PURCHASE AND SALE AGREEMENT BETWEEN DTC Eastgate 1, LLC. as Seller AND Helen of Troy L.P. as Purchaser April ___, 2005
EXHIBIT
10.1
PURCHASE
AND SALE AGREEMENT
BETWEEN
DTC
Eastgate 1, LLC.
as
Seller
AND
Xxxxx
of Xxxx L.P.
as
Purchaser
April ___, 2005
Desoto
Trade Center - Eastgate
THIS
PURCHASE AND SALE AGREEMENT (the “Agreement”) is
executed as of the Effective Date by and between DTC Eastgate 1, LLC, a
Mississippi limited liability company (“Seller”), and
Xxxxx of Xxxx L.P., a Texas limited partnership (“Purchaser”).
1. SALE
OF PROPERTY; DEFINITIONS
1.1 Description
of the Property. In consideration of the
purchase price and upon the terms and conditions hereinafter set forth, Seller
shall sell to Purchaser and Purchaser shall purchase from Seller a single story
office/warehouse/distribution building containing approximately 1,197,516 square
feet and being all of the following described property (collectively, the
“Property”):
(a) Land. The real property,
consisting of approximately 59.47 acres, located
in Southaven, Mississippi, which is described on Exhibit “A” attached
hereto and to be depicted on the Survey (as hereafter defined), together with
all rights and appurtenances pertaining to such real property, including,
without limitation, all cross access/reciprocal access easements and any and all
right, title, and interest in and to adjacent roads, alleys, easements, streets
and ways to the extent that such are appurtenant to the Property (the
“Land”)
subject to the Permitted Exceptions, as defined below in Section 3.1.
(b) Improvements. All improvements,
structures and fixtures to be placed, constructed or installed on the Land by
Seller, as provided in this Agreement (the “Improvements”);
(c) Personal
Property. All (i) mechanical
systems and related equipment to be attached to the Improvements or located upon
the Land, including, but not limited to, electrical systems, plumbing systems,
heating systems and air conditioning systems, (ii) other machinery,
equipment, supplies and personal property of every kind and character to be
located in or on the Land or the Improvements or used in connection with the
operations thereon, except the Installed Equipment, (iii) interest of Seller, if
any, in the Installed Equipment, and (iv) all utilities, waste water
capacity and related utility rights relating to the Improvements and the Land
(the “Personal
Property”);
(d) Warranties,
etc. Seller's interest in all
warranties and guaranties relating to the Improvements or the Personal
Property;
(e) Plans. All site plans, surveys
and plans and specifications (including, but not limited to the Final
Construction Plans) which relate only to the Land, the Improvements or the
Personal Property (but excluding any of the foregoing that relate to any other
property owned by Seller);
(f) Intangible
Property. All intangible property
owned or held by Seller or in which Seller has an interest, if any, in
connection with the Land or the Improvements or the operations thereon, and the
right to the use thereof, including but not limited to Seller’s rights under
governmental permits, certificates, approvals, licenses, authorizations or
certifications (to the extent same are assignable) to the extent same relate to
the Land, Improvements or operations thereon, (the “Intangible
Property”);
and
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Trade Center - Eastgate
(g) General
Construction Contract. All of Seller’s rights
and interest under the General Construction Contract.
1.2 Definitions. As used in this
Agreement, the following terms shall have the meanings assigned to them
below:
“Abandoned
Installed Equipment” is
defined in Section
11.3 hereof.
“Adjusted
Costs” means
the total net price of all Change Orders on a cumulative basis.
“Applicable
Bankruptcy Law” means,
collectively, the Federal Bankruptcy Code or any other present or future federal
or state insolvency, bankruptcy or similar law.
“Approved
CC&R” means
the Declaration of Protective Covenants to be executed by Seller, as Declarant
thereunder and to be recorded before Closing in the real property records of
Desoto County, Mississippi, which Approved CC&R shall be substantially in
the form attached hereto as Exhibit
“N”.
“Approved
Survey Matters” is
defined in Section 3.2
hereof.
“Xxxx
of Sale” is
defined in Section 6.1(a)(ii)
hereof.
“CERCLA” means
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as
amended from time to time, and regulations promulgated thereunder.
“Change
Orders” is
defined in Section 5.2(a)
hereof.
“Change
Order Request” is
defined in Section 5.2(b)(i)
hereof.
“Changes” is
defined in Section 5.2(a)
hereof.
“Closing
Conditions Satisfaction Date” means
the date upon which Seller has satisfied all of the conditions to Closing set
forth in Section
6.2
hereof.
“Closing” and
“Closing
Date” are
defined in Section 6.1
hereof.
“Closing
Due Diligence Items” is
defined in Section 6.2(c)
hereof.
“Code” means,
collectively, the Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder.
“Contractor” means
the General Contractor.
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Trade Center - Eastgate
“Xxxxxxx
Money” is
defined in Section 2.3.
“Design
Architect” means
GSR Xxxxxxx Architects.
“Effective
Date” means
the date on which this Agreement has been executed by all parties hereto.
“Environmental
Report” means,
collectively, that certain Phase I Environmental Site Assessment dated February
9, 2004 prepared by Cirrus.
“EPCRA” means
the Emergency Planning and Community Right-To-Know Act (42 U.S.C. Section 11001 et seq.)
as amended from time to time, and regulations promulgated
thereunder.
“Evidence
of Completion” is
defined in Section 4.3(b)(2)
hereof.
“Final
CO” means a
permanent certificate of occupancy and any other certificates issued by the City
of Southaven, Mississippi (or any other applicable Governmental Authority) that
permit the use and occupancy of the Improvements as an
office/warehouse/distribution facility and are required for the purpose of
permitting such use and occupancy.
“Final
Construction Plans” means
the Preliminary Design Documents as revised and supplemented in sufficient
detail to facilitate the construction and government approval of the
Improvements.
“Force
Majeure” is
defined in Section
5.7.
“General
Contractor” means
Hillwood Construction Services, L.P.
