from IVDA to provide grant funding for demolition of
existing improvements on, or remediation of, the Property in the amount of
$2,500,000, or (b) at the Closing, Purchaser shall pay to Hillwood, in good
funds, the sum of $2,500,000 (the "Westgate Demolition Payment"). Actual
commencement of remediation or demolition work on the Property after receipt of
a grant designated for that purpose shall be deemed a "firm commitment from
IVDA" referenced in the first sentence of this Section 8.7. Hillwood agrees to
use the Westgate Demolition Payment only for the purpose of remediation of and
demolition of existing improvements on and under the Property in the area
identified by Hillwood as "Westgate" and generally shown on the attached
Exhibit G. This covenant shall survive the closing or termination of this
Agreement.
8.8 Post-Closing Agreement Costs. Hillwood shall notify Purchaser of any
expenditures Hillwood intends to incur prior to the Closing for which it may
seek reimbursement from Purchaser under the Post-Closing Agreement. Such notice
shall include the scope of work
Purchase and Sale Agreement Between
Stater Bros. and Hillwood/San Bemardino, LLC
v13_386862_1
Exhibit 10.36 StaterPSA
6
and a reasonably detailed description of the cost.
ARTICLE 9
DEFAULT
9.1 Purchaser's Failure to Close. IN THE EVENT THAT PURCHASER FAILS TO
ACQUIRE THE PROPERTY BY THE CLOSING DATE FOR ANY REASON OTHER THAN A DEFAULT BY
HILLWOOD AND SUCH FAILURE CONTINUES FOR A PERIOD OF TEN DAYS AFTER HILLWOOD
NOTIFIES PURCHASER IN WRITING OF SUCH FAILURE, HILLWOOD'S SOLE AND EXCLUSIVE
REMEDY FOR SUCH FAILURE TO CLOSE SHALL BE THE RIGHT TO CANCEL AND TERMINATE THIS
AGREEMENT AND TO RECOVER FROM PURCHASER AN AMOUNT EQUAL TO THIRD PARTY OUT OF
POCKET COSTS INCURRED BY HILLWOOD DIRECTLY RELATED TO THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT NOT TO EXCEED $100,000 IN THE AGGREGATE, TOGETHER
WITH ALL REASONABLE ATTORNEYS FEES AND COSTS AND COURT COSTS INCURRED BY
HILLWOOD IN SEEKING RECOVERY OF THOSE COSTS, IT BEING UNDERSTOOD AND AGREED THAT
HILLWOOD IS HEREBY RELEASING AND WAIVING ANY RIGHT IT MIGHT HAVE EITHER TO
SPECIFICALLY ENFORCE THIS AGREEMENT OR TO SUE PURCHASER OR ANY PERSON OR ENTITY
AFFILIATED WITH PURCHASER FOR DAMAGES UNDER THIS AGREEMENT OTHER THAN THOSE
DESCRIBED ABOVE AND IN SECTION 9.3 BELOW. THE PARTIES HAVE AGREED THAT
HILLWOOD'S ACTUAL DAMAGES, IN SUCH EVENT WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE
PARTIES ACKNOWLEDGE THAT THE REIMBURSEMENT AND COSTS DESCRIBED ABOVE HAVE BEEN
AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF
HILLWOOD'S DAMAGES AND AS HILLWOOD'S SOLE AND EXCLUSIVE REMEDY AGAINST
PURCHASER, AT LAW OR IN EQUITY, IN THE EVENT OF SUCH FAILURE TO CLOSE. HILLWOOD
HEREBY WAIVES ANY AND ALL BENEFITS IT MAY HAVE UNDER CALIFORNIA CIVIL CODE
SECTION 3389 WITH RESPECT TO SUCH FAILURE TO CLOSE. THIS SECTION 9.1 SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
HILLWOOD'S INITIALS
PURCHASER'S INITIALS
9.2 Default by Hillwood. In the event Hillwood defaults under any of
Hillwood's obligations under this Agreement and such failure continues for a