5
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT, made as of the "Effective Date" (as
defined in Section 16(g) below), by and between Harold's Stores
Inc., an Oklahoma corporation, and Corner Properties, Inc., an
Oklahoma corporation (hereinafter collectively referred to as
"Seller"), and H.D. Investments, L.L.C., an Oklahoma limited
liability company (hereinafter referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller desires to sell and Purchaser desires
to purchase those two certain tracts of real property, including
any buildings, structures and improvements located on such real
property (but excluding any and all personal property, equipment,
fixtures and inventory owned by Seller or its affiliates),
located in the State of Oklahoma, County of Cleveland and City of
▇▇▇▇▇▇, being more particularly described in Exhibit A attached
hereto and hereby made a part hereof, and being commonly known as
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ together
with all and singular the rights, easements and appurtenances
pertaining to such real property (hereinafter referred to as the
"Property");
NOW, THEREFORE, for and in consideration of the mutual
covenants and benefits contained herein, Seller agrees to sell
and Purchaser agrees to purchase all of Seller's right, title and
interest in and to the Property on the following terms and
conditions:
1. Purchase Price. The purchase price of the Property
shall be One Million Two Hundred Fifty Thousand and No/100
Dollars ($1,250,000.00). At the closing of the purchase and sale
hereunder (hereinafter referred to as the "Closing"), the
purchase price (less a credit for the ▇▇▇▇▇▇▇ Money, as
hereinafter defined, and subject to the prorations set forth
herein) shall be paid by Purchaser to Seller by wire transfer of
immediately available funds into a bank account designated by
Seller.
2. ▇▇▇▇▇▇▇ Money. Within two (2) days after the Effective
Date, Purchaser shall deliver to Cleveland County Abstract, at
its office at ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as "Escrow Agent" or "Title Company") the sum of
Twenty Five Thousand and No/100 Dollars ($25,000.00) by cashier's
check or by wire transfer of immediately available funds as the
▇▇▇▇▇▇▇ money. Such amount shall be referred to herein as
"▇▇▇▇▇▇▇ Money". If the ▇▇▇▇▇▇▇ Money is not deposited on a
timely basis as provided herein, this Agreement at the sole
option of Seller will terminate at Seller's election upon written
notice to Purchaser. The Escrow Agent shall hold the ▇▇▇▇▇▇▇
Money in an interest bearing account and disburse the ▇▇▇▇▇▇▇
Money (which shall include any interest earned thereon) as herein
provided.
3. Title; Survey.
(a) Title.
(i) Purchaser shall have until the
expiration of thirty (30) days from the Effective Date to obtain
from the Title Company, a commitment for title insurance (the
"Purchaser's Commitment") and to notify Seller by written
statement of all objections or defects, if any, to Seller's title
to the Property, other than such encumbrances set forth on
Exhibit B attached hereto (hereinafter referred to as the
"Permitted Exceptions"). Failure of Purchaser to notify Seller
of such objections or defects, if any, prior to the expiration
said thirty (30) day period shall constitute a waiver of any
objections or defects to Seller's title appearing of record as of
the effective date of the Purchaser's Commitment, and any such
objections or defects shall become Permitted Exceptions. If
Purchaser should notify Seller of any such objections or defects
prior to the expiration of said thirty (30) day period, Seller
shall have the right either (x) to cure or remove any such
objections or defects prior to Closing or (y) to notify Purchaser
prior to Closing that Seller is unable or unwilling to cure such
objections or defects.
(ii) In the event that Seller so notifies
Purchaser pursuant to subsection (i) above that it is unable or
unwilling to cure any objections or defects, then Purchaser shall
have the option, exercisable within fifteen (15) days after such
notification by Seller, of (x) waiving such objections or defects
and agreeing to take title to the Property subject to such
objections or defects without any adjustment to or deduction from
the purchase price or (y) terminating this Agreement by notice to
Seller and Escrow Agent, in which latter case the Escrow Agent
shall return the ▇▇▇▇▇▇▇ Money (less $100.00 which shall be
delivered to Seller in consideration for entering into this
Agreement) to Purchaser, whereupon neither party shall have any
further rights, duties, obligations or liabilities hereunder,
except for Purchaser's indemnifications contained in Sections 4
and 6 below. Nothing contained herein shall waive or limit
Purchaser's rights to object to any title objections or defects
appearing of record after the effective date of Purchaser's
Commitment.