“General
Construction Contract” means
the contract to be entered into between Seller and the General Contractor for
the construction of the Improvements, subject to Section
5.5 of this
Agreement, which shall be substantially in the form of the attached Exhibit
“D”.
“Governmental
Authorities” means
the United States, the state, county and city (or other political subdivision)
in which the Property is located and any other political subdivision, agency or
instrumentality exercising jurisdiction over Seller, Purchaser or the
Property.
“Governmental
Requirements” means
all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of
a Governmental Authority.
“Hazardous
Materials” means
(i) any “hazardous
waste” as
defined by RCRA; (ii) any “hazardous substance” as defined by CERCLA
(including petroleum-based products as described therein); (iii) other
petroleum and petroleum-based products; (iv) asbestos in any quantity or
form which would subject it to regulation under any applicable Hazardous
Materials Law; (v) polychlorinated biphenyls; (vi) any substance, the
presence of which on the Property is prohibited by any Hazardous Materials Law;
(vii) any “extremely
hazardous substance” or
“hazardous
chemical” as
those terms are defined in EPCRA; (viii) any “chemical substance” as that
term is defined in TSCA; (ix) any hazardous substances identified under
Mississippi law; and (x) any other substance, including toxic substances,
which, by any Hazardous Materials Laws, requires special handling in its
collection, storage, treatment, management, recycling or disposal (excluding
items that are used in the normal course of the operation of the Property in a
manner consistent with the manufacturer’s instructions and in compliance with
Governmental Requirements).
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Trade Center - Eastgate
“Hazardous
Materials Contamination” means
the contamination (whether presently existing or hereafter occurring) of the
Improvements, facilities, soil, groundwater, air or other elements on or of the
Property by Hazardous Materials, or the contamination of the buildings,
facilities, soil, groundwater, air or other elements on or of any other property
as a result of Hazardous Materials at any time originating from the Property, in
either event either above levels permitted under and/or otherwise in violation
of Hazardous Materials Laws.
“Hazardous
Materials Laws” means
all Governmental Requirements, including, without limitation, RCRA and CERCLA,
relating to the handling, storage, existence of or otherwise regulating any
hazardous wastes, hazardous substances, toxic substances, radioactive materials,
pollutants, chemicals, contaminants or industrial substances or relating to the
removal or remediation of any of the foregoing.
“Improvements” is
defined in Section 1.1(b) hereof.
“Installed
Equipment” is
defined in Section 5.4(a) hereof.
“Intangible
Property” is
defined in Section 1.1(f)
hereof.
“Land” is
defined in Section 1.1(a) hereof.
“Obligatory
Change Orders” means
any Change Order required because of a change in Governmental Regulations
enacted after the Effective Date.
“Owner’s
Policy” means
an ALTA Standard Form Owners’ Policy of Title Insurance in an amount not less
than the Purchase Price, subject to payment by Purchaser of its share of the
costs payable to the Title Company under Section 7.6 of this
Agreement for issue of the Owner’s Policy.
“Permitted
Exceptions” is
defined in Section 3.1
hereof.
“Personal
Property” is
defined in Section 1.1(c).
“Preliminary
Design Documents” means
preliminary plans listed in Schedule 5.1.
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Trade Center - Eastgate
“Private
Utility Providers” means
Entergy for the provision of electricity, Mississippi Valley Gas for the
provision of gas, Xxxx South for the provision of telephone service, and Horn
Lake Water Association for the provision of water.
“Property” is
defined in Section 1.1 hereof.
“Punchlist
Escrow” is
defined in Section 6.4(a)
hereof.
“Punchlist
Items” means
minor punchlist items which are non-structural in nature and which are capable
of being completed within forty-five (45) days and which do not materially
adversely affect the operation of Purchaser’s business at the
Property.
“Purchase
Price” is
defined in Section 2.1.
“Purchaser” is
defined in the Preamble of this Agreement.
“Purchaser
Change Order” is
defined in Section 5.2(b)(iv)
hereof.
“Purchaser’s
Construction Representative” means _____________.
“Purchaser
Notice” means a
written notice from Purchaser to Seller that requires action by Seller under the
terms of this Agreement, which notice includes, in bold face capital letters,
the following statement: “THIS
NOTICE IS SENT PURSUANT TO THE PURCHASE AND SALE AGREEMENT (THE “PSA”) BETWEEN
YOU AND THE UNDERSIGNED. FAILURE TO RESPOND TO THIS NOTICE WITHIN _____ BUSINESS
DAYS HEREOF MAY CAUSE ADVERSE CONSEQUENCES UNDER THE PSA.” If no
response is required from Seller, or if Seller is not required to respond within
a specific number of days under this Agreement, then “N/A” shall be inserted in
the blank above.
“RCRA” means
the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), as
amended from time to time, and regulations promulgated thereunder.
“Removal
Period” is
defined in Section
11.1(c)
hereof.
“Required
Completion Date” means
the date which is One Hundred Ninety-Five (195) days following the Effective
Date, provided such date will be extended day for day (i) for any delay
caused by Purchaser, and (ii) for Force Majeure.
“Required
Improvements” means
and include (i) the “shell” of the building, the interior improvements, and
all other construction and installations required under the Final Construction
Plans (including Punchlist Items) (ii) all streets, curbs, parking lots,
landscaping, detention ponds, signage, sidewalks, sewers and other utilities,
site improvement work (offsite and onsite) and infrastructure required by the
Final Construction Plans, Governmental Requirements, Private Utility Providers
or Permitted Exceptions (iii) the installation of the Personal Property,
(iv) any other items required by the Final Construction Plans and
Governmental Requirements, (v) removal of all temporary structures and utility
poles utilized for construction purposes and all portable buildings (provided
Seller shall not be required to remove trees or fences from the undeveloped
portion of the Property except as necessary for the completion of the Required
Improvements in compliance with the Final Construction Plans and Governmental
Requirements), and (vi) cleaning the Property of all construction debris and
delivery to Purchaser “broom clean.”
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Trade Center - Eastgate
“Seller” is
defined in the Preamble to this Agreement.
