCLUSIVE
REMEDY FOR SELLER'S DEFAULT. BUYER'S SOLE AND EXCLUSIVE REMEDY IS THE PAYMENT OF
ONE HUNDRED THOUSAND DOLLARS ($100,000), AND HEREBY WAIVES ANY ACTIONS AGAINST
SELLER OR THE PROPERTY FOR SPECIFIC PERFORMANCE AND CONSEQUENTIAL DAMAGES;
PROVIDED, HOWEVER, THE PARTIES AGREE THAT IN NO EVENT SHALL THIS LIQUIDATED
DAMAGES PROVISION APPLY TO PAY BREACH OF SELLER'S OBLIGATIONS UNDER ANY OTHER
INDEMNITY PROVISION OF THIS AGREEMENT.
BY INITIALING THIS PROVISION IN THE SPACES BELOW, SELLER AND BUYER
EACH SPECIFICALLY AFFIRM THEIR RESPECTIVE AGREEMENTS CONTAINED IN THIS PARAGRAPH
10.2.
BUYER'S INITIAL __________ SELLER'S INITIALS ___________
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Article 11
GENERAL PROVISIONS
11.1 Time of the Essence and Strict Construction. Time is of the
essence pursuant to this Agreement for the performance and observance of all
obligations of Seller and Buyer hereunder and all provisions of this Agreement
shall be strictly construed.
11.2 Notice and Demands. All notices or demands required or permitted
pursuant to this Agreement shall be in writing, signed by the party giving the
same, and shall be deemed properly given and received when personally served or
upon the earlier of (i) receipt or (ii) rejection, if sent by registered or
certified mail, postage prepaid or by nationally recognized overnight courier
service, such as Federal Express, and addressed to the intended recipient at its
address as set forth below or at any other address of which such party gives the
other party notice in accordance with the provisions of this Section 11.2.
If to Buyer: The California Speedway Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
With copy to: Penske Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
If to Seller: ▇▇▇▇▇▇ Steel Land Development Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Vice President - Real Estate
With copy to: ▇▇▇▇▇▇ Steel Land Development, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and General Counsel
11.3 Captions for Convenience. The headings and captions of this
Agreement are for convenience and reference only and shall not be considered in
interpreting the provisions hereof.
11.4 Severability. Any provision in this Agreement which is illegal,
invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such illegality, invalidity or unenforceability
without invalidating the remaining provisions hereof or affecting the legality,
validity or enforceability of such provision in any other jurisdiction. Seller
and Buyer shall negotiate in good faith to replace any illegal, invalid or
unenforceable provision of this Agreement with a legal, valid and enforceable
provision that, to the extent possible, will preserve the economic bargain of
this Agreement, or shall otherwise amend this Agreement, including the provision
relating to choice of law, to achieve such result.
11.5 Governing Law. This Agreement shall be interpreted and enforced
according to the laws of the State of California.
11.6 No Oral Amendment or Modification. No provision of this
Agreement may be amended or modified except to the extent any such amendment or
modification is expressly set
12
forth in a written instrument executed by the party against whom the amendment
or modification is sought.
11.7 Relationship of Seller and Buyer. Nothing contained in this
Agreement shall be deemed or construed as creating the relationship of principal
and agent, partnership, or joint venture and no provision in this Agreement end
no act of Seller or Buyer shall be deemed to create any relationship other than
that of Seller and Buyer. Without limiting the generality of the foregoing, all
obligations of Seller and Buyer with respect to third parties shall be
independent.
11.8 Attorneys' Fees. If it becomes necessary for Seller or Buyer to
bring an action (including any form of dispute resolution), either at law or in
equity, to enforce or interpret the provisions of this Agreement, the prevailing
party in such action shall be entitled to recover its reasonable attorneys' fees
and other professional fees and costs of all types, as a part of any judgment
therein, in addition to any other award which may be granted.
11.9 Amended and Successor Statutes and Regulations. All references
in this Agreement to a statute or regulation or section of same, shall include
future amendments and successor statutes, regulations, or sections thereof, as
applicable, and all references in this Agreement to any local, state or federal
government commission, department or agency or instrumentality or court shall
include their successors.