(b) Survey. During the Inspection Period (as hereinafter
defined), Purchaser may, at its sole option and expense, cause an
accurate boundary and physical survey of the Property (the
"Survey") to be prepared by a land surveyor or engineer licensed
in the State in which the Property is located. In the event
Purchaser obtains such Survey it shall provide Seller with a copy
thereof, at no expense to Seller, within ten (10) days after
obtaining the Survey.
4. Inspection Period.
(a) Purchaser, its agents, employees, independent contractors
and representatives shall have the right until the date which is
thirty (30) days after the Effective Date (the "Inspection
Period") to enter the Property for the purpose of inspecting and
examining the Property, and for the purpose of any other
examinations that Purchaser may deem necessary or appropriate,
including preparation of the Survey. Purchaser shall give Seller
reasonable advance notice of the specific days, times and
purposes for which Purchaser, and/or its agents, contractors and
employees will enter the Property. Purchaser shall not interfere
with Seller's business operations conducted at the Property
during such entries and Purchaser shall comply with Seller's
reasonable requests pertaining to such entries. Notwithstanding
any provision contained in this Agreement to the contrary, in the
event that Purchaser determines that the results of Purchaser's
inspection and examination of the Property, in the sole and
absolute discretion of the Purchaser, have not been satisfactory,
then Purchaser may elect to terminate this agreement by
delivering written notice of such termination to Seller prior to
the expiration of the Inspection Period. Upon any such
termination, the sum of $100 of the ▇▇▇▇▇▇▇ Money shall be paid
to Seller in full consideration of the rights granted to
Purchaser under this agreement and the balance of the ▇▇▇▇▇▇▇
Money shall be promptly returned to Purchaser, whereupon this
Agreement shall then become null and void, and neither Purchaser
nor Seller shall have any further duty, obligation, or liability
whatsoever under this Agreement. If Purchaser fails to terminate
this Agreement as provided in this paragraph, Purchaser shall be
deemed to have elected to purchase the Property "as-is" (other
than the warranties of title contained in the special warranty
deed), and will have no further right to terminate this Agreement
except as otherwise expressly provided herein.
(b) Purchaser hereby agrees to repair any damage, at its sole
cost and expense, caused by Purchaser, it agents, employees,
contractors, representatives and/or invitees and Purchaser hereby
indemnifies and holds Seller harmless from and against any and
all loss, liability, cost, judgment, claim expense or damage
(including but not limited to attorneys' fees and expenses and
court costs) arising from the actions of Purchaser or its agents,
employees, contractors, representatives and/or invitees pursuant
to this Section 4. Notwithstanding any other provisions
contained in this Agreement, the indemnity contained herein shall
survive the Closing or any cancellation or termination of this
Agreement.
(c) Within seven (7) days after the Effective Date, Seller
agrees to provide Purchaser, but only to the extent Seller has
same readily available and in its possession, copies or originals
of the following items:
(i) a survey of the Property
(ii) a site plan of the Property
(iii) the plans and specifications for any buildings
constructed
on the Property
(iv) the most recent real estate tax bills for the Property
(v) an appraisal of the Property
(vi) the Certificate of Occupancy for the Property
(vii) any title insurance policies covering the Property
(viii) any abstracts of title to the Property
Seller makes no warranty or representation as to whether or not
Seller has any of such items or whether or not same are readily
available, nor does Seller make any warranty or representation as
to the factual content of the above items or the accuracy of any
matters contained or set forth in such items if Seller does
provide them to Purchaser. In the event the transaction
contemplated by this Agreement fails to close for any reason,
Purchaser shall return all of the items provided to Purchaser by
Seller hereunder within five (5) days after written request from
Seller.
5. Closing and Closing Date.
(a) The Closing shall occur on the thirtieth
(30th) day after the expiration of the Inspection Period at the
offices of Escrow Agent or on such earlier date or location as
may be mutually agreed to by the parties hereto. At Closing each
party shall execute and deliver all documents necessary to effect
and complete the Closing, including but not limited to, the
documents expressly referred to in this Section 5 and in Section
16 (j). In the event that the lease referred to in Section 16 (j)
has not been agreed to and is not executed for any reason by
Purchaser and Seller at Closing, Seller or Purchaser may
terminate this Agreement, whereupon the ▇▇▇▇▇▇▇ Money shall be
returned to Purchaser and the parties shall have no further
rights or obligations hereunder, except as may specifically
survive such termination.