“Seller’s
Construction Representative” means
Xxx Xxxx and/or Xxx Xxxxx, or such other person designated by Seller from time
to time by written notice to Purchaser.
“Seller’s
Cure” is
defined in Section 11.1(a).
“Seller’s
Default Notice” is
defined in Section 11.2(a).
“Seller’s
Notice” shall mean a written notice from Seller to Purchaser that
requires action by Purchaser under the terms of this Agreement which notice
includes, in bold face capital letters, the following statement: “THIS
NOTICE IS SENT PURSUANT TO THE PURCHASE AND SALE AGREEMENT (THE “PSA”) BETWEEN
YOU AND THE UNDERSIGNED. FAILURE TO RESPOND TO THIS NOTICE WITHIN _______
BUSINESS DAYS HEREOF MAY CAUSE ADVERSE CONSEQUENCES UNDER THE PSA.”
If no
response is required from Purchaser, or if Purchaser is not required to respond
within a specific number of days under this Agreement, then “N/A” shall be
inserted in the blank above.
“Service
Contracts” is
defined in Section 1.1(d)
hereof.
“Stated
Rate” means
the lesser of the maximum amount allowed by applicable law or eight percent (8%)
per annum.
“Survey” means a
current ALTA Survey of the Land prepared and certified by a duly licensed
engineer or land surveyor reasonably acceptable to the Title Company and
Purchaser.
“Temporary
CO” means a
temporary certificate of occupancy/completion or similar certificate issued by
the City of Southaven (or other applicable Governmental Authority) that permits
the occupancy and use of the Improvements as an office/warehouse/distribution
facility subject only to completion of the Punchlist Items.
A
Temporary CO does not
include any certificates or permits issued by the City of Southaven (or other
applicable Governmental Authority) with regard to the Installed
Equipment.
“Termination
Default” is
defined in Section
11.1(c)
hereof.
“Title
Commitment” means a
Title Commitment issued by the Title Company for the Property.
“Title
Company” means
Chicago Title Insurance Company, Memphis, Tennessee office, or such other
nationally recognized title insurance company as Purchaser may
select.
“TSCA” means
the Toxic Substances Control Act (15 U.S.C. Section 2601) as
amended from time to time, and regulations promulgated thereunder.
“Unadjusted
Required Completion Date” means
the date which is One Hundred Ninety-Five (195) days following the Effective
Date, provided such date will be extended day for day for any delay caused by
Purchaser, but not for Force Majeure.
Desoto
Trade Center - Eastgate
2. PURCHASE
PRICE
AND XXXXXXX MONEY
2.1 Amount. The purchase price (the
“Purchase
Price”) for
the Property shall be (a) $32,893,058, plus or minus (b) any Adjusted
Costs, minus (c) any Liquidated Damages Payment (defined below). The Purchase
Price shall be paid on Closing by wire transfer
or the delivery of other immediately available funds to the Title Company
subject to the adjustments and prorations set forth in Section 7 hereof
and the establishment of the Punchlist Escrow, as provided in Section 6.4 hereof.
The portion of the Purchase Price which is deposited into the Punchlist Escrow
shall be released as described
in Section 6.4 hereof.
The “Liquidated Damages Payment” is an amount equal to $3,500 per day for 15
days after the Required Completion Date and thereafter $5,000 per day, not to
exceed the total sum of $900,000, which the parties acknowledge shall constitute
just compensation for any delay by Seller to meet the Required Completion Date,
as liquidated damages due to the inconvenience of ascertaining and measuring
actual damages, and the uncertainty thereof. If the Closing shall have occurred,
such Liquidated Damages Payment shall only compensate Purchaser for damages
resulting from a delay in meeting the Required Completion Date and shall not
preclude Purchaser from asserting a claim against Seller to correct or
compensate for any deficiencies in the Improvements to be constructed hereunder
or other Default by Seller as otherwise provided in this Agreement. The
Liquidated Damages Payment is only payable as a deduction from the Purchase
Price on Closing; and if the Closing shall not have occurred, the Liquidated
Damages Payment will not apply and the parties may seek such other remedies as
otherwise provided in this Agreement.
2.2 Independent
Consideration. Seller has received a
check from Purchaser in the amount of TWENTY-FIVE AND NO/100 DOLLARS ($25.00)
(the “Independent
Contract Consideration”), which
amount Purchaser and Seller hereby acknowledge and agree has been bargained for
and agreed to as consideration for Seller's execution and delivery of this
Agreement. The Independent Contract Consideration is in addition to and
independent of any other consideration or payment provided for in this Agreement
and is non-refundable in all events. At the Closing, the Independent Contract
Consideration shall not be applied to the Purchase Price.
2.3 Xxxxxxx
Money. Within two days after the
Effective Date, Purchaser shall deliver, in cash or immediately available funds,
the amount of $750,000.00 (the “Xxxxxxx
Money”) to the
Title Company. The Title Company shall deposit the Xxxxxxx Money in a daily
access interest bearing account at a financial institution whose accounts are
insured by the Federal Deposit Insurance Corporation, with interest thereon to
become part of the Xxxxxxx Money. The timely delivery of the Xxxxxxx Money is a
condition precedent to Seller’s obligations hereunder, and the failure of
Purchaser to timely deliver the Xxxxxxx Money as provided for herein shall at
Seller’s option cause this Agreement to be terminated, and thereafter neither
party shall have any further right or obligation under this Agreement, unless
expressly provided otherwise in this Agreement. Except as otherwise expressly
provided herein, the Xxxxxxx Money is nonrefundable to Purchaser. The Xxxxxxx
Money, unless earlier returned to Purchaser or unless delivered to Seller as
herein provided, at Purchaser’s option, either shall be applied to the Purchase
Price or returned to Purchaser at the Closing.
