The URL can be used to link to this page

Wal-Mart/Option Agreement 02ORIGINAL OPTION AGREEMENT THIS OPTION AGREEMENT (the "Agreement") is entered into to be effective as of the 1g�-day of August, 2002 ("Grant Date"), by and between WAL-MART STORES, INC., a Delaware corporation ("Wal-Mart"), and the LA QUINTA REDEVELOPMENT AGENCY, a public body and corporate politic ("Agency"). RECITALS A. Wal-Mart is the owner of certain real property located in the City of La Quinta ("City"), County of Riverside, State of California, as more particularly described on Exhibit "A", attached hereto and incorporated herein by reference (the "Property"). B. Wal-Mart currently owns and operates a retail business commonly known as "Wal-Mart" on the Property (the "Existing Wal-Mart Operation"). C. Wal-Mart plans to relocate the Existing Wal-Mart Operation to another property located in the vicinity of the Wal-Mart Property (the "New Wal-Mart Project") and the City has approved the New Wal-Mart Project subject to certain conditions of approval. D. In order to ensure that for purposes of compliance with the California Environmental Quality Act, the Property and the surrounding shopping center would not be left in a blighted condition, the City imposed, and Wal-Mart agreed to, Condition No. 86(B) of Resolution 2001-41, which states, in relevant part: "In order to ensure the full reoccupation of the existing Walmart building by one or more commercial retail users within a reasonable time period (not to exceed 24 months) following any relocation of Walmart from the existing building and into Retail B Building, the following additional condition is imposed upon the Project. Within 90 days of approval of this Project, and prior to issuance of a building permit for Retail B Building, the City and Walmart shall execute either (i) an option agreement satisfactory to the City which provides the City the option of purchasing the approximately 13 acre Walmart property in the City of La Quinta, both the existing Walmart building and all surrounding parking lot areas owned by Walmart (the "Existing Building"), or (ii) at the City's option, shall execute other agreements satisfactory to the City that ensure that the Existing Building will be fully reoccupied by one or more commercial retail users within a reasonable time period, as defined above." E. Accordingly, pursuant to Condition 86(B) of Resolution 2002-41, Wal- Mart desires to grant to the Agency and the Agency desires to obtain from Wal-Mart an option to purchase the Property in accordance with the terms and provisions more particularly set forth herein. 615/015610-0062 301961.17 AM02 -1- AGREEMENT Based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Wal-Mart and Agency agree as follows: OPTION TO ACQUIRE. 1.1 Grant of Option. Wal-Mart hereby grants to Agency an option to acquire the Property ("Option"), upon all of the terms, covenants, and conditions contained in this Agreement and the form Agreement for Conveyance of Property and Joint Escrow Instructions (the "Purchase Agreement") attached hereto as Exhibit "B". This Option shall commence on the date that City issues the certificate of occupancy for the New Wal-Mart Project (the "Commencement Date") and shall end at 5:00 p.m. on the Expiration Date (as defined in Section 1.4), subject to the extension provided for in Section 1.4(b). 1.2 Consideration for Option. Wal-Mart's granting of the Option to Agency shall be in consideration of City's approval of the New Wal-Mart Project and the issuance of the related permits and approvals. Agency shall not be required to pay any option fee. 1.3 Exercise of Option. The Option may be exercised by Agency only during the Exercise Period (as hereinafter defined in Section 1.4). Agency may exercise the Option, by delivering to Wal-Mart, three (3) duplicate originals of the Purchase Agreement, each executed and initialed where appropriate by Agency. Wal-Mart shall thereupon immediately execute the Purchase Agreement and deliver, within ten (10) business days after receipt thereof, one (1) executed original to the Escrow Holder named therein, return one (1) executed original to Agency, and retain one (1) executed original for Wal-Mart's records. 1.4 Exercise Period / Deferral / Termination. (a) Exercise Period. Subject to the deferral as outlined in Section 1.4(b), the "Exercise Period" shall commence upon the earlier of: (i) 30 days after the date that Wal- Mart sends the Commencement Notice (as hereinafter defined) or (ii) the day that is twelve (12) months from the Commencement Date. The Exercise Period shall end at 5:00 p.m. on the date that is four (4) months after the commencement of the period as referenced in (i) or (ii) herein, and shall be referred to as the "Expiration Date". Wal- Mart shall have the right, in its sole and absolute discretion, to designate the start of the Exercise Period at any time after the Commencement Date by sending written notice to Agency pursuant to Section 5.2 ("Commencement Notice"); provided, however, that Wal-Mart may not send a Commencement Notice if it has entered into an Alternative Agreement, as that term is defined in Section 1.4(b), which Alternative Agreement is still in effect. (b) Deferral of Exercise Period. Agency acknowledges that Wal-Mart is, and has been, actively marketing the Property for sale, and that nothing contained in this Agreement shall be construed to prevent Wal-Mart from entering into an agreement with a third party who is bona fide purchaser for value (a "Bona Fide Purchaser") for the sale and purchase of the Property which provides for such Bona Fide Purchaser to purchase 615/015610-0062 301961.17 AM02 -2- the Property for retail commercial use (an "Alternative Agreement"). As used herein, the term Bona Fide Purchaser shall not include any entity that is owned or controlled by or affiliated with Seller (collectively, a "Seller Affiliate"). If, as of the commencement of the Exercise Period, Wal-Mart has entered into an Alternative Agreement, but the closing pursuant to such Alternative Agreement has not occurred, then the commencement of the Exercise Period shall be deferred until the earlier of: (1) twenty-four (24) months after the Commencement Date; or (2) the date upon which the Alternative Agreement is terminated without closing. In the event that the commencement of the Exercise Period is deferred pursuant to this Section 1.4(b), the Expiration Date shall be extended for the same period. As used in this section, the term "closing" under an Alternative Agreement shall mean that fee title to the Property has been transferred from Wal-Mart to a Bona Fide Purchaser. (c) Automatic Termination. Notwithstanding anything to the contrary contained herein, in the event that either: (i) at any time before commencement of the Exercise Period, a "closing" (as more particularly described above) occurs pursuant to an Alternative Agreement, or (ii) the Agency does not exercise the Option to acquire the Property in the manner set forth in Section 1.3 of this Agreement prior to the Expiration Date, as may be extended pursuant to Section 1.4(b) above, then the Option shall automatically terminate and all rights of Agency in and to the Property under this Agreement shall then and there cease. 1.5 Memorandum of Option Agreement; Quitclaim. Within ten (10) business days following the mutual execution of this Agreement, (1) Wal-Mart and Agency shall enter into and cause to be recorded against the Property a Memorandum of Option Agreement in the form attached hereto as Exhibit "C" (the "Memorandum"), and (2) Agency shall execute, acknowledge and deliver to a mutually agreeable escrow company ("Escrow Company"), a Quitclaim Deed in the form attached hereto as Exhibit "D" (the "Quitclaim Deed"). The Escrow Company is hereby authorized to record the quitclaim upon the automatic termination of this Option pursuant to Section 1.4(c), and Agency shall also provide such other document(s) as may be required by a reputable title company to remove the Memorandum from Wal-Mart's title to the Property. The Agency further agrees that the Quitclaim Deed may also be recorded simultaneously with the closing of an Alternative Agreement by Escrow Company upon Wal- Mart's request, without further approval by Agency. If escrow under an Alternative Agreement is being handled by an escrow holder other than Escrow Company, Escrow Company is directed to transmit the Quitclaim Deed to such other escrow holder for recording, upon ten (10) days notice by Wal-Mart that escrow under an Alternative Agreement is closing. Agency will promptly consider any other requests by Wal-Mart to allow the recordation of the Quitclaim Deed prior to the date authorized for recordation herein, and shall exercise its reasonable judgment in determining whether to grant or deny such requests. 2. INSPECTIONS AND REVIEW. 2.1 Delivery of Due Diligence Items by Wal-Mart. Within ten (10) days of Agency's written request therefor which request shall not be made until after the Commencement Date, Wal-Mart shall deliver or cause to be delivered to Agency, at Wal-Mart's sole cost and expense, complete copies of all of the following documents and materials, to the extent that such 615/015610-0062 301961.17 AM02 -3- documents and materials are in Wal-Mart's or Wal-Mart's agent's possession or control (hereinafter collectively referred to as the "Due Diligence Items"): (a) All soils, geotechnical, drainage, sewer and water, toxic waste, engineering, traffic, environmental and other reports and studies concerning the physical condition of the Property, and/or improvements that were constructed thereon and are currently located thereon; (b) Any subdivision maps, boundary surveys, topographic surveys, aerial photos, ALTA Surveys or other plans or maps identifying the boundary or topography of the Property or portions thereof, (c) Disclosure of any legal matters affecting the physical condition of the Property (excluding matters related to third party personal injury claims that do not currently affect the Property), and copies of notices of violations received from any governmental agency or quasi -governmental agency concerning the physical condition of the Property; (d) A copy of real property tax and assessment bills for the Property for the current and prior two (2) fiscal years; and (e) Any plans and specifications relating to the building located on the Property. Notwithstanding the foregoing, or any provision to the contrary set forth herein, Wal-Mart shall not be obligated to deliver to Agency any of the foregoing documents or materials to the extent that such documents or materials constitute financial feasibility analyses, business plans, and similar financial data and information concerning Wal-Mart's internal business affairs, which data and information is proprietary in nature. In the event that this Agreement or the Purchase Agreement is terminated for any reason, Agency shall return to Wal- Mart all of the original Due Diligence Items that Agency has received from Wal-Mart. Agency acknowledges and agrees that all of the Due Diligence Items that are delivered to Agency hereunder are being delivered by Wal-Mart to assist Agency in conducting its own investigations of the Property and, except to the extent of the specific representation and warranty set forth in Section 4.1 below, Wal-Mart does not make any warranty whatsoever as to the contents or completeness of any of the Due Diligence Items. 