(b) At Closing, Purchaser shall:
(i) pay the purchase price, less a credit
for the amount of the ▇▇▇▇▇▇▇ Money, referred to in Section 4(d)
and all sums prorated hereunder, and Escrow Agent shall pay the
▇▇▇▇▇▇▇ Money and all interest earned thereon, if any, to Seller;
(ii) Intentionally Deleted
(c) At Closing, Seller shall execute and deliver
to Purchaser:
(i) an Oklahoma standard form special
warranty deed prepared by the Title Company conveying the
Property to Purchaser subject to the Permitted Exceptions
thereto, at Seller's expense;
(ii) Intentionally Deleted
(iii) an owner's affidavit in form
reasonably acceptable to Purchaser's title insurer to cause a
standard Owner's policy of title insurance to be issued;
(iv) an affidavit stating Seller's federal
income tax identification number and certifying that Seller is
not a "foreign person" within the meaning of Section 1445 of the
Internal Revenue Code of 1986, as amended; and
(d) At Closing, Purchaser shall pay the entire premium for
Purchaser's owner's title insurance policy, as well as all
recording fees, the cost of any endorsements, deletions or
modifications of the owners title policy, any survey costs, all
costs related to Purchaser's inspection of the Property all
escrow, abstracting and other fees charged by the Title Company,
the cost of all documentary stamps and documentary stamp taxes,
the cost of all revenue stamps, all recording fees and all costs
incurred in connection with any financing obtained by Purchaser
in connection with its purchase of the Property and the other
charges typically paid by purchasers in transactions of this
nature in the City and State in which the Property is located.
Real estate ad valorem taxes and any special assessments
applicable to the Property for the year of sale shall be prorated
as of the date of Closing based upon the actual tax bills for the
current year, if available; provided, however, that if tax bills
for the current year are not available, taxes will be prorated
based upon the tax bills for the year immediately preceding the
year of sale, and the parties agree that in such event the tax
prorations used at Closing shall be final. Notwithstanding any
provision contained herein to the contrary, any tax or roll back
of taxes imposed because of a change in use or ownership of the
Property shall be the responsibility of the Purchaser. Each of
Purchaser and Seller shall pay its own attorney's fees and
expenses.
6. Brokerage Commission. At Closing, Purchaser agrees to
pay a brokerage commission to Equity Realty, Inc. (said party
being hereinafter referred to as "Broker") pursuant to a separate
commission agreement between Purchaser and Broker. Seller shall
have no responsibility with respect to the payment of any
brokerage fee and Purchaser agrees to indemnify and hold Seller
harmless from all claims, losses, liabilities and expenses
(including but not limited to attorneys' fees and court costs)
which Seller may incur on account of any claim which may be
asserted against Seller, whether or not meritorious, by any
broker (including but not limited to Broker) or any other person
in connection with any commission due or alleged to be due as a
result of the transaction contemplated hereby.
7. ▇▇▇▇▇▇▇ Money, Default and Remedies.
(a) The ▇▇▇▇▇▇▇ Money shall be held in an
interest bearing account and disbursed by Escrow Agent as herein
provided. If the Closing does not occur because of Purchaser's
default, then Seller may elect as its sole and exclusive remedy
hereunder to require Escrow Agent to promptly disburse the
▇▇▇▇▇▇▇ Money to Seller as Seller's full and complete liquidated
damages for such default. Purchaser and Seller acknowledge and
agree that it is impossible to estimate more precisely the
damages which might be suffered by Seller upon such default, that
said provision for liquidated damages is reasonable in light
thereof, and that said provisions for liquidated damages are not
a penalty. Notwithstanding the foregoing, Seller shall be
entitled to avail itself of any and all remedies at law or in
equity to enforce Purchaser's indemnity contained in Section 4
and 6 hereof.
(b) If the Closing does not occur because of
Seller's default, Purchaser may, as its sole and exclusive remedy
hereunder, either (i) avail itself of the remedy of specific
performance, or (ii) terminate this Agreement by written notice
to Seller and Escrow Agent, in which latter case Escrow Agent
shall disburse the ▇▇▇▇▇▇▇ Money to Purchaser, whereupon no party
shall have any further rights, duties, obligations or liabilities
hereunder except as provided in Sections 4 and 6 hereof.