Desoto
Trade Center - Eastgate
3. TITLE
COMMITMENT; SURVEY
3.1 Title. Purchaser has approved
the Title
Commitment that is attached to this Agreement as Exhibit
“K”. The
following matters shall be “Permitted
Exceptions”, which
may be taken as exceptions to the coverage under the Owners Policy:
(a) all
exceptions appearing in the Title Commitment except for those which will be
released in connection with the approved plat;
(b) those
exceptions which will be created by or shown on the approved plat;
(c) the
Approved CC&R, and
(d) any other
matter that (i) is reasonably required in order for Seller to perform its
obligations hereunder, (ii) does not materially interfere with the Purchaser’s
intended use of the Property as a office/warehouse/distribution building, or
(iii) does not create or constitute a material defect in marketable fee simple
title to the Property.
Seller
shall be obligated to eliminate at or prior to the Closing all mortgage liens,
mechanic’s liens, judgment liens, absolute and/or collateral assignments and
other similar encumbrances that are listed as exceptions to the title to the
Property (excluding the lien of taxes and other items that are not yet due and
payable);
provided mechanics liens and judgment liens may exist provided they are resolved
in accordance with Section 6.4(b) hereof.
Seller shall, at or prior to Closing, satisfy all of the Requirements contained
in Schedule B, Section I of the Title Commitment.
Exception
Number 1 of Schedule B - Section II of the Title Commitment relating to
discrepancies, conflicts or shortages in area or boundary lines or any
encroachment or overlapping of improvements which a survey might show shall be
deleted except for “shortages in area” with the premium for such deletion to be
paid for by Purchaser, and Exception Number 7 of Schedule B - Section II of the
Title Commitment relating to any lease, grant, exception or reservation of
minerals or mineral rights on, and under the Property shall be deleted with the
premium for such deletion to be paid for by Purchaser. Purchaser may obtain such
additional endorsements to the Title Policy as Purchaser may desire, at
Purchaser’s expense.
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Trade Center - Eastgate
3.2 Survey. Seller has delivered the
Survey to Purchaser. Purchaser shall have a period of 2 days from the Effective
Date to review the state of Seller’s title to the Property (the “Title
Review Period”). If
the Survey or Title Commitment reflects or discloses any defect, exception or
other matter that is unacceptable to Purchaser in its sole discretion
(“Title
Defects”), then,
prior to the expiration of the Title Review Period, Purchaser may provide Seller
with written notice of its objections. Seller may, in Seller’s sole and absolute
discretion, either (i) agree to remove or cure the Title Defects or (ii)
terminate the Contract by giving written termination notice to Purchaser.
Notwithstanding anything to the contrary in this Agreement, to the extent that
Purchaser fails to identify any Title Defects in a written notice to Seller
prior to the expiration of the Title Review Period, all such Title Defects shall
be deemed to be waived and accepted by Purchaser and shall be Permitted
Exceptions (hereinafter defined). Those matters shown on the Survey, shown on
any other Surveys approved by Purchaser during the construction of the
Improvements and matters which, pursuant to Sections
3.1(d) and 6.2(b), do not
require Purchaser’s approval, are herein called "Approved
Survey Matters". Upon the
expiration of the Title Review Period, Exhibit
“A” to this
Agreement shall be deemed automatically amended to include the legal description
contained in the Survey. Notwithstanding anything to the contrary herein, if
Purchaser fails to acquire the Property for any reason (other than a termination
by Seller pursuant to this Section
3.2 or a
termination due to any Title Defect), Purchaser shall pay for 50% of the cost of
the Survey (which amount shall be deducted from the Xxxxxxx Money before it is
refunded to Purchaser if Purchaser is entitled to receive the Xxxxxxx Money
pursuant to the terms hereof, or if the Xxxxxxx Money has previously been
refunded to Purchaser, Purchaser shall pay 50% of the cost of the Survey upon
being presented with an invoice therefor), even though such payment obligation
is not repeated in the provisions of this Agreement providing for the return of
the Xxxxxxx Money. Notwithstanding anything to the contrary contained herein,
Purchaser’s obligation under the immediately preceding sentence shall survive
the termination of this Agreement. Seller shall pay 100% of the Survey and Title
Commitment if this Agreement is terminated because of any Title Defect or by
Seller under this Section.
3.3 Objections
to Title. If Purchaser shall object
to any Title Defect contained in the Title Commitment and/or Survey on or before
the expiration of the Title Review Period and Seller shall not have cured or
agreed to cure such Title Defect within five (5) days following Seller’s receipt
of Purchaser’s notice of such objection, then Purchaser may elect to either (a)
terminate this Agreement, in which case the Xxxxxxx Money shall be repaid to
Purchaser, or (b) waive such Title Defect and proceed to Closing in accordance
with all the terms of this Agreement. Purchaser’s failure to give Seller written
notice of waiver of any Title Defect within seven (7) days following Purchaser’s
notice of such objection shall be deemed an election by Purchaser to terminate
this Agreement.
4. REPRESENTATIONS,
WARRANTIES AND COVENANTS
4.1 Seller's
Representations and Warranties. Seller represents and
warrants to Purchaser that all of the following representations and warranties
are true and effective in all respects as of the Effective Date and shall be
deemed remade on the Closing Date:
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Trade Center - Eastgate
(a) Existence;
Authority. Seller is a duly
organized and legally existing limited partnership under the laws of the State
of its organization and is duly qualified to do business in the State of
Mississippi. The execution and delivery of, and Seller's performance under, this
Agreement are within Seller's powers and have been duly authorized by all
requisite action. The person executing this Agreement on behalf of Seller has
the authority to do so. This Agreement constitutes the legal, valid and binding
obligation of Seller enforceable in accordance with its terms, subject to laws
applicable generally to creditor's rights. Performance of this Agreement will
not result in any breach of, or constitute any default under, or result in the
imposition of any lien or encumbrance upon the Property under, any agreement or
other instrument to which Seller is a party or by which Seller or the Property
might be bound. Seller has the financial capacity to fulfill its obligations
under this Agreement.