2.2 Investigation of Property. Agency shall have the right to examine, inspect, and conduct a due diligence investigation of the Property and of all matters which Agency, in its sole and absolute discretion, may deem relevant to Agency's acquisition of the Property, commencing on the Commencement Date and continuing until the Expiration Date (the "Due Diligence Period"); provided, however, that Agency shall have no right to conduct any invasive testing of the Property without first obtaining Wal-Mart's prior written approval, which approval may be subject to certain conditions imposed by Wal-Mart, but such approval shall not be unreasonably withheld and such condition(s) may not be unreasonably imposed. All expenses of the Agency's entry onto and activities on the Property shall be paid by the Agency. During the Due Diligence Period, Agency may make such independent investigations as Agency deems necessary or 615/015610-0062 301961.17 AM02 -4- appropriate to determine the condition of the Property. Agency shall keep the Property free and clear of any mechanics' liens or materialmen's liens related to Agency's examination and investigation and Agency shall protect, defend, indemnify and hold Wal-Mart harmless from and against any and all losses, costs, expenses, (including reasonable attorneys' fees and court costs), claims, damages, liens and stop notices whatsoever and shall repair any and all damages to any portion of the Property arising out of or related (directly or indirectly) to Agency's conducting such examinations, and inspections of the Property. Agency's indemnification hereunder shall survive the termination of this Agreement. 2.3 Preliminary Title Report. Within thirty (30) days of Agency's written request therefor which request shall not be made until after the Commencement Date, Wal-Mart shall order, on Agency's behalf, a preliminary title report or title commitment for an ALTA extended coverage policy of title insurance issued by First American Title Insurance Company (the "Title Company"), describing the state of title of the Property, together with copies of all exceptions specified therein and with all easements plotted (the "Preliminary Title Report"). Agency shall notify Wal-Mart in writing ("Agency's Title Objection Notice") of any objections Agency may have to title exceptions contained in the Preliminary Title Report at least sixty (60) days prior to the expiration of the Due Diligence Period. Upon receipt of Agency's Title Objection Notice, Wal-Mart shall have a period of thirty (30) days after receipt of Agency's Title Objection Notice in which to deliver written notice to Agency ("Wal-Mart's Title Notice") of Wal-Mart's election, in its sole and absolute discretion, to either (i) agree to remove the objectionable items prior to the Close of Escrow, or (ii) decline to remove any such title exceptions; provided, however, that Wal-Mart shall be required to remove all monetary liens and financing encumbrances created or assumed by Wal-Mart. Wal-Mart's failure to make an election shall be deemed Wal-Mart's election under subsection (ii), to decline to remove any such title exceptions disapproved in Agency's Title Objection Notice. If Wal-Mart notifies Agency of its election not to remove such objectionable items or Wal-Mart is deemed to have elected not to remove any such objectionable items, Agency shall have the right, by written notice delivered to Wal-Mart within ten (10) business days after such election or deemed election by Wal-Mart, to agree to accept the Property subject to the objectionable items, in which event Agency shall take title at the Close of Escrow subject to such objectionable items. In the event that Agency fails to elect to accept such objectionable matters within such ten (10) business day period, Agency shall be deemed to have elected not to accept such objectionable matters, in which event this Agreement shall automatically terminate and neither party shall have any further rights or obligations hereunder, except as otherwise provided herein. Upon the issuance of any amendment or supplement to the Preliminary Title Report which adds additional exceptions (including, but not limited to, adding additional exceptions for matters shown on the Survey [as hereinafter defined]), the foregoing right of review and approval shall also apply to said amendment or supplement (provided that the period for Agency to review such amendment or supplement shall be the later of the expiration of the Due Diligence Period or ten (10) business days from receipt of the amendment or supplement) and Escrow shall be deemed extended by the amount of time necessary to allow such review and approval in the time and manner set forth above; provided, however, that in no event shall the Close of Escrow be extended as a result of such delay for more than thirty (30) days. 2.4 Survey. Agency may obtain a survey of the Property prepared by a land surveyor duly licensed by the State of California and in compliance with ALTA/ACSM standards 615/015610-0062 301961.17 AM02 -5- ("Survey") or an update to an existing Survey prepared for or on behalf of Wal-Mart, in a form acceptable to the Title Company for the deletion of the standard survey exception in the Title Policy relating to boundaries, without the addition of further exceptions unless the same are acceptable to Agency in its sole and absolute discretion. Agency shall have until the end of the Due Diligence Period to examine the Survey. At least sixty (60) days prior to the expiration of the Due Diligence Period, Agency shall notify Wal-Mart in writing of any objections Agency has to the Survey ("Agency's Survey Objection Notice"). Upon receipt of Agency's Survey Objection Notice, Wal-Mart shall have a period of thirty (30) days after receipt of Agency's Survey Objection Notice in which to deliver written notice to Agency ("Wal-Mart's Survey Notice") of Wal-Mart's election, in its sole and absolute discretion, to either (1) agree to remove the objectionable items prior to the Close of Escrow or (2) decline to remove such items. Wal-Mart's failure to provide Wal-Mart's Survey Notice shall be deemed Wal-Mart's election under (2), to decline to remove such items disapproved in Agency's Survey Objection Notice. If Wal-Mart notifies Agency of its intention to not remove the objectionable items, or Wal-Mart is deemed not to have elected not to cure such disapproved survey objections, Agency shall have the right, by written notice delivered to Wal-Mart within ten (10) business days after Agency's receipt of Wal-Mart's Survey Notice, to agree to accept the Property subject to the objectionable items, in which event Agency shall accept the Property on the Close of Escrow subject to such objectionable items. Prior to the Closing, the Survey shall be recertified to Agency and Title Company. In the event Agency fails to accept such objectionable matters within such ten (10) business day period, Agency shall be deemed to have elected not to have elected to accept such disapproved matters, in which event this Agreement shall automatically terminate, and neither party shall any further obligations hereunder, except as otherwise provided herein. 2.5 Conveyance of Title. In the event that Agency exercises the Option, upon the Close of Escrow (as defined in the Purchase Agreement), Wal-Mart shall deliver to Escrow Holder a Grant Deed ("Grant Deed") in the form attached as Attachment No. 2 to the Purchase Agreement, which Grant Deed shall convey all of Wal-Mart's interest in fee title to the Property to Agency, subject to the Permitted Exceptions (as hereinafter defined). Escrow Holder shall be instructed to record such Grant Deed in the Official Records of Riverside County, California, on the Closing Date when Escrow Holder holds the instruments and funds accruing to Agency and Wal-Mart as set forth herein and can obtain for Agency an ALTA owner's extended coverage policy of title insurance (the "Title Policy") issued by the Title Company with liability in an amount equal to the Purchase Price, together with such endorsements to the policy as may be reasonably requested by Agency, showing the Real Property vested in Agency (or Agency's assignee or nominee) free and clear of all tenancies, options, rights of first refusal or other purchase rights, and subject only to the following (collectively, the "Permitted Exceptions"): (a) If applicable, a lien to secure payment of taxes, not delinquent; (b) Title exceptions approved by Buyer pursuant to Sections 2.3 and 2.4 above; and (c) Title exceptions, if any, resulting from documents being recorded or delivered through Escrow. 615/015610-0062 301961.17 AM02 -6- Except for endorsements Wal-Mart agrees to obtain pursuant to Section 2.3, Wal-Mart shall have no obligation to secure any endorsements to the Title Policy, and in the event the Title Company will not issue any requested title endorsements, Wal-Mart shall not be in default hereunder. 3. CONDUCT OF WAL-MART. During the Option Period and, in the event Agency exercises the Option, continuing through the Close of Escrow, Wal-Mart shall comply with the following: (a) Wal-Mart shall comply with the terms and provisions of Condition No. 86(A) of Resolution 2001-41; and (b) Wal-Mart shall not intentionally commit waste of the Property and shall not excavate, or otherwise materially alter the Property, except for testing that may be permitted under this Agreement or any Alternative Agreement. 4. REPRESENTATIONS AND WARRANTIES. 