Fifth Amendment To Purchase And Sale Agreement With Joint Escrow Instructions

Exhibit 10.53


FIFTH AMENDMENT TO PURCHASE AND SALE

AGREEMENT WITH JOINT ESCROW INSTRUCTIONS


This FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT WITH JOINT ESCROW INSTRUCTIONS (the " Amendment" ) is made as of November 18, 2003 by and between UNIFIED WESTERN GROCERS, INC., a California corporation (the " Seller" ), and AH INVESTORS, LLC, a California limited liability company (the " Buyer" ), who agree as follows:

1. Recitals . This Amendment is made with reference to the following facts and circumstances:


(A) The Seller and The Alamo Group, Inc. (" Alamo" ) were parties to a Purchase and Sale Agreement With Joint Escrow Instructions made as of June 19, 2003, as modified by an Addendum to Purchase and Sale Agreement With Joint Escrow Instructions (the " Addendum" ) made as of June 25, 2003, a First Amendment to Purchase and Sale Agreement With Joint Escrow Instructions made as of July 31, 2003, a Second Amendment to Purchase and Sale Agreement With Joint Escrow Instructions made as of August 15, 2003, a Third Amendment to Purchase and Sale Agreement With Joint Escrow Instructions made as of August 22, 2003, and a Fourth Amendment to Purchase and Sale Agreement With Joint Escrow Instructions made as of August 27, 2003 (collectively, the " Agreement" ). By assignment from Alamo, the Buyer has accepted and assumed all of Alamo' s right, title, interest and obligations under the Agreement.


(B) The Seller and the Buyer desire to amend the Agreement to eliminate certain of the assets being transferred thereunder, to provide for the permitted assignment of the Agreement by the Buyer to AH Investors, LLC, a California limited liability company, and to make certain other amendments and agreements as set forth in this Amendment.


2. Defined Terms . Capitalized terms used but not otherwise defined in this Amendment have the meanings given to them in the Agreement.

3. Amendment . The Agreement is amended in its entirety to read as set forth in attached Exhibit " A" which is incorporated herein by this reference.


4. Agreement Remains in Effect . Except as amended by this Amendment, the Agreement remains unmodified and in full force and effect.


[Signatures Are on the Next Page]


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The parties have caused this Amendment to be duly executed by their respective duly authorized officers or agents as of the date first set forth above.


UNIFIED WESTERN GROCERS, INC., a California corporation

AH INVESTORS, LLC,

a California limited liability company

By:

/s/ ROBERT M. LING, JR. By:


/s/ DONALD F. GAUBE Robert M. Ling, Jr., Executive Vice President and Corporate Secretary

__________________________________________________ (Print Name & Title)

By:

/s/ GARY C. HAMMETT By:

Gary C. Hammett Vice President - Real Estate

__________________________________________________ (Print Name & Title)


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EXHIBIT " A"


PURCHASE AND SALE AGREEMENT

WITH JOINT ESCROW INSTRUCTIONS


THIS PURCHASE AND SALE AGREEMENT WITH JOINT ESCROW INSTRUCTIONS (" Agreement" ) is made and entered into as of June 19, 2003, by and between UNIFIED WESTERN GROCERS, INC., a California corporation (" Seller" ), and AH INVESTORS, LLC, a California limited liability company (" Buyer" ) (collectively, the " Parties" and individually, a " Party" ), who agree as follows:


RECITALS

A. Seller or its subsidiaries (the " Affiliated Sellers" and, collectively with Seller, the " Sellers" and individually a " Seller" ), is the tenant of real property relating to the grocery store locations identified on attached Exhibit A (each a " Location" and, collectively, the " Locations" ).

B. The Sellers desire to sell or otherwise transfer to Buyer, and Buyer wishes to purchase and assume, the Sellers' interest in the Locations and certain related assets to the extent provided herein and on and subject to the terms and conditions hereof.


C. Buyer has agreed to assume certain liabilities of the Sellers as more specifically provided herein. 1. Agreement to Sell and Purchase.