(b) Litigation;
No Consent. There is no pending or,
to the knowledge of Seller, threatened litigation or administrative proceedings
which could adversely affect title to the Property or any part thereof or the
ability of Seller to perform any of its obligations hereunder or the use of the
Property by Purchaser as an office/warehouse/distribution building or otherwise
affect the Property in any way. No consent or approval of any person or entity
or of any Governmental Authority is required with respect to the execution and
delivery of this Agreement by Seller or the consummation and performance by
Seller of the transactions contemplated hereby (other than in connection with
the issue of the usual and customary consents and permits required for the
development of the Property).
(c) Title
to Property. Seller owns, or will
acquire as provided in Section
16.23, and
will own at Closing, good and indefeasible fee simple title to the Property,
subject only to the Permitted Exceptions.
(d) Notice
of Liens. Seller has not received
written notice of, nor to Seller's knowledge, are there any facts or
circumstances which would allow any Governmental Authority the right to file or
impose, any liens or special assessments against any of the Property, except for
inchoate liens securing the payment of ad valorem taxes which are not yet due
and payable.
(e) Agreements
to Acquire or Possess the Property. No person, firm,
corporation or other entity has any right or option to acquire the Property or
any part thereof, from Seller. Except as reflected within the Permitted
Exceptions, Seller has not entered into any agreement with any person, firm,
corporation or entity granting the right to possess the Property.
(f) Defects;
Violations; Proceedings. Seller has not received
any written notice from any insurance company, Governmental Authority or any
other party of, nor to the knowledge of Seller are there (i) any defects in
materials or workmanship of any Improvements on the Property, (ii) any
material violations of any restrictive covenant or deed restriction affecting
the Property or any building codes and/or zoning ordinances or other
Governmental Requirements, or (iii) any pending or threatened condemnation
proceedings. Nothing in this paragraph shall be deemed to limit the warranty as
to the Improvements in Section
5.6 of this
Agreement.
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Trade Center - Eastgate
(g) Governmental
Requirements. At Closing, the Property
will be in compliance with (i) all Permitted Exceptions and (ii) all
Governmental Requirements pertaining to the design, zoning, land use,
construction and development of the Required Improvements. To the best of
Seller’s current actual knowledge, no changes in zoning are pending as to any of
the Property.
(h) Soil
and Flood Issues. The Property is not
included in any area having special flood hazards, except as shown on the
Survey. The Property complies, or will comply at Closing, with all Governmental
Requirements regarding wetlands, drainage, or water or rainfall disposal of any
kind. To Seller’s current actual knowledge, no part of the Property contains any
sanitary or other fill from sources outside the Property and, to the best of
Seller’s current actual knowledge, no part of the Property contains any other
fill except normal grading needed for construction of the
Improvements.
(i) Utilities. At Closing, all
infrastructure for water, sanitary sewer, electric, natural gas, telephone,
drainage facilities and all other utility infrastructure required for the use of
the Property will be installed to the Property, will be connected with valid
permits, will comply with all Governmental Requirements and, to the extent
applicable, with the requirements of the Private Utility Providers, and subject
to Force Majeure, will be operational.
(j) Mechanic's
Liens. At Closing, there will
not be any unpaid charges, debts, liabilities, claims or obligations of Seller
arising from the construction, occupancy, ownership, use or operation of the
Property which could give rise to any mechanics' or materialmen's or other
statutory liens against any of the Property that will not be paid by Seller at
the Closing except for any such liens that arise out of the acts or omissions of
Purchaser or are allowed under Section 6.4(b)
hereof.
(k) Foreign
Person. Seller is not a “foreign
person” within the meaning of Sections 1445
and 7701 of the
Code.
(l) Governmental
Action. Seller has received no
written notice nor has any knowledge of any change contemplated in any
Governmental Requirements applicable to the Property or any judicial or
administrative action applicable to the Property or any action by adjacent land
owners affecting the Property, which has not been disclosed in writing to
Purchaser by Seller.
(m) Environmental. Except as otherwise
referenced in the Environmental Report and to Seller’s current actual knowledge,
no part of the Property has been used as a land fill or for the use, generation,
processing, storage or disposal of any hazardous or toxic materials, and, to
Seller’s current actual knowledge, no part of the Property contains any
materials, whether brought to the Property, deposited thereon, used on the
Property, generated on the Property as a product or by-product of activities on
the Property, or otherwise present: (i) that are or contain polychlorinated
biphenyls (PCB’s) or asbestos; (ii) that are hazardous substances or other
regulated products as defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended (or regulations promulgated, adopted
or incorporated thereunder); or (iii) that are otherwise classified as hazardous
or regulated substances or waste under any federal, state or local law or
regulation or Governmental Requirements. As of the Closing Date, there will be
no underground or above ground storage tanks on the Property nor, to the best of
Seller’s current actual knowledge, have there ever been any such tanks on the
Property.
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Trade Center - Eastgate
(n) Performance. Seller has no current
actual knowledge of any fact or circumstance that would prevent it from
performing its duties under this Agreement.
(o) Litigation. There are no claims,
actions, suits, proceedings, audits, investigations, criminal proceedings or
grievances (including worker’s compensation claims), at law or equity, before
any court, tribunal, administrative agency, arbitrator or other governmental or
regulatory authority or other forum pending against Seller or the Property or,
to Seller’s current actual knowledge, threatened against Seller or the Property,
which relate to the Property.
(p) Condemnation. Seller has not received
written notice of any pending or threatened condemnation or similar proceeding
affecting the Property, or any part thereof. No written notice has been received
by Seller from any insurance company, court, administrative agency, arbitrator
or other governmental or regulatory authority or any other party of, nor to
Seller’s current actual knowledge, are there any facts or circumstances which
would give rise to (i) any material condition, defect, or inadequacy affecting
the Property that, if not corrected, would result in termination of insurance
coverage or materially increase its cost, (ii) any violation of any restrictive
covenant or deed restriction affecting the Property, (iii) any pending or
threatened condemnation proceedings relating to the Property or any part thereof
or (iv) any proceedings that would cause the change, redemption or other
modification of the zoning classification or other legal requirements applicable
to the Property.