4.1 Wal-Mart's Representations and Warranties. Wal-Mart hereby makes the following representations and warranties to Agency, each of which (i) is material and relied upon by Agency in making its determination to enter into this Agreement, and (ii) shall be deemed made as of the Grant Date hereof and, reaffirmed as of the date that Agency exercises the Option and, except to the extent Wal-Mart provides Agency with written qualifications, at the Close of Escrow: (a) Wal-Mart has full right, power, and authority to enter into this Agreement and perform Wal-Mart's obligations hereunder. This Agreement and all other documents delivered by Wal-Mart to Agency now or at the Close of Escrow, have been or will be duly executed and delivered by Wal-Mart and are legal, valid, and binding obligations of Wal-Mart, enforceable against Wal-Mart in accordance with their respective terms, and do not violate any provisions of any material agreement to which Wal-Mart is a party; (b) To Wal-Mart's actual knowledge, there are no pending or threatened, actions, suits, writs, injunctions, decrees, condemnation or legal proceedings or governmental investigations against or affecting the Property or relating to the ownership, maintenance, use or operation of the Property; (c) To Wal-Mart's actual knowledge, there is no violation of any laws, ordinances, rules, regulations or requirements of any governmental agency, body or subdivision (excluding the City and Agency) affecting or relating to the Property; (d) To Wal-Mart's actual knowledge, during Wal-Mart's ownership of the Property, the Property has not been used for the purposes of manufacturing, releasing, transporting or dumping Hazardous Materials or Substances, no Hazardous Materials or Substances have been identified or released on or about the Property (except in such quantity and in such manner as are usual and customary in the construction, development, maintenance, operation, and occupation of commercial real estate projects in Riverside 615/015610-0062 301961.17 AM02 -7- County, California) and no underground storage tanks, pipelines, clarifiers or wells or other structures have been or are located on the Property. The term "Hazardous Materials or Substances" shall mean (1) hazardous wastes, hazardous materials, hazardous substances, hazardous constituents, toxic substances or related materials, whether solids, liquids or gases, including, but not limited to, substances deemed as "hazardous wastes," "hazardous materials," "hazardous substances," "toxic substances," "pollutants," "contaminants," "radioactive materials," or other similar designations in, or otherwise subject to regulation under, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. § 9601 et seq.; the Toxic Substance Control Act ("TSCA"), 15 U.S.C. § 2601 et sea.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1802; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 9601, et seq.; the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300 et seq.; the Clean Air Act ("CAA"), 42 U.S.C. 7401 et seg.; the Hazardous Waste Control Law, California Health and Safety Code § 25025 et seq., the Carpenter -Presley -Tanner Hazardous Substance Account Act, California Health and Safety Code, Division 20, Chapter 6.8, the Hazardous Materials Release Response Plans and Inventory Act, California Health and Safety Code, Division 20, Chapter 6.95, The Underground Storage of Hazardous Substances Act, California Health and Safety Code, Division 20, Chapter 6.7, the Porter - Cologne Act, California Water Code § 13050 et seq. and in any permits, licenses, approvals, plans, rules, regulations or ordinances adopted, or other criteria and guidelines promulgated pursuant to the preceding laws or other similar federal, state or local laws, regulations, rules or ordinances now or hereafter in effect relating to environmental matters (collectively the "Environmental Laws"); and (2) any other substances, constituents or wastes subject to any applicable federal, state or local law, regulation, ordinance or common law doctrine, including any Environmental Law, now or hereafter in effect, including, but not limited to, (A) petroleum, (B) refined petroleum products, (C) waste oil, (D) waste aviation or motor vehicle fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon, (H) polychlorinated biphenyls (PCB's) and (I) urea formaldehyde; (e) Wal-Mart is a duly organized, validly existing corporation formed under the laws of the State of Delaware. Wal-Mart is qualified to do business in the State of California and has the full right, power and authority to enter into and carry out the transactions contemplated by this Agreement. The entering into of this Agreement and the carrying out of the transactions contemplated hereby does not and will not constitute a default (or an event which, with the giving of notice or the passage of time, would constitute a default) under any material agreement to which Wal-Mart is a party; 4.2 Delivery of Materials. To Wal-Mart's actual knowledge, Wal-Mart does not have any Due Diligence Items in its possession except to the extent that such items have been or will be delivered by Wal-Mart to Agency pursuant to Section 2.1 above. To Wal-Mart's actual knowledge, no Due Diligence Items have been intentionally removed from Wal-Mart's files in contemplation of this transaction that are materially pertinent to the physical condition of the Property. 615/015610-0062 301961.17 AM02 -8- 4.3 By Agency. Agency hereby makes the following representations and warranties to Wal-Mart, each of which (i) is material and relied upon by Agency in making its determination to enter into this Agreement, and (ii) shall be deemed made as of the Grant Date hereof and, reaffirmed as of the date that Agency exercises the Option and, except to the extent Agency provides Wal-Mart with written qualifications, at the Close of Escrow: (a) Agency is a duly organized, validly existing municipal corporation. Agency has the full right, power and authority to enter into and carry out the transactions contemplated by this Agreement. The entering into of this Agreement and the carrying out of the transactions contemplated hereby does not and will not constitute a default (or an event which, with the giving of notice or the passage of time, would constitute a default) under any material agreement to which Agency is a party; (b) This Agreement and all other documents delivered by Agency to Wal- Mart now or at the Close of Escrow, have been or will be duly executed and delivered by Agency and are legal, valid, and binding obligations of Agency, enforceable against Agency in accordance with their respective terms, and do not violate any provisions of any material agreement to which Agency is a party; and (c) Agency has or, by the Close of Escrow shall have, inspected and conducted tests, inspections, investigations and studies of the Property, and Agency is familiar with the general condition of the Property. It is expressly understood and agreed that if the option is exercised, Agency is buying the Property "as is" and "where is" as of the Close of Escrow, and with all faults and defects, latent or otherwise, and that, except for the representations contained herein, Wal-Mart is making no representations or warranties, either express or implied, by operation of law or otherwise, with respect to the qualify, physical conditions or value of the Property, the Property's habitability, suitability, merchantability, or fitness for a particular purpose, the presence or absence of conditions on the Property that could give rise to a claim for personal injury, property or natural resource damages; the presence of hazardous or toxic substances, materials or wastes, substances, contaminants, or pollutants on, under or about the Property; or the income or expenses from or of the Property. Agency understands and acknowledges that the Property may be subject to earthquake, fire, floods, erosion, highwater table, dangerous underground soil conditions, unavailability or shortages of water and other utilities and similar occurrences that may alters its condition or affect its suitability for use. Wal-Mart shall have no liability with respect to any such occurrences. This Section shall survive the Close of Escrow or earlier termination of this Agreement. 4.4 Change in Circumstances. If Wal-Mart or Agency becomes aware of any act or circumstance which would change or render materially incorrect, in whole or in part, any representation or warranty made hereunder, whether as of the date given or any time thereafter through the Close of Escrow, Wal-Mart or Agency, as applicable, will give prompt written notice of such changed fact or circumstance to the other party, and provided that such representation or warranty was not materially untrue or incorrect when made, such party shall not be in default hereunder. 615/015610-0062 301961.17 "02 -9- 4.5 Survival of Representations and Warranties. Subject to Section 4.4, all representations and warranties contained in this Section 4 shall be true and correct on the date hereof, and except as qualified by the party making the representation, on the date Agency exercises the Option, and the Close of Escrow. The representations and warranties contained in this Section 4 shall survive the execution and delivery of this Agreement, the Purchase Agreement, and the Close of Escrow for a period of one (1) year. 4.6 Brokerage Commissions. Each party represents and warrants to the other that no third party is entitled to a broker's commission and/or finder's fee with respect to any portion of the transaction contemplated by this Agreement. Each party agrees to indemnify and hold the other harmless from and against all liabilities, costs, damages and expenses, including, without limitation, attorneys' fees, resulting from any claims or fees or commissions, based upon agreements by it, if any, to pay a broker's commission and/or finder's fee. 4.7 Meaning of Actual Knowledge. Reference to the "actual knowledge" or words to that effect in connection with a representation or warranty herein of. (a) Wal-Mart shall mean the current actual knowledge of Dave Simmons, without any duty of investigation, and Wal-Mart hereby represents and warrants to Agency that the foregoing named employee is the person in Wal-Mart's employ who is primarily responsible for the subject matter of such representations or warranties, and (b) Agency shall mean Mark Weiss, without any duty of investigation, and Agency hereby represents and warrants to Wal-Mart that Mark Weiss is the person in Agency's employ who is primarily responsible for the subject matter of such representations and warranties. 5. MISCELLANEOUS. 