Purchaser waives all other rights it may have at law or in equity
against Seller because of a default by Seller, and in no event
shall Seller be liable to Purchaser for damages.
(c) If the purchase and sale of the Property is
closed, the ▇▇▇▇▇▇▇ Money shall be paid by Escrow Agent to Seller
at Closing and credited to the purchase price for the Property.
8. Purchaser's Work Product. Should the Closing not occur
for any reason, Purchaser agrees to deliver to Seller, at
Seller's request and without cost to Seller, all tests, surveys,
studies, reports, plats and sketches, and any other similar site-
related information and documents which Purchaser has obtained or
developed
9. Notices. All notices required or permitted to be given
hereunder shall be in writing, signed by the party giving such
notice or its attorney at law, and shall be deemed to be
delivered, whether or not actually received, (i) when personally
delivered by commercial courier service or other messenger; (ii)
when the same has been deposited with a commercial overnight
delivery service, for delivery on the next business day; or (iii)
when transmitted by facsimile during customary business hours, as
evidenced by a confirmed receipt. For purposes of notice, the
addresses of the parties are as follows:
Seller: Harold's Stores, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, CFO
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Harold's Stores, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax # ▇▇▇-▇▇▇-▇▇▇▇
Purchaser : H.D Investments, L.L.C.
c/o ▇▇▇ ▇▇▇▇▇ Restaurant Group
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax #:
Escrow Agent: Cleveland County Abstract
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: _________________
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
10. Damage or Condemnation. Risk of loss resulting from
any condemnation or eminent domain proceeding and risk of loss to
the Property due to fire, flood or any other cause prior to the
Closing, shall remain with Seller. If prior to the Closing the
Property or any portion thereof shall be damaged, or if the
Property or any portion thereof shall be subject to a threat of
condemnation or shall become the subject of any proceedings,
judicial, administrative or otherwise, with respect to the taking
by eminent domain or condemnation, Seller shall immediately
notify Purchaser thereof after receipt of notice thereof by
Seller, but in any event prior to Closing, and at its option,
Purchaser may elect within thirty (30) days after receipt of such
notice, to terminate this Agreement or to proceed to Closing. If
the Closing Date is within the aforesaid thirty (30) day period,
then Closing shall be extended to the next business day following
the end of said thirty (30) day period. If Purchaser does not
elect to terminate this Agreement, and in any event if the damage
or taking is not material, this Agreement shall remain in full
force and effect and the purchase contemplated herein, less any
interest taken by eminent domain or condemnation, shall be
effected with no further adjustment, and upon the Closing of this
purchase, Seller shall assign, transfer and set over to Purchaser
all of the right, title and interest of Seller in and to any
awards that have been or that may thereafter be made for such
taking, and Seller shall assign, transfer and set over to
Purchaser any insurance proceeds that have been or may thereafter
be paid for such damage or destruction, giving Purchaser a credit
at Closing for any deductible under such insurance policies. If
Purchaser elects to purchase after receipt of such a notice, all
actions taken by Seller with regard to eminent domain or damage
or destruction of the Property, including without limitation
negotiations, litigation, settlement, appraisals, and appeals
shall be subject to the approval of Purchaser, which approval
shall not be unreasonably withheld.
11. Escrow Agent.
(a) Except as expressly set forth in this
Agreement, Escrow Agent shall have no obligation to take any
action or perform any act other than to receive and hold the
▇▇▇▇▇▇▇ Money delivered by Purchaser pursuant to this Agreement
and to deliver same in accordance with the terms and conditions
of this Agreement.
(b) Escrow Agent agrees to perform the duties
herein required of it to the best of its ability and to the end
that the interests of Purchaser and Seller may be adequately and
effectively protected. Escrow Agent shall not be answerable,
liable or accountable except for its own bad faith, willful
misconduct or negligence. Escrow Agent shall not be under any
obligation to take any action toward the execution or enforcement
of the rights or interests of Purchaser or Seller under this
Agreement, whether on its own motion or on the request of any
other person or entity, whether or not a party hereto. Escrow
Agent is authorized to act on any document believed by it in good
faith to be genuine and to be executed by the proper party or
parties, and will incur no liability by so acting. Seller and
Purchaser agree to indemnify and hold harmless Escrow Agent from
any and all claims, actions, damages, demands and judgments from
or to Seller, Purchaser, or third parties, arising out of any act
or omission of Seller or Purchaser and not caused by bad faith,
willful misconduct or negligence of Escrow Agent.