(q) Access/Dedications. Except as expressly set
forth on the Survey, the Property has, or will have as of the Closing Date, full
and free access to and from public highways, streets or roads and Seller has no
current actual knowledge of any pending or threatened governmental proceeding or
any other fact or condition which would materially limit or result in the
termination, with respect to the Property, of existing access to and from public
highways, streets or roads. All roads necessary for the use of the Property for
office/warehouse/distribution purposes have been completed, or will be completed
as of the Closing Date, are physically open (or will be physically open as of
the Closing Date) and dedicated (or will be dedicated as of the Closing Date) to
public use and have been accepted pursuant to applicable laws. Except as
expressly set forth on the Survey or recorded plats, all curb cut street opening
permits or licenses required for vehicular access to and from the Property from
any adjoining public street have been (or will have been as of the Closing Date)
obtained and paid for and are in full force and effect. Except as otherwise set
forth in the Permitted Exceptions, no commitments or other undertakings, whether
written or oral, express or implied, have been made to any governmental
authority, utility company, school board, church or other religious body, or any
property owners' association or any other organization, group or individual,
relating to the Property which would impose an obligation upon Purchaser to make
any contribution or dedication of money or land or to construct, install or
maintain any improvements of a public or private nature on or off any of the
Properties.
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(r) Rollback
Taxes. None of the Property is
subject to any rollback taxes. To the extent any rollback taxes are imposed as a
result of the transaction contemplated under this Agreement, Seller shall be
solely responsible for such taxes.
(s) CC&R. All of the land depicted
on the attached Exhibit
“L” that has
been sold by Seller or any Affiliate (defined in Section
16.25(c) below)
of Seller is and/or will be subject to restrictive covenants that are
substantially the same as the Approved CC&R. Seller covenants and agrees
that for such period of time that it or any Affiliate shall own any of the land
depicted on the attached Exhibit
“L”, Seller
and/or Seller’s Affiliate shall comply with the Approved CC&R.
Notwithstanding anything to the contrary herein, if restrictive covenants that
are substantially the same as the Approved CC&R are recorded on all or any
part of the land identified on Exhibit
“L”, then
Seller’s and/or Seller’s Affiliate’s obligations under this Section
4.1(s) shall
terminate with respect to the land on which such restrictive covenants are
recorded.
(t) Seller
has no knowledge of the existence of any fact that, if stated, would render any
of Seller’s representations or warranties untrue.
4.2 Knowledge
Defined. All
references in this Agreement to the "knowledge" and terms
of similar import shall mean a person's existing, current, actual state of mind
with respect to the given fact, situation, or occurrence, including any
information which such person may have obtained through any investigation such
person has conducted in the ordinary course of its business, but does not
require any special investigation for the purposes of making or verifying any
warranty or representation in this Agreement made by or on behalf of such
person. In the context of Seller's representations and warranties made herein,
the term “knowledge” is expressly limited to the actual current (and not
constructive) knowledge of the employees of Seller and Seller’s Affiliates
(collectively, the “Knowledge
Employees”), and
any reference to Seller’s receipt of “notice” shall mean the actual receipt of
notice by the Knowledge Employees; provided, however, that the Knowledge
Employees shall not have any personal liability in connection with any
representations or warranties of Seller.
Anything in this paragraph to the contrary notwithstanding, “knowledge” shall
include any information obtained by any person employed by Seller or Seller’s
Affiliates that (i) is intentionally and wrongfully withheld from Purchaser and
(ii) would render any of Seller’s representations or warranties false in any
material respect. As used in this Section
4.2,
“Seller’s Affiliates” means all entities which are controlled by Seller, control
Seller, or are under common control with Seller.
4.3 Survival. The representations and
warranties in the above Section
4.1 shall
survive the Closing for a period of 18 months following the date of the
Closing.
4.4 Seller's
Covenants. Seller hereby covenants
and agrees with Purchaser that, after the Effective Date through the Closing
Date:
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(a) Service
Contracts. Seller shall not enter
into any Service Contracts (except those which are terminable with or without
cause on thirty (30) days notice without penalty) which would continue for a
period subsequent to the Closing Date.
(b) Completion
of Improvements.
(1) The
Required Improvements will be substantially completed and installed using new
and first class materials in accordance with the Preliminary Design Documents on
or before the Required Completion Date:
(A) in a good
and workmanlike manner, in substantial accordance with the Final Construction
Plans (excluding the Punchlist Items) and General Construction Contract,
(B) in
accordance with all Governmental Requirements (including, but not limited to,
building, handicapped, employee safety, and other laws, rules, regulations and
codes),
(C) in
accordance with the requirements of the Private Utility Providers, and
(D) in
accordance with the requirements of any Permitted Exceptions, including the
Approved CCR.
(2) Seller
shall notify Purchaser in writing when the Required Improvements have been so
completed and shall deliver to Purchaser (the “Evidence
of Completion”)
|
(A) |
a
certificate of the design architect certifying the substantial completion
of the Required Improvements in compliance with the Final Construction
Plans and with applicable laws in the form of certification attached
hereto as Exhibit “G”,
and |
|
(B) |
a
Temporary CO (to be followed by the Final CO as provided in this
Agreement). |
(c) Zoning
of the Property. Without the prior written
consent of Purchaser, Seller will not initiate or permit any zoning
reclassification of the Property or seek any variance under existing zoning
ordinances applicable to the Property to use or permit the use of the Property
in such a manner which would result in such use becoming a nonconforming use
under applicable zoning ordinances or other Governmental Requirements.
(d) Condemnation;
Injury; Damages. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Property, or any portion thereof, or any other proceedings arising out of injury
or damage to the Property, or any portion thereof, Seller will notify Purchaser
of the pendency of such proceedings, as provided in Section 12.2
below.
(e) Litigation. Seller will advise
Purchaser promptly of any material litigation, arbitration or administrative
proceeding or change in Governmental Requirements concerning or affecting the
Property or the ownership and/or operation thereof of which Seller has knowledge
or written notice.
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(f) Liens. Except for liens which
(i) Seller shall be obligated to release at or prior to Closing, (ii) are
created by, through or under Purchaser and (iii) have been resolved in
accordance with Section
6.4 hereof,
Seller shall not grant, consent or permit the filing of any lien or encumbrance
against the Property or any portion thereof subsequent to the Effective Date.