5.1 Confidentiality. Agency may be supplied with or may obtain certain data and information regarding the Property in connection with Agency's investigation of the Property ("Information"). Agency covenants and agrees to keep such Information in strict confidence, and not to disclose such Information to any person, other than a Permitted Person (as hereinafter defined). For purposes of this Agreement, the term "Permitted Person" shall mean: (i) Agency, and (ii) Agency's consultants retained to review and analyze the Information, provided such consultants are informed of this confidentiality provision and instructed not to disclose the Information to any person except Agency. Notwithstanding the foregoing, or any provision to the contrary set forth herein, Wal-Mart hereby acknowledges and agrees that, Agency is subject to, among others, the California Public Records Act (California Government Code Section 6250 et seq.) (the "Public Records Act") and, in order to facilitate Agency's compliance with this Section 5.1, to the extent that Wal-Mart contemplates that any Information is confidential, Wal- Mart shall clearly mark the confidential document(s) with a "confidential" mark. All Information, whether marked confidential or not, may also be disclosed as required by applicable law, including, without limitation, the Public Records Act, or as is reasonably necessary in the event of litigation between Agency and Wal-Mart. 5.2 Notices. All notices required to be delivered under this Agreement to the other party must be in writing and shall be: (i) personally delivered, (ii) sent by overnight courier, or (iii) sent certified mail, return receipt requested. Notices shall be deemed delivered effective upon receipt or rejection only. Notices shall be addressed to the respective parties as set forth 615/015610-0062 301961.17 "02 -10- below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92253 Attn: Mr. Mark Weiss Telephone: (760) 777-7031 Facsimile: (760) 777-7101 Copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson, Esq. Telephone: (714) 641-3000 Telecopier: (714) 546-9035 To Wal-Mart: Wal-Mart Stores, Inc. Sam M. Walton Development Complex 2001 S.E. loth Street Bentonville, Arkansas 72716-0550 Attn: Telephone: Telecopier: Copy to: Gresham, Savage, Nolan & Tilden, LLP 600 North Arrowhead Avenue, Suite 300 San Bernardino, California 92401-1148 Attn: Telephone: (909) 884-2171 Telecopier: (909) 888-2120 5.3 Eminent Domain. Nothing in this Agreement or in the Purchase Agreement shall be construed as limiting the eminent domain powers of the City or the Agency. 5.4 Time of the Essence. Time is of the essence with respect to each of the terms, covenants, and conditions of this Agreement. 5.5 Binding on Heirs. This Agreement shall be binding upon the parties hereto and their respective heirs, representatives, transferees, successors, and assigns. 5.6 Entire Agreement, Waivers, and Amendments. This Agreement incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous oral agreements between the parties with respect to all or part of the 615/015610-0062 301961.17 AM02 -11- subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged. Any amendment or modification to this Agreement must be in writing and executed by Wal-Mart and Agency. In the event this Agreement is assigned by Agency, any amendment or modification to this Agreement must be signed by both Agency and the assignee in order to be valid. 5.7 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the internal laws of the State of California, without regard to principles of conflicts of law. 5.8 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. 5.9 Default; Remedies. If any party hereto fails to timely perform any term or provision of this Agreement which it is obligated to perform, such party shall be in default of this Agreement; provided, however, the party shall not be deemed to be in default if (i) such party cures, corrects, or remedies such default within ten (10) days after receipt of written notice from the other party specifying such failure, or (ii) for such defaults that cannot reasonably be cured, corrected, or remedied within ten (10) days, if such party commences to cure, correct, or remedy such failure within ten (10) days after receipt of written notice specifying such failure and thereafter diligently prosecutes such cure, correction, or remedy to completion. If a default of Wal-Mart is not timely cured, corrected, or remedied, Agency's remedy for an uncured default by Wal-Mart or its successors (except for indemnity obligations by Wal-Mart), if applicable, notwithstanding anything to the contrary contained in this Agreement, or any other agreement to the contrary, shall be limited to equitable remedies subject to, and to the extent permitted by, California law. If a default of Agency or Agency's successors or assigns, if applicable, is not timely cured, corrected, or remedied, Wal-Mart's remedy for an uncured default by Agency and its successors (except for indemnity obligations by Agency), if applicable, notwithstanding anything in this Agreement, or any other agreement to the contrary, shall be limited to equitable remedies subject to, and to the extent permitted by, California law. Except for the parties' indemnity obligations pursuant to this Agreement, in no event shall either party be entitled to recover damages (whether monetary, consequential, economic, or otherwise) from the other or its successors. 5.10 Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. 5.11 Assignment. During the pendency of the Escrow contemplated hereunder, Agency may freely assign its rights under this Agreement, provided that, notwithstanding any such assignment, Agency shall remain liable for any indemnification provisions set forth herein. 5.12 Exhibits. Exhibits "A", "B", "C", and "D" attached to this Agreement are incorporated herein by this reference and made a part hereof. Said Exhibits are identified as follows: 615/015610-0062 301961.17 AM02 -12- "A" - LEGAL DESCRIPTION OF PROPERTY "B" - AGREEMENT FOR CONVEYANCE OF PROPERTY AND JOINT ESCROW INSTRUCTIONS "C" - MEMORANDUM OF OPTION AGREEMENT "D" - QUITCLAIM DEED IN WITNESS WHEREOF, Wal-Mart and Agency have entered into this Agreement as of the date first set forth above. ATTEST: APPROVED AS TO ORM: t I atherme Jenson ✓ Agency Attorney "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, Thomas P. Genovese, Executive Director "WAL-MART" WAL-MART STORES, INC., a Delaware corporation By:_ Name: Its: By:_ Name: Its: 615/015610-0062 301961.17 AM02 -13- "A" - LEGAL DESCRIPTION OF PROPERTY "B" - AGREEMENT FOR CONVEYANCE OF PROPERTY AND JOINT ESCROW INSTRUCTIONS "C" - MEMORANDUM OF OPTION AGREEMENT "D" - QUITCLAIM DEED IN WITNESS WHEREOF, Wal-Mart and Agency have entered into this Agreement as of the date first set forth above. ATTEST: June S. Greek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney Approver' as to ie al terms only rJal a<i ! Frrai Team Date: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, ME Thomas P. Genovese, Executive Director "WAL-MART" WAL-MART STORES, INC., a Delaware corporation By: Name: Robert M. Bedard Its: Assistant Vice President By: Name: _ 111 o c./tom Its: Assistant secretary 615/015610-0062 301961.17 AM02 -13- ACKNOWLEDGMENT OF ESCROW HOLDER AND TITLE OFFICER The undersigned hereby agrees to proceed in accordance with the terms of this Agreement and the Purchase Agreement. First American Title Insurance Company By:_ Name: Title: Escrow Officer By:_ Name: Title: Title Officer 615/015610-0062 301961.17 AM02 -14- EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY That certain real property located in the County of Riverside, State of California, legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT NO. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 615/015610-0062 EXHIBIT "A" 301961.17 AM02 TO OPTION AGREEMENT EXHIBIT "B" AGREEMENT FOR CONVEYANCE OF PROPERTY AND JOINT ESCROW INSTRUCTIONS To: FIRST AMERICAN TITLE INSURANCE COMPANY ("Escrow Holder") [insert Riverside or Orange County office] Attention: Telephone: Facsimile: Escrow Officer (714) (714) Escrow No. Date of Opening of Escrow: THIS AGREEMENT FOR CONVEYANCE OF PROPERTY AND JOINT ESCROW INSTRUCTIONS (the "Agreement") is made this day of , by and between WAL-MART STORES, INC., a Delaware corporation ("Seller" or "Wal-Mart"), and the LA QUINTA REDEVELOPMENT AGENCY or its ASSIGNEE ("Buyer" or "Agency"). RECITALS: A. Seller is the owner of certain real property located in the City of La Quinta ("City"), County of Riverside ("County"), State of California (the "Land"). B. Seller and Buyer have previously executed that certain Option Agreement dated August _, 2002 ("Option Agreement"), pursuant to which Seller granted to Buyer (or its predecessor) an option to purchase the Land. The terms of the Option Agreement are incorporated herein by this reference as if set forth in full. By execution of this Agreement, Buyer has exercised its option to acquire the Land, together with all improvements now or hereafter constructed thereon, all easements, licenses, and interests appurtenant thereto, and certain development rights, governmental approvals, land entitlements, and intangible property owned or held by Seller in connection with the Land. The Land and the improvements, appurtenances, and intangible property described in the preceding sentence are collectively referred to herein as the "Property." AGREEMENT Based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows: 615/015610-0062 EXHIBIT "B" 301961.17 AM02 TO OPTION AGREEMENT 1. Definitions. All capitalized terms used herein, if not otherwise defined herein, shall have the meanings ascribed to them under the Option Agreement. 2. Conveyance of Property. Subject to all of the terms, conditions, and provisions of this Agreement, and for the consideration herein set forth, Seller agrees to convey the Property to Buyer and Buyer agrees to acquire the Property from Seller. 3. Purchase Price. The purchase price which Seller agrees to accept and Buyer agrees to pay for the Property is the sum of SIX MILLION DOLLARS ($6,000,000.00) ("Purchase Price"). 4. Escrow. 4.1 Opening of Escrow. Within two (2) business days following the execution of this Agreement by Buyer and Seller, the parties shall open an escrow (the "Escrow") with the Escrow Holder by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow shall be deemed open on the date that a fully executed copy of this Agreement is delivered to Escrow Holder (the "Opening of Escrow"). Escrow Holder shall insert the date of the Opening of Escrow in the blank on the first page of this Agreement and provide each of the parties in Section 8.2 with written confirmation of the date of the Opening of Escrow. 4.2 Close of Escrow; Closing Date. Escrow shall close on or before the date that is thirty (30) days after the Opening of Escrow (the "Closing Date"). The terms the "Close of Escrow", and/or the "Closing" are used herein to mean the time Seller's Grant Deed is recorded in the Office of the County Recorder of Riverside County, California. Possession of the Property shall be delivered to Buyer at the Close of Escrow in the physical condition described in Section 3 of the Option Agreement. 