11.10 Entire Agreement. This Agreement and the exhibits and schedules,
if any, attached hereto contains all of the agreements and understanding with
respect to the matters covered hereby, and no prior agreements, oral or written,
or understandings, representations, or warranties of any nature or kind what so
ever pertaining to such matters shall be effective for any purpose unless
expressly incorporated into the provisions of this Agreement or the exhibits
attached hereto.
11.11 Exhibits and Schedules. All exhibits and schedules which are
referred to in this Agreement are incorporated into this Agreement as though
fully set forth herein.
11.12 Confidentiality. If either Party gives notice to the other Party
that certain of its information is being furnished or for which access is being
given to the other Party on a confidential basis, then, to the extent that such
information is disclosed or made available to it, the other Party shall
thereafter treat and maintain the same as confidential information and shall not
use it or disclose it to others without the prior consent of the Party giving
notice; provided, however, that this provision shall not apply to (a) disclosure
or use as is necessary to perform the provisions of this Agreement (but only on
a confidential basis which is satisfactory to the party giving notice) and (b)
disclosure or use which is required or compelled by law. Notwithstanding the
foregoing, this Section 11.12 shall not apply to any information which the Party
to which the information has been furnished can show: (i) has been published or
become part of the public domain other than by the conduct of such Party, its
officers, employees or agents; (ii) has been furnished or made known to such
Party by third parties (other than those acting directly or indirectly on behalf
of such Party,) as a matter of legal right and without restriction on
disclosure; or (iii) was lawfully in such Party's possession before the
disclosure by the disclosing Party.
11.13 Successors and Assigns. Buyer may assign or otherwise transfer
any of its rights or obligations under this Agreement without obtaining the
prior written consent of Seller. Such assignment shall not release Buyer or
Buyer's assignee from its obligations hereunder. Seller may, at any time, assign
or otherwise transfer its rights and obligations under this Agreement without
the consent of Buyer. Such assignment shall not release Seller or Seller's
assignee from its obligations hereunder. Subject to the restrictions and
prohibitions on assignment each and all of the covenants
13
and conditions of this Agreement shall inure to the benefit of and shall be
binding upon the successors in interest of Buyer and Seller, as applicable and,
subject to the restrictions on transfers herein provided, their successors,
heirs, representatives and assigns.
11.14 Eminent Domain. If, prior to the Close of Escrow, all or any
portion of the Property is taken or appropriated by any public or quasi-public
authority under the power of eminent domain or such an eminent domain action is
threatened pursuant to a resolution of intention to condemn filed by any public
entity, and if such taking will materially and adversely affect the Property,
then Buyer may terminate this Agreement without further liability hereunder and
receive a refund of its Deposit and documents deposited herein. If Buyer does
not timely terminate this Agreement or if a partial taking of the Property which
does not materially and adversely affect the Property occurs, then this
Agreement shall remain in full force and effect and upon the Closing Date Buyer
shall receive from Seller any award paid for that portion of the Property taken
or the right to an award if not paid as of the Closing Date. Buyer must elect to
terminate or maintain the Agreement by notice in writing to Seller with twenty
(20) days after written notice by Seller of a threatened taking or it shall be
deemed that Buyer has elected not to terminate this Agreement. Buyer may also
have the right to seek an award of condemnation for any future loss of revenues
it may have.
11.15 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
11.16 No Third Party Beneficiary. This Agreement is not for the
benefit of any person or entity other than Buyer and Seller.
11.17 Survival of Representations and Warranties. The representations
and warranties of Buyer and Seller shall terminate on the seventh (7/th/)
anniversary of the Closing.
11.18 No Recordation. This Agreement shall not be recorded except with
the express written consent of both parties hereto.
IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be
executed by their respective duly authorized representative as of the day and
year first above written.
"Seller" "Buyer"
▇▇▇▇▇▇ Steel Land Development, Inc. The California Speedway Corporation
a Delaware corporation a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President - General Counsel Its: Vice President - Special Projects
-------------------------------- ---------------------------------
14