(g) As of the
Closing Date, (i) the Temporary CO will be valid and in full force and effect
and no violations shall exist with respect to such Temporary CO and (ii) the
Property will be in compliance with all applicable federal, state and municipal
laws, rules, regulations and ordinances, applicable restrictions, zoning
ordinances, building codes and regulations, building lines and easements,
including, without limitation, federal and state environmental protection law
and the Americans with Disabilities Act of 1990, all state and local laws or
ordinances related to handicapped access, and any statute, rule, regulation,
ordinance, or order of governmental bodies or regulatory agencies, or any order
or decree of any court adopted or enacted with respect thereto.
(h) On or
before the Closing Date, Seller shall provide to purchaser an update to the
Environmental Report, which updated Environmental Report shall not create any
exception to the representations and warranties made by Seller in Section
4.1(m).
(i) Insurance. Seller shall maintain
(and/or shall require the General Contractor to maintain) the following
insurance:
|
(i) “all risk”
property
insurance, with limits not
less than 100% of replacement cost,
on all of the Improvements located at the Property;
|
(ii) commercial general
liability insurance to protect against any bodily injury, death, or property
damage resulting from any use of or accident occurring in or on the Property,
with combined single limit coverage of $3,000,000 and $5,000,000 aggregate.
Purchaser shall be named as an additional insured under this policy.
(iii) all insurance required by
the Construction Contract for subcontractors and/or the General Contractor,
including builders risk and workers compensation coverage. Purchaser shall be
named as an additional insured on all policies except the workers compensation
policy.
(j) Evidence
of Insurance. Seller shall deliver to
Purchaser copies of certificates evidencing such insurance and shall deliver
renewal certificates within thirty (30) days of the renewal of the policies
required hereunder. All certificates shall contain a thirty (30) day notice of
cancellation clause.
4.5 Purchaser's
Representations and Warranties. Purchaser represents,
warrants and covenants to Seller as follows:
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Trade Center - Eastgate
(a) Authority. Purchaser is duly a
organized and legally existing limited partnership under the laws of the state
of Texas and is duly qualified to do business in the State of Mississippi. The
execution and delivery of, and the performance by Purchaser, of this Agreement
is within Purchaser’s powers and has been duly authorized by all requisite
action. The person or persons executing this Agreement on behalf of Purchaser
has the authority to do so. This Agreement constitutes the legal, valid and
binding obligation of Purchaser, enforceable in accordance with its terms,
subject to laws applicable generally to creditor's rights. Performance of this
Agreement will not result in any breach of, or constitute any default under, any
agreement or other instrument to which Purchaser is a party. Purchaser has the
financial capacity to fulfill it obligations under this Agreement.
(b) No
Violation; Consent. The execution and
delivery by Purchaser of, consummation of transactions provided for in, and
compliance by Purchaser with all of the provisions of this Agreement (i) will
not violate the organizational documents of Purchaser and (ii) do not require
any approval or consent of any parties for Purchaser.
(c) Environmental. Purchaser
has received from Seller the Environmental Report for the Property.
4.6 Purchaser
Covenants. Purchaser hereby
covenants and agrees with Seller that, after the Effective Date through the
Closing Date:
(a) Diligent
Efforts. Purchaser will use
diligent efforts to satisfy those Purchaser conditions to Closing set forth in
Section 6.3.
(b) Insurance. Purchaser shall maintain
the following insurance:
|
(i) “all risk”
property
insurance, with limits not
less than 100% of replacement cost,
on its furniture, fixtures, equipment, and other of Purchaser's tangible
property located at the Property; |
| (ii) commercial general liability insurance to protect against any bodily injury, death, or property damage resulting from any use of or accident occurring in or on the Property, with combined single limit coverage of $3,000,000 and $5,000,000 aggregate. Seller shall be named as an additional insured under this policy. |
| (iii) for all contractors employed by Purchaser in connection with the installation of Installed Equipment, insurance in at least the amounts required by the Construction Contract for subcontractors of the General Contractor. Seller and General Contractor shall be named as an additional insured under this policy. |
(c) Evidence
of Insurance. Purchaser shall deliver
to Seller copies of certificates evidencing such insurance prior to Purchaser's
occupancy of the Property or Purchaser’s contractor’s entry into the Property
and shall deliver renewal certificates within thirty (30) days of the renewal of
the policies required hereunder. All certificates shall contain a thirty (30)
day notice of cancellation clause.
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Trade Center - Eastgate
(d) Improvements. Purchaser acknowledges
and agrees that, notwithstanding any term to the contrary in this Agreement,
Purchaser shall have no right, title or interest (including, without limitation,
any equitable right, title or interest) in or to the Improvements unless and
until the Closing occurs as provided under this Agreement. Notwithstanding the
preceding sentence, Purchaser shall have a right to remove Installed Equipment
at any time during the pendency of this Agreement unless Purchaser is in default
hereunder, in which event the Installed Equipment shall be treated in the manner
described in Section 11.3.
4.7 Mutual
Waiver of Subrogation. Seller and Purchaser and
all parties claiming under, by, or through them hereby waive any and all right
of recovery, claim, action or cause of action against the other and against the
General Contractor, all subcontractors and all sub-subcontractors, and each of
their respective principals, beneficiaries, partners, officers, directors,
agents, and employees, for any loss or damage that may occur to Seller or
Purchaser or any party claiming by, through or under them with respect to their
respective personal property, the Property or the Improvements or any additions
or improvements thereto, or any contents therein, by reason of fire, the
elements or any other cause or casualty, regardless of cause or origin,
including the negligence of any of the foregoing parties, or their respective
principals, beneficiaries, partners, officers, directors, agents and employees
if such loss or damage is covered by property insurance (or would have been
covered had the insurance required by this Agreement been carried) (regardless
of whether the limits of the applicable policies are sufficient to cover the
losses in question). Since this mutual waiver will preclude the assignment of
any such claim by subrogation (or otherwise) to an insurance company (or any
other person), Seller and Purchaser each agree to give each insurance company
which has issued, or in the future may issue, policies of insurance, with
respect to the items covered by this waiver, written notice of the terms of this
mutual waiver and to have such insurance policies properly endorsed, if
necessary, to prevent the invalidation of any of the coverage provided by such
insurance policies by reason of such mutual waiver. For the purpose of the
foregoing waiver, the amount of any deductible applicable to any loss or damages
shall be deemed covered by, and recoverable by the insured under the insurance
policy to which such deductible relates. Seller
and Purchaser shall indemnify the other against any loss or expense, including
but not limited to reasonable attorney’s fees, resulting from the failure to
obtain such insurance subrogation waiver.