1.1 Assets to be Conveyed.

On the terms and subject to the conditions set forth in this Agreement, on the Closing Date (as hereinafter defined) Seller shall (and shall cause the Affiliated Sellers to) convey, transfer, assign, sell and deliver to Buyer, and Buyer shall acquire, accept and purchase, to the extent transferable or assignable by the Sellers all of the right, title and interest of the Sellers in and to the following assets comprising or relating to the Locations (collectively, the " Assets" ) as the same may exist on the Closing Date, but excluding the Excluded Assets (as defined in Section 1.2):

(a) All right, title and interest of the Sellers in and to the leases (each a " Lease" and, collectively, the " Leases" ) relating to the Locations.


(b) All right, title and interest of the Sellers in and to the subleases (each a " Sublease" and, collectively, the " Subleases" ) located at and relating to those Locations identified on attached Exhibit A as having a sublease.


(c) All furniture, fixtures and equipment, including, without limitation, machinery, shopping carts, if any, shelving and display cases, and other personal property, but excluding front-end systems, fork lifts and motor vehicles (trucks, vans and automobiles), owned by the Sellers (the " FF&E" ) located at and relating to those Locations identified on attached Exhibit A as having FF&E.


-1- 1.2 Assets Excluded.

Notwithstanding anything to the contrary in this Agreement, Assets not described in Section 1.1 and the property and assets described below (collectively, the " Excluded Assets" ) are expressly excluded from the transaction contemplated by this Agreement and do not comprise the Assets being transferred hereunder:


(a) Any FF&E owned by third parties, FF&E disposed of in the ordinary course of business prior to the Closing Date, and those items or categories of FF&E set forth on attached Exhibit B (the " Excluded FF&E" ).

(b) Any signs or personal property which contain the name (or trade derivative thereof) or logo of Seller or its affiliates including all uniforms supplied to the Sellers' employees.


(c) Trademarks, trade names, and similar intangibles including any right to use or interest in any of the names of Seller, the Affiliated Sellers, or any other subsidiary, affiliate or division of Seller, or any similar name or intangible registered or licensed to any of the foregoing, or any tradenames used by Seller.


(d) All property becoming upon installation or expiration of the relevant Lease or other leases, the property of the landlord or lessor thereof.

(e) Any Location (together with its related Assets) excluded from the transactions contemplated by this Agreement pursuant to an express provision of this Agreement.

1.3 Assets are Indivisible.

Except as otherwise provided herein (including Section 7.1), the right to purchase the Assets is indivisible. Such Assets may not be individually purchased without all of the others, unless expressly permitted or required pursuant to the provisions of this Agreement.

2. Consideration to be Paid.

2.1 Price for Assets.

The price payable by the Seller to the Buyer in connection with the sale and transfer of the Assets shall be the sum of Four Million Five Hundred Thousand Dollars ($4,500,000) and shall be paid in cash at closing (the " Total Price" ).

2.2 Other Amounts.

Buyer shall also pay to Seller and Seller shall pay to Buyer at or after closing all other amounts specified to be paid by Buyer or Seller at or after closing under this Agreement.


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4. Possession.

Buyer shall take possession of the Locations together with the other Assets being transferred hereunder at the closing, and shall assume all risk of loss by fire or other casualty and all risks relating to the operation of the business with respect thereto occurring upon or following the taking of such possession. The keys to the Locations and the combinations to all safes at the Locations shall be delivered to the designated Buyer representative at such time and Buyer shall immediately make its own arrangements to have the locks changed.

5. Escrow and Closing Date.

5.1 Premises Escrow.

An escrow (the " Premises Escrow" ) is to be opened to consummate the transfer of the Assets according to the terms of this Agreement at the office of First American Title Insurance Company, 1 First American Way, Santa Ana, California 92707 (the " Premises Escrow Holder" ). The Premises Escrow is to be opened within one (1) business day after the execution of this Agreement. A signed counterpart of this Agreement is to be delivered to the Premises Escrow Holder and will serve as escrow instructions, subject to the provisions of the Premises Escrow Holder' s standard conditions for acceptance of escrow, but only to the extent that the standard conditions impose no additional obligations or liabilities on the parties, and further subject to the terms and conditions in this Agreement, the latter to control in the case of conflict. 5.2 Closing Date.