4.3 Escrow Cancellation. If Escrow does not close on the Closing Date as a result of a default by Buyer or Seller, the party not then in default hereunder (the "Nondefaulting Party") shall provide written notice to the party in default (the "Defaulting Party") setting forth the nature of the default and if the Defaulting Party fails to cure such default within ten (10) business days from the date of the written notice, the Nondefaulting Party may elect to either (i) continue such Agreement and pursue its equitable remedies, or (ii) terminate this Agreement and the Escrow by giving written notice of such termination to the other party and to the Escrow Holder, in which event neither party shall have any further rights or obligations hereunder, except as otherwise provided. Termination shall release the Defaulting Party from liability for such default (but shall not extinguish parties' indemnity obligations hereunder). In the event of any Escrow cancellation, the Escrow Holder shall return to the parties delivering same all instruments which are then held by the Escrow Holder in connection with the Escrow. The Defaulting Party shall pay the Escrow and title fees and cancellation charges. 4.4 Escrow Instructions. This Agreement, together with any standard instructions of Escrow Holder shall constitute the joint escrow instructions of Buyer and Seller to Escrow Holder as well as an agreement between Buyer and Seller. In the event of any conflict EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -2- between the provisions of this Agreement and Escrow Holder's standard instructions, the terms of this Agreement shall prevail. 4.5 Deliveries by Seller. No later than 1:00 p.m. on the business day preceding the Close of Escrow, Seller shall deliver to Escrow Holder: 4.5.1 a grant deed in substantially the form of Attachment No. 2 attached to this Agreement (the "Grant Deed"), executed and acknowledged by Seller; 4.5.2 a non -foreign affidavit in the form attached hereto as Attachment No. 3 and a California Franchise Tax Board Form 597-W (Nonresident Withholding Exemption Certificate for Real Estate Sales), each executed by Seller; and 4.5.3 all other sums and documents required by Escrow Holder to carry out and close the Escrow pursuant to this Agreement, including Seller's portion of the Escrow fees and prorations. 4.6 Deliveries by Buyer. No later than 1:00 p.m. on the business day preceding the Close of Escrow, Buyer shall deliver to Escrow Holder the Purchase Price and all other sums and documents (fully executed and, where applicable, acknowledged by Buyer) required by Escrow Holder to carry out and close the Escrow pursuant to this Agreement, including Buyer's portion of the Escrow fees and prorations. 4.7 Closing, Recording., and Disbursements. On or before the Closing Date, and when all of the conditions precedent to the Close of Escrow set forth in Section 5 of this Agreement have been satisfied or waived in writing by the benefited party or parties, Escrow Holder shall take the actions set forth in this Section 4.7. 4.7.1 Recording. Escrow Holder shall cause the Grant Deed to be recorded in the Official Records of Riverside County, California. 4.7.2 Title Policy. Escrow Holder shall cause Title Company to issue the Title Policy referred to in Section 2.5 of the Option Agreement as of the Close of Escrow showing title to the Land vested in Buyer. 4.7.3 Delivery of Documents to Buyer. Escrow Holder shall deliver to Buyer a conformed copy of the Grant Deed, and any other documents (or copies thereof) deposited by Seller with Escrow Holder pursuant to this Agreement. The original of the Grant Deed shall be returned to Buyer after recordation. 4.7.4 Delivery of Documents to Seller. Escrow Holder shall deliver to Seller a conformed copy of the Grant Deed, and any other documents (or copies thereof) deposited by Buyer with Escrow Holder pursuant to this Agreement. 4.8 Proration of Taxes. To the extent applicable, real property taxes, water rates and sewer charges and rents, if any, (collectively, "Taxes") shall be prorated and adjusted on the basis of the actual days in the calendar year and Buyer shall be responsible for all Taxes EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -3- accruing, if any, from and after the Closing Date and Seller shall be responsible for all Taxes accruing before the Closing Date. Seller agrees to provide Buyer with any forms or documents necessary for Buyer to obtain a refund for pre -paid property taxes and assessments applicable to the period after the Closing Date, in accordance with the applicable provisions of the Revenue and Taxation Code. 4.9 Payment of Costs. Seller shall pay one-half (1/2) of the Escrow fee and all documentary transfer taxes and the costs for the CLTA portion of the Title Policy, plus the costs of any and all endorsements to the Title Policy that Wal-Mart has agreed to pay for in accordance with the provisions of Section 2.3 of the Option Agreement. Buyer shall pay one- half (1/2) of the Escrow fee, and all charges for recording the Grant Deed and other documents to be recorded on the Closing Date, plus the difference in the cost of a CLTA title policy and ALTA extended coverage title policy and the cost of any endorsements requested by Buyer, except to the extent that Seller has agreed to pay for such endorsement(s). Seller and Buyer shall each be responsible for their respective attorneys' fees and costs. All other costs of Escrow not specifically allocated in this Agreement shall be apportioned between the parties in a manner consistent with the custom and usage of Escrow Holder. 5. Conditions Precedent to Close of Escrow. 5.1 Conditions to Buyer's Obligations. The obligations of Buyer under this Agreement to acquire the Property and close the Escrow shall be subject to the satisfaction or written waiver by Buyer of each of the conditions precedent set forth in this Section 5.1. 5.1.1 Seller Performance. Seller is not in material default of any term or condition of this Agreement or the Option Agreement. 5.1.2 Seller Deliveries Made. Seller has deposited with Escrow Holder all sums and documents required of Seller by this Agreement and the Option Agreement. 5.1.3 Representations and Warranties. All representations and warranties by Seller set forth in the Option Agreement and in this Agreement shall be true and correct as of the Closing without qualification as though made at that time. 5.1.4 Issuance of Title Policy. Title Company's issuance of the Title Policy at the Close of Escrow showing title to the Land vested in Buyer, subject only to the Permitted Exceptions (as defined in the Option Agreement). 5.1.5 Due Diligence. Buyer shall have approved, in its sole and absolute discretion, of its investigations of the Property, including, without limitation, the Due Diligence Items, the Preliminary Title Report, and the Survey. 5.1.6 No Adverse Condition. There are no materially adverse changes in the condition of the Property from its condition at the date of Buyer's exercise of the Option resulting from Hazardous Materials or Substances (as defined in the Option Agreement) or from improper or inadequate erosion control or from the Seller or its employees, contractors, or agents materially adversely altering the condition of the EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -4- Property or constructing or installing any improvements not contemplated by the Option Agreement, this Agreement or any of the agreements or instruments attached hereto for which Buyer has requested in writing that Seller correct and Seller has refused. Nothing herein is intended as a limitation on Seller's obligations under Section 3 of the Option Agreement. 5.2 Conditions to Seller's Obligations. The obligations of Seller under this Agreement to convey the Property and close the Escrow shall be subject to the satisfaction or written waiver by Seller of each of the conditions precedent set forth in this Section 5.2. 5.2.1 Buyer's Performance. Buyer is not in material default of any term or condition of this Agreement or the Option Agreement. 5.2.2 Buyer Deliveries Made. Buyer has deposited with Escrow Holder all sums and documents required of Buyer by this Agreement. 5.2.3 Representations and Warranties. All representations and warranties by Buyer set forth in the Option Agreement and in this Agreement are true and correct as of the Closing without qualification as though made at that time. 6. Survival. Seller's and Buyer's liability for misrepresentation of or breach of warranty, representation or covenant, shall survive the execution and delivery of this Agreement and the Close of Escrow. 7. "AS IS"; Release; Indemnity. Except for Seller's representations and warranties set forth in the Option Agreement and this Agreement, Buyer acknowledges that it is acquiring the Property in its "As - Is" condition and it is understood and agreed that Seller is not making 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, zoning, tax consequences, physical or environmental condition, operating history or projections, valuation, governmental approvals, governmental regulations or any other matter or thing relating to or affecting the Property. Except for the representations and warranties contained herein, Buyer agrees that with respect to the Property, Buyer has not relied upon and will not rely upon, either directly or indirectly, any representation or warranty of Seller. Buyer has conducted or will conduct such inspections and investigations of the Property including, but not limited to, the physical and environmental condition thereof, and rely upon same and, upon closing, shall assume the risk that adverse matters may not have been revealed by Buyer's inspections and investigations. Except for the representations and warranties expressly contained herein, Buyer acknowledges and agrees that upon closing, Seller shall sell and convey to Buyer, and Buyer shall accept the Property "AS IS," "WHERE IS," "WITH ALL FAULTS," and there are no oral agreements, warranties or representations, collateral to or affecting the Property by Seller or any third party. The terms and conditions of this paragraph shall expressly survive the Closing and not merge therein. EXHIBIT "B" 615/015610-0062 TO OPTION AGREEMENT 301961.17 AM02 -5- Other than with respect to a breach of an express representation of Seller set forth in this Agreement and/or the Option Agreement, and any matter with respect to which Seller has indemnified Buyer as set forth in the Option Agreement and/or the Purchase Agreement, effective as of the Close of Escrow, Buyer for itself and its successors and assigns hereby releases Seller and all of