(c) Escrow Agent shall be obligated to perform
such duties and only such duties as are herein set forth, and no
implied duties or obligations shall be read into this Agreement.
(d) If this Agreement shall be terminated by the
mutual written agreement of Seller and Purchaser, or if Escrow
Agent shall be unable to determine at any time to whom the
▇▇▇▇▇▇▇ Money should be paid, or if a dispute shall develop
between Seller and Purchaser concerning to whom the ▇▇▇▇▇▇▇ Money
should be paid, then in any such event, Escrow Agent shall
deliver the ▇▇▇▇▇▇▇ Money in accordance with the joint written
instructions of Seller and Purchaser. In the event that such
written instructions shall not be received by Escrow Agent within
ten (10) days after Escrow Agent has served a written request for
such instruction upon Seller and Purchaser, then Escrow Agent
shall pay the ▇▇▇▇▇▇▇ Money into a court of competent
jurisdiction and interplead Seller and Purchaser in respect
thereof, and thereafter Escrow Agent shall be discharged of any
further obligations in connection with this Agreement except
those arising from or related to Escrow Agent's bad faith,
willful misconduct, or negligence.
(e) Escrow Agent shall not be responsible for: (i) the
sufficiency or correctness as to the form, execution or the
validity of this Agreement; or (ii) the identity, authority or
right of any person executing any notice or document given to
Escrow Agent.
12. Seller's Representations and Covenants. Seller makes
the following representations and covenants to Buyer:
(a) Seller has all necessary power and authority
to execute, deliver and perform this Agreement and to complete
the transaction provided for herein and any required consents
from third parties to Seller's execution, delivery or performance
of this Agreement have been obtained.
(b) Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended.
(c) No person, firm or entity has any rights in
or rights to acquire all or any part of the Property, and there
is no outstanding agreement to sell or lease all or any part of
the Property to any other person, firm, or entity.
(d) Seller is not a party to any litigation or
other proceeding, nor to the best of Seller's knowledge, is any
such litigation or proceeding threatened, which relates to the
Property or Seller's right to sell the Property.
(e) There are no pending, nor to the best of
Seller's knowledge threatened or contemplated, condemnation
proceedings affecting the Property.
(f) At Closing, Seller shall convey to Purchaser (by special
warranty deed) fee simple title to the Property free and clear of
all liens, easements, restrictions, encumbrances or other
limitations, other than ad valorem taxes not yet due and the,
Permitted Exceptions.
(g) To the best of Seller's knowledge, there are no Hazardous
Substances on, in, or under the Property in violation of
applicable Environmental Law. As used herein, the term
"Hazardous Substance" means any substance or material defined or
designated as a "Hazardous Substance" under any Environmental
Law. As used herein, the term "Environmental Law" means any
applicable federal or state law, rule or regulation relating to
pollution or protection of the environment or actual or
threatened releases, discharges, or emissions into the
environment.
(h) To the best of Seller's knowledge, there are currently no
special assessments affecting the Property.