Subject to the terms of Section 16.3, the closing of the transactions contemplated by this Agreement shall occur on December 3, 2003, or such earlier or later date as is mutually agreed on in writing by the Parties (the " Closing Date" ).

5.3 Survival of Covenants, Representations and Warranties.

The covenants, representations and warranties contained in this Agreement shall survive the closing of this transaction and shall not be merged into the " Assignment Agreement" and/or the " Bill of Sale" (as hereinafter defined).

6. Information, Title Review and Inspections.

6.1 Information.

Not later than five (5) days following the opening of the Premises Escrow, Seller will provide Buyer with copies of all documents in Seller' s possession relating to the Locations (the " Information" ), including, without limitation, the Leases and Subleases and any environmental


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studies and reports, but excluding any letters of intent, offers or other documents relating to Seller' s marketing efforts respecting the Locations. It is acknowledged and agreed that the Information is being supplied by Seller for information purposes only and without representation or warranty of any kind as to accuracy or completeness. 6.2 Title Review.

Buyer will have the opportunity to review title matters respecting the Locations in accordance with the following provisions:

(a) Upon the opening of the Escrow, Buyer, at its sole cost, may have a title insurance company (the " Title Company" ) of Buyer' s choice issue to Buyer (with a copy to Seller) a preliminary report (the " Preliminary Report" ) for such form of CLTA or ALTA Leasehold Policy of Title Insurance (the " Title Policy" ) respecting each Location as Buyer may elect. If Buyer does not give written notice of cancellation during the Cancellation Period (as defined in Section 7.1), then after the expiration of the Cancellation Period and until the expiration of the Inspection Period (as defined in Section 6.3) Buyer may give written notice to Seller of its approval or disapproval of each title exception (the " Exceptions" ) shown in each Preliminary Report. Failure by Buyer to give written notice of approval or disapproval of the Exceptions in a given Preliminary Report before the expiration of the Inspection Period will be deemed to be approval of the Exceptions in such Preliminary Report. If Buyer so gives written notice of disapproval of any Exceptions in a given Preliminary Report, Seller will have ten (10) days following receipt of the disapproval in which to give written notice to Buyer that it will either (a) remove or cause to be insured over the disapproved Exceptions or (b) eliminate the Location which is the subject of such Preliminary Report from the transaction under this Agreement. If Seller gives written notice of its election under (b) above, Buyer may by written notice given to Seller within five (5) days thereafter waive the disapproved Exceptions and negate Seller' s election under (b) above. If a Location is eliminated by Seller, such Location and its related Assets will be deemed to be Excluded Assets and the price for the Locations will be reduced by the amount allocated to such Location on attached Exhibit C .

(b) Notwithstanding the foregoing provisions of Section 6.2(a) to the contrary, Buyer will have no right to disapprove of the following Exceptions: (i) liens for taxes and assessments not yet delinquent or the validity of which is being contested in good faith by appropriate proceedings; (ii) all utility company rights and easements, provided that the same do not materially adversely affect the use of a Location for the purposes permitted by the Lease applicable to such Location; (iii) all laws, rules, regulations, statutes or ordinances affecting a Location; (iv) all ground leases, mortgages and deeds of trust which are superior to the Lease applicable to a Location; and (iv) any encumbrances, easements and other restrictions which do not materially adversely affect the use of a Location for the purposes permitted by the Lease applicable to such Location. 6.3 Inspections.

For a period of sixty (60) days following the opening of the Escrow (the " Inspection Period" ), Buyer will have the right, at its cost, to carry out such physical, environmental and other tests and inspections (the " Inspections" ) of the Locations as it deems appropriate,