Seller's Affiliates from any and all liability in connection with any claims which Buyer may have against Seller. In addition, except with respect to the inaccuracy of representation by Seller regarding Hazardous Substances expressly set forth in this Agreement, Buyer hereby agrees not to assert any claims for losses, damages, liabilities, costs and expenses which are presently unknown, unanticipated and unsuspected, against Seller whether in tort, contract or otherwise, arising from Seller's ownership of the Property including, without limitation, any claim relating directly or indirectly to the existence of asbestos, lead or any hazardous substances on or environmental conditions of, the Property or arising under laws, or relating in any way to the quality of the environment at the Property. This release will survive the Close of Escrow. It is the intention of the parties that the foregoing release will be effective with respect to all matters, past and present, known and unknown, suspected and unsuspected. Buyer realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to losses, damages, liabilities, costs and expenses which are presently unknown, unanticipated and unsuspected, and Buyer further agrees that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Buyer nevertheless hereby intends to release, discharge and acquit Seller from any such unknown losses, damages, liabilities, costs and expenses. In furtherance of this intention, the Buyer hereby expressly waives any and all rights and benefits conferred upon it by the provisions of California Civil Code Section 1542, 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." Buyer acknowledges that the foregoing acknowledgments, releases and waivers including without limitation the waiver of the provisions of California Civil Code Section 1542 were expressly bargained for. Buyers initials Notwithstanding anything to the contrary herein, nothing in this Section 7 shall limit, nullify or affect Seller's representations and warranties set forth in the Option Agreement or in this Agreement. The provisions of this Section 7 shall survive any termination of this Agreement. EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -6- S. Miscellaneous. 8.1 Notices. All notices required to be delivered under this Agreement to the other party must be in writing and shall be: (i) personally delivered, (ii) sent by overnight courier, or (iii) sent certified mail, return receipt requested. Notices shall be deemed delivered effective upon receipt or rejection only. Notices shall be addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: To Buyer: La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92253 Attn: Mr. Mark Weiss Telephone: (760) 777-7031 Facsimile: (760) 777-7101 Copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson, Esq. Telephone: (714) 641-3000 Telecopier: (714) 546-9035 To Seller: Wal-Mart Stores, Inc. Sam M. Walton Development Complex 2001 S.E. loth Street Bentonville, Arkansas 72716-0550 Attn: Telephone: Telecopier: Copy to: Gresham, Savage, Nolan & Tilden, LLP 600 North Arrowhead Avenue, Suite 300 San Bernardino, California 92401-1148 Attn: Telephone: (909) 884-2171 Telecopier: (909) 888-2120_ 8.2 Eminent Domain. Nothing in the Option Agreement or in this Agreement shall be construed as limiting the eminent domain powers of the City or the Agency EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -7- 8.3 Time of the Essence. Time is of the essence of each of the terms, covenants, and conditions of this Agreement. 8.4 Risk of Loss. Prior to Seller's delivery of possession of the Property to Buyer at the Closing, the risk of loss or damage to the Property shall remain upon Seller. If the Property suffers damages as a result of any casualty prior to the Closing, then Seller shall give written notice thereof to Buyer as soon as practicable after the occurrence of the casualty. Buyer can elect to either: (i) accept the Property in its damaged condition, without any reduction in the Purchase Price, or (ii) terminate this Agreement, in which event neither party shall have any further rights or obligations hereunder, except as provided herein. 8.5 Condemnation. In the event all or any portion of the Property is taken or designated to be taken by condemnation proceedings, or proceedings in lieu thereof during the term of the Option Agreement or prior to the Close of Escrow, Buyer shall have the right to terminate this Agreement and cancel the Escrow by delivering to Seller and Escrow Holder written notice thereof. In the event Buyer does not elect to terminate this Agreement pursuant to this Section 8.5, Buyer shall close the transaction as contemplated hereby without any reduction in the Purchase Price, provided that Buyer shall be entitled to all condemnation proceeds upon the Close of Escrow. Seller shall consult with Buyer regarding any proposed settlement with the condemnor and Buyer shall have the reasonable right of approval thereof. Seller shall deposit any such proceeds received by Seller with Escrow Holder. 8.6 Binding on Heirs. This Agreement shall be binding upon the parties hereto and their respective heirs, representatives, transferees, successors, and assigns. 8.7 Entire Agreement, Waivers, and Amendments. This Agreement, the Option Agreement, and other documents incorporated herein by reference contain the entire understanding of the parties relating to the subject matter hereof, and supersede all negotiations and previous oral agreements between the parties with respect to all or part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged. Any amendment or modification to this Agreement must be in writing and executed by Seller and Buyer, and the City of La Quinta. 8.8 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the internal laws of" the State of California, without regard to principles of conflicts of law. 8.9 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. 8.10 Authority. The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 '8- entering into this Agreement does not violate any provision of any other agreement to which said party is bound. 8.11 No Withholding Because Non -Foreign Seller. Seller represents and warrants to Buyer that Seller is not, and as of the Close of Escrow will not be, a foreign person within the meaning of Internal Revenue Code Section 1445 or an out-of-state seller under California Revenue and Tax Code Section 18805. 8.12 Brokerage Commissions. Each party represents and warrants to the other that no third party is entitled to a broker's commission and/or finder's fee with respect to any portion of the transaction contemplated by this Agreement. Each party agrees to indemnify and hold the other harmless from and against all liabilities, costs, damages and expenses, including, without limitation, attorneys' fees, resulting from any claims or fees or commissions, based upon agreements by it, if any, to pay a broker's commission and/or finder's fee. 8.13 Default; Remedies. If any party hereto fails to timely perform any term or provision of this Agreement which it is obligated to perform, such party shall be in default of this Agreement; provided, however, the party shall not be deemed to be in default if (i) such party cures, corrects, or remedies such default within ten (10) days after receipt of written notice from the other party specifying such failure, or (ii) for such defaults that cannot reasonably be cured, corrected, or remedied within ten (10) days, if such party commences to cure, correct, or remedy such failure within ten (10) days after receipt of written notice specifying such failure and thereafter diligently prosecutes such cure, correction, or remedy to completion. If a default of Seller is not timely cured, corrected, or remedied, Buyer's remedy for an uncured default by Seller or its successors (except for indemnity obligations by Seller), if applicable, notwithstanding anything to the contrary contained in this Agreement, or any other agreement to the contrary, shall be limited to equitable remedies subject to, and to the extent permitted by, California law. If a default of Buyer or Buyer's successors or assigns, if applicable, is not timely cured, corrected, or remedied, Seller's remedy for an uncured default by Buyer and its successors (except for indemnity obligations by Buyer), if applicable, notwithstanding anything in this Agreement, or any other agreement to the contrary, shall be limited to equitable remedies subject to, and to the extent permitted by, California law. Except for the parties' indemnity obligations pursuant to this Agreement, in no event shall either party be entitled to recover damages (whether monetary, consequential, economic, or otherwise) from the other or its successors. 8.14 Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -9- 8.15 Assignment. During the pendency of the Escrow contemplated hereunder, Buyer may freely assign its rights under this Agreement, provided that, notwithstanding any such assignment, Buyer shall remain liable for any indemnification provisions set forth herein. 8.16 Attachments. Attachment Nos. 1, 2, and 3 to this Agreement are incorporated herein by this reference and made a part hereof. Said Exhibits are identified as follows: 1 - LEGAL DESCRIPTION OF LAND 2 - GRANT DEED 3 - NON -FOREIGN AFFIDAVIT EXHIBIT "B" 615/015610-0062 TO OPTION AGREEMENT 301961.17 AM02 -1 0- IN WITNESS WHEREOF, Buyer and Seller have entered into this Agreement as of the date first set forth above. "Seller" WAL-MART STORES, INC., a Delaware corporation By: Its: By: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY Thomas P. Genovese, Executive Director ATTEST: June S. Greek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney EXHIBIT"B" 615/015610-0062 TO OPTION AGREEMENT 301961.17 AM02 ACCEPTANCE BY ESCROW HOLDER First American Title Insurance Company hereby acknowledges that it has received a fully executed copy of the Agreement for Conveyance of Property and Joint Escrow Instructions [and Amendment to Agreement for Conveyance of Property and Joint Escrow Instructions] and agrees to act as the Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to the Escrow Holder. Escrow Holder shall execute two originals of this Acceptance and deliver one original to each Seller and Buyer promptly following the opening of Escrow for attachment to their execution originals of this Agreement. DATE: , 20 First American Title Insurance Company By: _ Name: Title: EXHIBIT "B" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -12- ATTACHMENT NO. 1 LEGAL DESCRIPTION OF LAND That certain real property located in the County of Riverside, State of California, legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT NO. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 ATTACHMENT NO. 1 615/015610-0062 TO AGREEMENT FOR CONVEYANCE OF PROPERTY 301961.17 AM02 AND JOINT ESCROW INSTRUCTIONS ATTACHMENT NO. 2 WHEN RECORDED MAIL TO AND MAIL TAX STATEMENTS TO: (Space Above this Line for Recorder's Use) GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, WAL- MART STORES, INC., a Delaware corporation ("Grantor") hereby grants to ("Grantee") that certain real property located in the County of Riverside, State of California, described in the legal description attached hereto as Exhibit "A" and incorporated herein by this reference (the "Property"). IN WITNESS WHEREOF, Grantor has executed this Grant Deed on the day and year hereafter written. WAL-MART STORES, INC., a Delaware corporation Date: By: Name: Its: By: Name: Its: ATTACHMENT NO. 2 615/015610-0062 TO AGREEMENT FOR CONVEYANCE OF PROPERTY 301961.17 AM02 AND JOINT ESCROW INSTRUCTIONS STATE OF CALIFORNIA ) ss. COUNTY OF On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ss. COUNTY OF On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] ATTACHMENT NO. 2 TO AGREEMENT FOR CONVEYANCE OF PROPERTY AND JOINT ESCROW INSTRUCTIONS 615/015610-0062 301961.17 AM02 -2- EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY That certain real property located in the County of Riverside, State of California, legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT NO. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 615/015610-0062 EXHIBTr "A" 301961.17 AM02 TO GRANT DEED Document No.: Recorded: STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION NOT BE MADE A PART OF THE PERMANENT RECORD IN THE OFFICE OF THE COUNTY RECORDER (PURSUANT TO SECTION 11932 OF THE REVENUE AND TAXATION CODE) TO: Recorder, County of Riverside Request is hereby made in accordance with the provisions of the Documentary Transfer Act that the amount of the tax due not be shown on the original document which names: Grantor: Wal-Mart Stores, Inc., a Delaware corporation Grantee: The property described in the accompanying document is located in the County of Riverside, State of California. The amount of tax due on the accompanying document is S computed on full value of the property conveyed. (Signature of Grantor or Agent) (Firm Name) Note: After the permanent record is made, this form will be affixed to the conveying document and returned with it. 615/015610-0062 301961.17 AM02 ATTACHMENT NO. 3 NON -FOREIGN AFFIDAVIT Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon disposition of a U.S. real property interest by WAL- MART STORES, INC., a Delaware corporation ("Transferor"), the undersigned hereby certifies the following on behalf of Transferor: 1. Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); 2. Transferor's U.S. employer identification number is ; and 3. Transferor's office address is The undersigned understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief, it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of Transferor. Dated: WAL-MART STORES, INC., a Delaware corporation By: Its: "Transferor" Address of Property for Sale: See legal description attached as Exhibit "A" ATTACHMENT NO. 3 615/015610-0062 TO AGREEMENT FOR CONVEYANCE OF PROPERTY 301961.17 AM02 AND JOINT ESCROW INSTRUCTIONS EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY That certain real property located in the County of Riverside, State of California legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT NO. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 615/015610-0062 EXHIBIT "D" 301961.17 AM02 TO OPTION AGREEMENT EXHIBIT "C" MEMORANDUM OF OPTION AGREEMENT RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92253 Attention: Mr. Mark Weiss (Space Above Line for Recorder's Use) This Memorandum of Option Agreement is recorded at the request and for the benefit of the City of La Quinta and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. LA QUINTA REDEVELOPMENT AGENCY By:_ Its:_ Dated: 12000 MEMORANDUM OF OPTION AGREEMENT THIS MEMORANDUM OF OPTION AGREEMENT ("Memorandum") is entered into this day of , 2002, by and between WAL-MART STORES, INC., a Delaware corporation ("Wal-Mart") and the LA QUINTA REDEVELOPMENT AGENCY, a public body and corporate politic ("Agency"). This Memorandum is made with reference to the following: I . Optionor is the owner in fee of that certain real property located in the County of Riverside, State of California, more particularly described in the legal description attached hereto as Attachment No. 1 and incorporated herein by this reference (the "Property"). 2. Wal-Mart hereby grants to Agency the right to acquire the Property on the terms and conditions stated in that certain unrecorded Option Agreement between Wal-Mart and 615/015610-0062 EXHIBIT "C" 301961.17 AM02 TO OPTION AGREEMENT Agency dated August _, 2002 (the "Option Agreement"). The terms of the Option Agreement are incorporated herein by this reference as if set forth in full. 3. Section 1.5 of the Option Agreement provides for Wal-Mart and Agency to enter into this Memorandum and to record the same in the Official Records of the County of Riverside to provide notice to all persons of the existence of said Option Agreement. This Memorandum is prepared for the purpose of recordation and in no way modifies the provisions of the Option Agreement. IN WITNESS WHEREOF, Wal-Mart and Agency have entered into this Memorandum as of the date first set forth above. "WAL-MART" WAL-MART STORES, INC., a Delaware corporation By: Name: Its: By: _ Name: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Thomas P. Genovese, Executive Director ATTEST: June S. Greek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney EXHIBIT "C" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -2- STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ss. COUNTY OF On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] EXHIBIT "C" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -3- STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] EXHIBIT "C" TO OPTION AGREEMENT 615/015610-0062 301961.17 AM02 -4- ATTACHMENT NO. 1 LEGAL DESCRIPTION OF PROPERTY That certain real property located in the County of Riverside, State of California, legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT NO. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 615/015610-0062 EXHIBIT " C" 301961.17 kM02 TO OPTION AGREEMENT Recording Requested By And When Recorded Return To: Attn: EXHIBIT "D" FORM OF OUITCLAIM [SPACE ABOVE FOR RECORDER] QUITCLAIM OF OPTION TO PURCHASE This QUITCLAIM OF OPTION TO PURCHASE ("Quitclaim") is made and entered into as of by the LA QUINTA REDEVELOPMENT AGENCY, a public body and corporate politic ("RDA"), with reference to the following recitals which are incorporated herein: RECITALS: A. WAL-MART STORES, INC., a Delaware corporation ("Wal-Mart") is the owner of certain real property situated in the City of La Quinta, County of Riverside, State of California, more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference (collectively, the "Real Property"). B. Wal-Mart granted the RDA an option to purchase the Real Property and certain other property (as more particularly defined in the Option Agreement, as hereinafter defined) pursuant to that certain Option Agreement dated , 2002 (the "Option Agreement"), by and between Wal-Mart, as "Seller", and the RDA, as "Buyer", a memorandum of which was recorded on 2002, in the Official Records of Riverside County, California as Instrument No. (the "Memorandum"). C. Pursuant to Section 4 of the Option Agreement, the RDA is obligated to provide a quitclaim to remove the Memorandum of Option Agreement as a cloud on title to the Real Property. RDA and Wal-Mart therefore desire to effect RDA's remise, release, and quitclaim of its right, title, and interest in and to the Option Agreement through this Quitclaim of Option Agreement. 615/015610-0062 EXHIBIT "D" 301961.17 AM02 TO OPTION AGREEMENT QUITCLAIM: NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged: 1. RDA does hereby remise, release, and quitclaim all of RDA's right, title, and interest in and to the Option Agreement, as referred to in the Memorandum. 2. This Quitclaim does not affect any rights or obligations of RDA or Wal-Mart set forth in any document or instrument other than as described in this Quitclaim of Option Agreement. IN WITNESS WHEREOF, this Quitclaim of Option Agreement has been executed by RDA and Wal-Mart on the date first written above and is to be effective upon its recordation in the Official Records of Riverside County, California. ATTEST: Agency Secretary RUTAN & TUCKER, LLP Agency Counsel U41-17.1v LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By:_ Name: Its: RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92253 Attention: Mr. Mark Weiss (Space Above Line for Recorder's Use) This Memorandum of Option Agreement is recorded at the request and for the benefit of the City of La Quinta and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. LA QUINTA REDEVELOPMENT A ENCY By: Its: Executive Director Dated: August 1 12002 MEMORANDUM OF OPTION AGREEMENT THIS MEMORANDUM OF OPTION AGREEMENT ("Memorandum") is entered into this l;�,' day of , 2002, by and between WAL-MART STORES, INC., a Delaware corporation ("Wal-Mart") and the LA QUINTA REDEVELOPMENT AGENCY, a public body and corporate politic ("Agency"). This Memorandum is made with reference to the following: 1. Optionor is the owner in fee of that certain real property located in the County of Riverside, State of California, more particularly described in the legal description attached hereto as Attachment No. 1 and incorporated herein by this reference (the "Property"). 2. Wal-Mart hereby grants to Agency the right to acquire the Property on the terms and conditions stated in that certain unrecorded Option Agreement between Wal-Mart and Agency dated August _, 2002 (the "Option Agreement"). The terms of the Option Agreement are incorporated herein by this reference as if set forth in full. 3. Section 1.5 of the Option Agreement provides for Wal-Mart and Agency to enter into this Memorandum and to record the same in the Official Records of the County of Riverside 615/015610-0062 309890.01 AM02 to provide notice to all persons of the existence of said Option Agreement. This Memorandum is prepared for the purpose of recordation and in no way modifies the provisions of the Option Agreement. IN WITNESS WHEREOF, Wal-Mart and Agency have entered into this Memorandum as of the date first set forth above. Appro ; d. as to legal terms only bly A,&— l�''a, Mart Legal Team Date: ATTEST: June _SGreek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney "WAL-MART" WAL-MART STORES, INC., a Delaware corporation By: Name: a ar Its: e««tant vice Presidertc By: Name: �1- (3 acre Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Thomas P. Genovese, Executive Director 615/015610-0062 _2- 309890.01 AM02 STATE OF ss. COUNTY OF ) On QjA*U.At a.lo aop,'�, before me, Po , personally appeared personally known to me to be the person(s) whose name(,&) is/a c subscribed to the within instrument and acknowledged to me that he/sh,@ fey executed the same in his/her' authorized capacity(ies), and that by his/signature(&) on the instrument the person(.