EXCEPT AS PROVIDED IN (a) THROUGH (h) ABOVE, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTY OR ANY
INFORMATION DELIVERED BY SELLER TO PURCHASER IN CONNECTION
WITH THE PROPERTY. PURCHASER IS PUCHASING THE PROPERTY "AS
IS", WITH ALL FAULTS AND DEFECTS KNOWN OR UNKNOWN, LATENT OR
PATENT, WITHOUT ANY REPRESNTATION OR WARRANTY, ORAL OR
WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
HABITABILITY, MERCHANTABILITY, SUITABILITY OR QUALITY, AND
IN SOLE RELIANCE ON PURCHASER'S OWN INDEPENDENT INSPECTION,
INQUIRY AND/OR INVESTIGATION. SPECIFICALLY, SELLER IS NOT
MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER
THAN SELLER'S WARRANTY OF TITLE SET FORTH IN THE SPECIAL
WARRANTY DEED TO BE DELIVERED AT CLOSING), ZONING, PLATTING,
SUBDIVISION, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITIONS, AVAILABILITY OF ACCESS, INGRESS OR EGRESS,
VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS
OR ANY OTHER MATTERS OR THINGS RELATING TO OR AFFECTING THE
PROPERTY INCLUDING, WITHOUT LIMITATION: (I) THE VALUE,
CONDITION, MERCHANTABILITY, MARKETABILITY, PROFITABILITY,
SUITABILITY OR FITNESS FOR A PARTICUALAR USE OR PURPOSE OF
THE PROPERTY (II) THE MANNER OR QUALITY OF THE CONSTRUCTION
OR MATERIALS INCORPORATED INTO ANY OF THE PROPERTY, (III)
THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF
THE PROPERTY, OR (IV) ANY INFORMATION DELIVERED BY SELLER TO
PURCHASER IN CONNECTION WITH THE PROPERTY. PURCHASER IS
ACQUIRING THE PROPERTY ON THE BASIS OF ITS OWN INDEPENDENT
INSPECTIONS, INQUIRIES AND/OR INVESTIGATIONS AND NOT AS A
RESULT OF ANY WARRANTIES OR REPRESENTATIONS OF SELLER.
PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE PURCHASER OF
REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN
EXPERTISE AND THAT OF PURCHASER'S CONSULTANTS, AND THAT
PURCHASER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS
OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL
AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON
THE SAME, AND UPON CLOSING SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY PURCHASER'S INSPECTION AND INVESTIGATIONS. THERE
ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS,
COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT
OF SELLER ANY THIRD PARTY, SELLER IS NOT LIABLE OR BOUND IN
ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS,
REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY
FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON. THE TERMS AND CONDITIONS OF THIS
PARAGRAPH SHALL SURVIVE THE CLOSING AND NOT MERGE THEREIN.
13. Conditions to Closing. In addition to the other
conditions set forth herein, the obligations and liabilities of
Purchaser hereunder shall in all respects be conditioned upon the
satisfaction of each of the following conditions prior to or
simultaneously with the Closing, any of which may be waived by
written notice from Purchaser to Seller:
(a) Seller has substantially complied with and
otherwise substantially performed each of the covenants and
obligations of Seller set forth in this Agreement.
(b) All representations and warranties of Seller
as set forth in this Agreement shall be in all material respects
true and correct as of the Closing Date.
14. Assignment. This Agreement may be assigned one time
prior to Closing by Purchaser. Thereafter, this Agreement shall
not be assigned without the prior written consent of Seller,
15. Survival of Provisions. Unless otherwise expressly
provided herein, all of the warranties, representations and
indemnities herein shall not survive the Closing and the delivery
of the deed and the other documents but shall be deemed to merge
into such deed and documents.
16. Miscellaneous.
(a) Entire Agreement. This Agreement embodies
the entire agreement between the parties and cannot be waived or
amended except by written agreement. Purchaser has not been
induced by and has not relied upon any information,
representations, warranties or statements, whether oral or
written or express or implied, made by Seller or by any broker or
any other person representing or purporting to represent Seller,
which are not expressly set forth in this Agreement.
(b) Time of Essence. Time is of the essence of
this Agreement.
(c) Successors and Assigns. This Agreement shall
be binding upon Seller and Purchaser and their respective
successors, successors-in-title and permitted assigns.
(d) Applicable Law. This Agreement and all
rights, duties and responsibilities hereunder shall be
interpreted and construed in accordance with the laws of the
State in which the Property is located.
(e) Time Periods. If the time period by which
any right, option or election provided under this Agreement must
be exercised, or by which any act required hereunder must be
performed, or by which the Closing must be held, expires on a day
other than a business day, then such time period shall
automatically be extended through the close of business on the
next business day.
(f) Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an
original, but such counterparts together shall constitute one and
the same instrument.
(g) Effective Date. The effective date of this
Agreement (the "Effective Date") shall be the later of the dates
on which this Agreement shall have been fully executed by both
Purchaser and Seller as indicated by the dates appearing beneath
their respective signatures.