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including, without limitation, the conducting of Phase I environmental studies; provided, that Buyer will indemnify and hold Seller harmless from and against all claims, losses, liabilities, damages, actions, judgments, costs and expenses (including reasonable attorneys' fees) arising out of any such Inspections. If Buyer does not give written notice of cancellation during the Cancellation Period (as provided in Section 7.1), and if Buyer objects to any matters disclosed by the Inspections, then after the expiration of the Cancellation Period and until the expiration of the Inspection Period Buyer may give Seller written notice of such objections (a " Notice of Objection" ); provided, that Buyer will only be entitled to give a Notice of Objection if the reasonable cost of remedying such objections exceeds $1,260,000 (the " Limit" ). If Buyer is entitled to and gives a Notice of Objection, Seller will have ten (10) days following receipt of the Notice of Objection in which to give written notice to Buyer that it will either (a) pay to Buyer the amount by which the cost of remedying the objections exceeds the Limit, or (b) eliminate a Location or Locations from the transaction under this Agreement such that the cost of remedying the remaining objections does not exceed the Limit. If Seller gives written notice of its election under (b) above, Buyer may by written notice given to Seller within five (5) days thereafter waive the objections contained in its Notice of Objection and negate Seller' s election under (b) above. If a Location is eliminated by Seller, such Location and its related Assets will be deemed to be Excluded Assets and the price for the Locations will be reduced by the amount allocated to such Location on attached Exhibit C .

7. Buyer' s Right of Cancellation

Buyer will have the option, in its sole discretion, to cancel the transaction contemplated hereby and terminate this Agreement as to all (but not less than all) of the Locations by the giving of written notice of cancellation at any time following the opening of the Escrow and on or before August 29, 2003 (the ' Cancellation Period' ). Such right of cancellation and termination may be exercised for any reason, including without limitation, disapproval of any matters disclosed as a result of the reviews and inspections performed by it under Section 6. Following the expiration of the Cancellation Period, the Transaction may not be cancelled nor this Agreement terminated except as otherwise provided in this Agreement.

8." AS-IS" Transaction and Limited Warranties.

8.1" As-Is" Transaction.

Buyer hereby expressly acknowledges and agrees that prior to the Closing Date, Buyer will complete any and all Inspections and other reviews and examinations with respect to any and all aspects of the Locations and Assets as Buyer deems necessary or desirable, including, without limitation, the existence or availability of any permits or approvals from any governmental authorities and the existence of any Hazardous Materials (as defined in Section 11.3) in, on, under or around the Locations and Assets. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLERS SET FORTH IN THIS AGREEMENT, SELLERS ARE NOT MAKING, HAVE NOT MADE, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ASPECT OR FEATURE OF THE LOCATIONS OR ASSETS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY,


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MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, BUYER IS ACCEPTING POSSESSION OF THE LOCATIONS AND ASSETS ON AN " AS IS, WITH ALL FAULTS" BASIS, INCLUDING, WITHOUT LIMITATION, BOTH LATENT AND PATENT DEFECTS, AND BUYER WAIVES ALL CLAIMS AGAINST SELLERS (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR INDEMNIFICATION) WITH RESPECT THERETO.

8.2 Limited Warranties.

Buyer hereby affirms and acknowledges that neither Seller nor the Affiliated Sellers nor any of their respective officers, directors, agents, employees, accountants, advisors and/or attorneys (collectively the " Exculpated Parties" ) have made nor has Buyer relied upon any representation, warranty or promise whether oral or written, express or implied, by operation of law or otherwise, with respect to the Assets or any other subject matter of this Agreement except as otherwise expressly set forth in this Agreement. Without limitation, Buyer acknowledges that, except as specifically set forth to the contrary in this Agreement, no warranties or representations, expressed or implied, of any kind whatsoever have been made by any of the Exculpated Parties, or will be relied upon, and Buyer hereby releases the Exculpated Parties from any claims with respect to the general plan designation, zoning, value, use, tax status or physical condition of the Assets including, without limitation, the premises which are the subject of the Leases, or any part thereof, including, without limitation, the flood elevations, drainage patterns, soil and subsoil composition and compaction level, and other conditions at such premises, or with respect to the existence or non-existence of Hazardous Materials in, on, under or around such premises, or with respect to the accuracy of any boundary survey or other survey, title report or commitment, soils report or any other plans or reports, or with respect to the revenues and expenses generated by or associated with the Locations, or otherwise in any way relating to the Locations or the transactions contemplated hereby. Except as specifically provided in this Agreement, Buyer further acknowledges that all materials, including, without limitations, the Information, which have been provided to Buyer by any of the Exculpated Parties have been provided without any warranty or representation, expressed or implied, as to their content, suitability for any purpose, accuracy, truthfulness or completeness and Buyer shall not have any recourse against Seller or any of the other Exculpated Parties in the event of any errors therein or omissions therefrom. Buyer is acquiring the Assets based solely on its own independent investigation and inspection of the Assets and in no way in reliance on any information provided by Seller or any of the other Exculpated Parties other than the representations and warranties expressly contained herein.