$) or the entity upon behalf of which the person(&) acted, executed the instrument. Witne fw eal. Jane Bennett County of Benton Notary Public - Arkansas My Commission Exp. 03/13/2012 Notary lic [SEAL] STATE OF ) ss. COUNTY OF ) On , before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 615/015610-0062 _ 3 09890.0 1 a08/12/02 _3 to provide notice to all persons of the existence of said Option Agreement. This Memorandum is prepared for the purpose of recordation and in no way modifies the provisions of the Option Agreement. IN WITNESS WHEREOF, Wal-Mart and Agency have entered into this Memorandum as of the date first set forth above. "WAL-MART" WAL-MART STORES, INC., a Delaware corporation By: Name: Its: By: Name: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By. Thomas P. Genovese, Executive Director ATTEST: Juri . Greek, Agency Clerk a OVED S TO FORM: M. Kathe ne Jenson Agency Attorney 615/015610-0062 -2- 309890.01 PM02 STATE OF CALIFORNIA ) ss. COUNTY OF �'�� a-- , before me, \ tiJtk,.� o� , On person ly known to me (-e appeared �h� G`A to be the person(s) whose name(s) is/are prove subscribed to�teithin instrument and acknowledged to me thathe/she/they s) on the executed the s , and that by ent the person(s) or the entity up behalfe in his/her/their authorized capon )of which the person(s) acted executed the instrument. Witness my hand and official seal. PHYLLIS MANLEY t Commission # 1196590 Z z Notary Public - California Z Riverside County My Comn-6#es Oct 16, [SEAL] STATE OF CALIFORNIA ) ) ss. COUNTY OF Notary Pub is before me, , personally appeared On personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 615/015610-0062 -3 - 309890.01 PM02 ATTACHMENT NO. I LEGAL DESCRIPTION OF PROPERTY That certain real property located in the County of Riverside, State of California, legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT No. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 615/015610-0062 309890.01 PM02 Recording Requested ) By And When ) Recorded Return To: ) Attn: ) L I)r /1 %-L' 11"v r - a — QUITCLAIM OF OPTION TO PURCHASE This QUITCLAIM OF OPTION TO PURCHASE ("Quitclaim") is made and entered into as of August 12, 2002, by the LA QUINTA REDEVELOPMENT AGENCY, a public body and corporate politic ("RDA"), with reference to the following recitals which are incorporated herein: RECITALS: A. WAL-MART STORES, INC., a Delaware corporation ("Wal-Mart") is the owner of certain real property situated in the City of La Quinta, County of Riverside, State of California, more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference (collectively, the "Real Property"). B. Wal-Mart granted the RDA an option to purchase the Real Property and certain other property (as more particularly defined in the Option Agreement, as hereinafter defined) pursuant to that certain Option Agreement dated August 12 , 2002 (the "Option Agreement"), by and between Wal-Mart, as "Seller", and the RDA, as "Buyer", a memorandum of which was recorded on , 2002, in the Official Records of Riverside County, California as Instrument No. (the "Memorandum"). C. Pursuant to Section 4 of the Option Agreement, the RDA is obligated to provide a quitclaim to remove the Memorandum of Option Agreement as a cloud on title to the Real Property. RDA and Wal-Mart therefore desire to effect RDA's remise, release, and quitclaim of its right, title, and interest in and to the Option Agreement through this Quitclaim of Option Agreement. 615/015610-0062 309891.01 PM02 QUITCLAIM: NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged: l . RDA does hereby remise, release, and quitclaim all of RDA's right, title, and interest in and to the Option Agreement, as referred to in the Memorandum. 2. This Quitclaim does not affect any rights or obligations of RDA or Wal-Mart set forth in any document or instrument other than as described in this Quitclaim of Option Agreement. IN WITNESS WHEREOF, this Quitclaim of Option Agreement has been executed by RDA and Wal-Mart on the date first written above and is to be effective upon its recordation in the Official Records of Riverside County, California. AT ST: ,7 APPROVED AS TO FORM: RUTAN & TUCKER LLP Agency Counsel "RDA»: LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: ThOhias G e Its: ExecucLbr 615/015610-0062 -2_ 309891.01 PM02 State of California ) ss. County of Riverside ) On '�' ` 1a I before me, Phyllis Manley, Notary Public, personally appeared Thomas P. Genovese, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ■ (Seal) 5 NAAN''V F S ccm r icn # 119G-590 a r N^, .a y t?ub!IC _ Cc'.ifioMia Z Ridc'si�.o County fiyccrnm.a Cct16.2002 I EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY That certain real property located in the County of Riverside, State of California, legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT NO. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 615/015610-0062 309891.01 PM02 Recording Requested .By First American Title company RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: La Quinta Redevelopment Agency 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92253 Attention: Mr. Mark Weiss DOC N 2002-499075 09/09/2002 08:00A Fee:22.00 Page 1 of 6 Recorded in Official Records County of Riverside Gary L. Oral Assessor, County Clerk 8 Recorder 1111111111111111111111111111111111111111111111111111111 M S U PAGE SIZE DA PCOR NOCOR SMF MISC. I 77 A R L COPY LONG REFUND NCHG EXAM l 2 / ( pace Above Lille for Recorder's Use) This Memorandum of Option Agreement is recorded at the request and for the benefit of the City of La Quinta and is JB exempt from the payment of a recording fee pursuant to Government Code Section 6103. LA QUINTA REDEVELOPMENT A ENCY By: Its: Executive Director Dated: August 12 , 2002 MEMORANDUM OF OPTION AGREEMENT THIS MEMORANDUM OF OPTION AGREEMENT ("Memorandum") is entered into this I;V,� day of ,, , 2002, by and between WAL-MART STORES, INC., a Delaware corporation ("Wal-Mart") and the LA QUINTA REDEVELOPMENT AGENCY, a public body and corporate politic ("Agency"). This Memorandum is made with reference to the following: 1. Optionor is the owner in fee of that certain real property located in the County of Riverside, State of California, more particularly described in the legal description attached hereto as Attachment No. 1 and incorporated herein by this reference (the "Property"). 2. Wal-Mart hereby grants to Agency the right to acquire the Property on the terms and conditions stated in that certain unrecorded Option Agreement between Wal-Mart and Agency dated August _, 2002 (the "Option Agreement"). The terms of the Option Agreement are incorporated herein by this reference as if set forth in full. 3. Section 1.5 of the Option Agreement provides for Wal-Mart and Agency to enter into this Memorandum and to record the same in the Official Records of the County of Riverside 615/015610-0062 309890.01 AM02 to provide notice to all persons of the existence of said Option Agreement. This Memorandum is prepared for the purpose of recordation and in no way modifies the provisions of the Option Agreement. IN WITNESS WHEREOF, Wal-Mart and Agency have entered into this Memorandum as of the date first set forth above. AP ;e"4al terms orily l�ujf;Aan Legal Tearn ATTEST: June S. Greek, Agency Clerk APPROVED AS TO FORM: M. Katherine Jenson Agency Attorney 615/015610-0062 309890.01 AM02 "WAL-MART" WAL-MART STORES, INC., a Delaware corporation By: _ /A IV Name:f-t.UUUFL ear Its: Assistant Vice President By: 4't Name: Its: n acre "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic RIN Thomas P. Genovese, Executive Director -2- ni�uuuiiiAauiu�uuiu�uuimmiuim Tm w��:•„N STATE OF � ) u ) COUNTY OF ) On t;, o , befor me, _ Qo 7 personally appeared r iv CG personalty known to me (44r- to be the person(s) whose name(&) is/are subscribed to the within instrument and acknowledged to me that he/s.4e44ey executed the same in his/he"44e4 authorized capacity(ies), and that by his/hQ4t4@ir--signatureO on the instrument the person(.$) or the entity upon behalf of which the person&) acted, executed the instrument. Witne �„j�yaj eal. Jane Bennett County of Benton Notary Public - Arkansas My Commission Exp. 03/1312012 Notary lic [SEAL] STATE OF ) ss. COUNTY OF ) On , before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 615/015610-0062 309890.01 a08/12/02 -3- 2002-499075 to provide notice to all persons of the existence of said Option Agreement. This Memorandum is prepared for the purpose of recordation and in no way modifies the provisions of the Option Agreement. IN WITNESS WHEREOF, Wal-Mart and Agency have entered into this Memorandum as of the date first set forth above. "WAL-MART" WAL-MART STORES, INC., a Delaware corporation By: Name: Its: By: Name: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Thomas P. Genovese, Executive Director ATTEST: Juri . Greek, Agency Clerk APPROVED S TO FORM: l M. Kathe ne Jenson Agency Attorney 615/015610-0062 _ 309890.01 PM02 -2 111111111111111111111111111111111111111111111111111111111111-�"-.W° STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me,(,, , personally appeared k'w a personally known to me (m to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. PHYLLIS MANLEY "e Commission # 1196590 7 Z Notary F&Ic - Ca'ifomia � z s r (&enida Counly my Comm Expkm Oct lNotary Public [SEAL] STATE OF CALIFORNIA ) ) ss. COUNTY OF On , before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 615/015610-0062 _ 309890.01 PM02 -3 i IIIIII IIIIII IIIIII IIII IIIII III IIIIII III IIIII IIII IIII @9@9� 5of 02 F hrS@@Fl ATTACHMENT NO. 1 LEGAL DESCRIPTION OF PROPERTY That certain real property located in the County of Riverside, State of California, legally described as follows: PARCEL A: PARCEL 6, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, IN BOOK 172, PAGES 21, 22, 23, 24, 25, 26 AND 27 OF PARCEL MAPS, PARCEL B: EASEMENTS FOR INGRESS, EGRESS, DRIVEWAY USE, PARKING, AND UTILITIES AS CREATED BY A DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS RECORDED AUGUST 26, 1991 AS INSTRUMENT No. 298878 OF OFFICIAL RECORDS. APN: 643-080-004 IIIII III IIIII El I gv 09 F. £ gaSRt�P 0990.01615/015610-0062 PM02 113IIIIIIIII IE.