(h) Title Examination. PURCHASER HEREBY
ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT IT SHOULD OBTAIN IN
CONNECTION WITH THE PURCHASE OF THE PROPERTY A POLICY OF TITLE
INSURANCE OR SHOULD HAVE AN ABSTRACT OF TITLE TO THE PROPERTY
EXAMINED BY AN ATTORNEY OF ITS CHOICE. BY PURCHASER'S EXECUTION
OF THIS AGREEMENT, PURCHASER ACKNOWLEDGES THAT PURCHASER HAS BEEN
SO ADVISED.
(i) Tax Deferred Exchange. Seller and Purchaser
each hereby acknowledges that the other party may desire to
convey the Property as part of an Internal Revenue Code Section
1031 tax deferred exchange and that either Seller's or
Purchaser's rights under this Agreement may be assigned to a
qualified intermediary for the purpose of completing such
exchange. Seller and Purchaser each agree to cooperate with the
other party and such intermediary in a manner reasonably
necessary or desirable to effect such exchange; provided however.
(a) no party shall be required to acquire title to any property
other than the Property (b) neither Purchaser nor Seller shall
incur any additional liability or expense as a result of such
exchange (c) such tax deferred exchange shall not result in any
delay of Closing and (d) the party requesting a tax deferred
exchange hereby indemnifies and holds harmless the other from any
loss, cost, damage or expense (including reasonable attorney's
fees) relating to such tax deferred exchange.
(j) Lease. Seller and Purchaser recognize and
agree that this Agreement is part of a sale lease back
transaction in which Seller is "leasing back" a portion of the
Property being sold to Purchaser hereunder. This Agreement is
expressly contingent on Seller and Purchaser executing a lease
substantially in the form attached hereto as Exhibit C (the
"Lease") prior to the expiration of the Inspection Period. In
the event Seller and Purchaser have not agreed upon the final
form and terms of the Lease and executed it by the end of the
Inspection Period, either party, at any time prior to both
parties' subsequent agreement to the form and terms and execution
of the Lease, may terminate this Agreement by giving the other
party written notice thereof.
(k) GE Early Termination Fee. Notwithstanding
any provision in this Agreement to the contrary, in addition to
the costs and fees which are the responsibility of Purchaser
pursuant to Section 5 (d), Purchaser shall also be responsible
for paying, at Closing, any prepayment fees and early termination
fees up to Fifty Thousand and No/100 Dollars ($50,000.00)
required in connection with the release of the first lien
mortgage on the Property held by General Electric Capital
Business Asset Funding Corporation.
(l) Business Day. As used herein the term
"business day" shall mean any day other than a Saturday, Sunday
or any day on which commercial banks in Norman, Oklahoma, are
required or permitted by law to be closed
(m) Costs and Attorneys Fees. Should either the
Purchaser or the Seller employ an attorney or attorneys to
enforce any of the terms and conditions hereof, or to protect any
right, title, or interest created or evidenced hereby, the
nonprevailing party in any action pursued in courts of competent
jurisdiction shall pay to the prevailing party all reasonable
costs, damages, and expenses, including attorneys fees, expended
or incurred by the prevailing party.
IN WITNESS WHEREOF, the parties have executed and
delivered this Agreement under seal as of the date and year first
above written.
SELLER:
Harold's Stores, Inc.
By:
Name:
Its: Vice President
Corner Properties, Inc.
By:
___________________________________
__
Name:
_________________________________
Its: Vice President
Date Executed:
PURCHASER:
H.D. Investments, L.L.C.
By:
Name:
________________________________
Its: Manager
Date Executed:
The undersigned hereby executes the Agreement solely for the
purpose of evidencing consent to act as Escrow Agent hereunder
and to acknowledge receipt of the ▇▇▇▇▇▇▇ Money:
ESCROW AGENT/TITLE COMPANY
Cleveland County Abstract
By:
Name:
Title: Vice President
Date: _______________________________
EXHIBIT A
▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇ ▇ of ▇▇▇▇▇'▇ University Addition, City of
Norman, Cleveland County, Oklahoma (765 Asp Avenue)
Lots 35-39 and Part of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇'▇ University
Addition, City of Norman,
Cleveland County, Oklahoma (770 ▇▇▇▇▇▇ Avenue)
EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes, dues and assessments for the year 2005, and
subsequent years, not yet due and payable.
[Create list of exceptions based upon exceptions to coverage
contained in the existing title policy.]