9. Risk of Loss.

9.1 FF&E.

All risk of loss or damages to the FF&E to be sold to Buyer pursuant to this Agreement shall be borne by Seller until the close of this transaction. If any or all of the FF&E is lost or destroyed or damaged by fire or any other cause, Seller shall promptly give notice to Buyer of such damage or destruction and the amount of insurance, if any, covering such damaged or destroyed property, and Buyer shall have the option in its reasonable determination, which shall


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be exercised within ten (10) days after receipt of notice from Seller, of (a) accepting such FF&E in its damaged or destroyed condition, in which event any insurance proceeds payable to Seller shall be assigned to Buyer; or (b) excluding such damaged or destroyed FF&E from this Agreement, in which event such FF&E will be deemed to be Excluded Assets and the price for the Location to which such FF&E relates will be reduced as the Parties shall agree, provided, that if the Parties are reasonably and in good faith unable to agree on a reduction in price within twenty (20) days after Buyer' s receipt of Seller' s notice, such FF&E and the Location to which it relates will be deemed to be Excluded Assets and the price for the Locations will be reduced by the amount allocated to such Location on attached Exhibit C . In the event of damage or destruction of all or any portion of the FF&E by fire or other casualty, the scheduled close of this transaction shall be extended as necessary to afford the Parties the time frames for notices and deliberations contemplated by this Section 9.1. 9.2 Locations.

The terms of this Section 9.2 shall apply to any damage or destruction to the premises leased to Seller under the Leases (each a " Store" and, collectively, the " Stores" ), except that (and without limiting the indemnity obligations of Buyer under Section 6.3) all liability and obligation respecting any damage or destruction arising out of Buyer' s Inspections of the Stores shall be the sole responsibility of Buyer.


(a) Except as provided above, all risk of loss or damage to the Stores shall be borne by Seller prior to the close of this transaction.

(b) If, prior to the close of this transaction, any of the Stores are damaged or destroyed by fire or any other cause, Seller shall promptly give notice to Buyer of (i) such damage or destruction; (ii) Seller' s estimated cost of and time for repair and/or restoration, and (iii) the proceeds of insurance, if any, payable as a result of such casualty and (iv) whether (A) the applicable landlord has committed to repair and restore the damaged Store in accordance with the terms of the applicable Lease; and (B) the applicable landlord agrees with Seller' s estimated cost of and time for repair and/or restoration.

(c) Within ten (10) days after receipt of such notice from Seller, Buyer, in its sole discretion, shall have the option to either:


(i) Subject to the terms of the applicable Lease, accept the damaged Store in its damaged or destroyed condition and proceed to close this transaction as provided in this Agreement, in which event (unless the Location relating to such Premises has become a part of Excluded Assets pursuant to Section 9.1):


(A) Any insurance proceeds payable to Seller respecting such Store shall be assigned to Buyer at the close of this transaction, and

(B) Buyer shall pay Seller the price for such Location as specified on attached Exhibit C , which shall be adjusted for any damaged or destroyed FF&E as provided in Section 9.1 but not for the damages to the damaged Store; or


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(ii) If the extent of the damage to the Store exceeds thirty-five percent (35%) of the replacement cost of the Store, designate the Location and related Assets relating to such Store to be Excluded Assets, in which case the price for the Locations will be reduced by the amount allocated to such Location on attached Exhibit C .

(d) Nothing in this Section 9.2 or any other provision of this Agreement shall require Seller to restore or repair any such damaged or destroyed Store.


(e) If following such damage or destruction Buyer elects in accordance with Section 9.2(c)(i) to proceed with this transaction, then Seller agrees not to exercise any right it may have pursuant to the applicable Lease to cancel that Lease as a result of such damage or destruction, unless Buyer consents in writing (in ...