Provided, however, that nothing in this Section shall have the effect of
releasing Seller, Purchaser, or the General Contractor from any representation
or warranty made in this Agreement or in the Construction Contract.
5. CONSTRUCTION
AND CHANGE ORDERS
5.1 Construction
Documents. Seller and Purchaser
hereby acknowledge their respective approval of the Preliminary Design
Documents. Seller agrees to cause the preparation of Final Construction Plans
that are consistent with the Preliminary Design Documents within 60 days after
the Effective Date. To the extent that the Final Construction Plans materially
and substantially deviate from the Preliminary Design Documents, Seller shall be
required to obtain Purchaser’s prior written consent before allowing such
material and substantial deviations to be constructed.
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5.2 Approval
of Construction Contract. Seller
shall deliver to Purchaser a true and complete copy of the General
Construction Contract prior to the final execution thereof by Seller and General
Contractor (with, if Seller desires, the economic terms therein redacted), which
General Construction Contract shall be subject to Purchaser’s approval, which
shall not be unreasonably withheld or delayed. If Purchaser shall not have given
notice of disapproval of the General Construction Contract within five (5)
business days following Purchaser’s receipt of such copy, then Purchaser shall
be deemed to have approved said General Construction Contract.
5.3 Change
Orders.
(a) Change
Orders Requiring Purchaser Approval. From and after the
Effective Date, (i) all changes in the Preliminary Design Documents, in the
Final Construction Plans, or resulting in a delay of the Required Completion
Date, (ii) change orders under the General Construction Contract, and/or
(iii) selection and changes of materials (including matters such as
building materials, roof color, building colors, and project colors)
(collectively, the “Changes”) shall
require the prior written approval of Purchaser (such approval not to be
unreasonably withheld or delayed) (the Changes, when approved, being
“Change
Orders”).
(b) Change
Order Review Procedure.
(i) From time
to time, (A) Purchaser may propose a Change which issues additional
instructions, requires additional work or directs the omission of work
previously ordered or (B) either party may identify and request a change
required by a Governmental Authority (any request for a change pursuant to this
Section
5.2 is
herein called a “Change
Order Request”). The
Change Order Request shall be issued by the design architect on behalf of
Seller, or by either the Purchaser’s Construction Representative on behalf of
Purchaser as the case may be, and shall set forth in reasonable detail, the
nature of the requested change provided no work shall proceed under a Change
Order Request and all ongoing work shall continue.
(ii) On
receipt of a Change Order Request from Purchaser, Seller shall
promptly obtain
from General Contractor and furnish to Purchaser proposed revisions to the Final
Construction Plans, if such is required by the requested Change, statements
setting forth in reasonable detail the General Contractor’s bid for the Adjusted
Costs attributable to the Changes set forth in the Change Order Request and a
proposed adjustment, if necessary, to the Required Completion Date which is a
result of the Change Order Request. The General Contractor’s bid for the Change
Order Request shall confirm the cost that was included in the original
Construction Contract price for the category or categories of work affected by
the Change Order Request.
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(iii) Purchaser
shall accept or reject the General Contractor’s response to the Change Order
Request within three (3) business days of its receipt thereof. After three (3)
business days, the Change Order Request shall be deemed rejected unless accepted
by Purchaser. Notwithstanding the foregoing, Change Order Requests by Seller
that are required by a Governmental Authority or Force Majeure event shall be at
Purchaser’s sole cost and expense and shall be deemed accepted after three (3)
business days and may not be rejected by Purchaser; provided, however, that any
such Change Order Request resulting from the failure of Seller or General
Contractor to comply with existing Governmental Requirements shall be at
Seller’s sole cost and expense. For all Change Orders Requests, Purchaser may
extend the review period described above in order to conduct value engineering
for the proposed Change, provided Seller may, in its reasonable discretion,
cease all construction that may be affected by the Change Order Request. If the
cessation of construction that may be affected by the Change Order Request will
prevent Seller from completing the Required Improvements by the Required
Completion Date, then the Required Completion Date shall be extended by one day
for each day of delay created by Purchaser’s failure to approve or reject the
Change Order Request after said three (3) business day period.
(iv) If
Purchaser approves the estimate in writing, the Change Order Request and such
estimate shall constitute the Change Order (a “Purchaser
Change Order”) and
the Final Construction Plans, and, if required, the Required Completion Date
shall be adjusted accordingly.
(v) If Seller
desires to make a Change it shall submit a Change Order Request to Purchaser,
together with such supporting documentation as the Purchaser’s Construction
Representative may reasonably require and Seller’s recommended action with
respect to same. Purchaser shall endeavor in good faith to respond within three
(3) business days after the submission of the Change Order Request, but
Purchaser's failure to respond within such three (3) business day period shall
not be construed as consent to any Change requiring Purchaser's approval
pursuant to subsection (a) above.
(c) Information
to be provided to Purchaser. During the course of
construction of the Improvements, Seller shall provide, and shall cause the
General Contractor and Design Architect to provide, the Purchaser’s Construction
Representative access to the Property and such information concerning the
progress of construction that may be reasonably requested by them, including
copies of all Change Orders, and monthly status reports from Seller regarding
the status of the construction of the improvements. Purchaser shall be entitled
to receive copies of all pricing information Seller receives from its General
Contractor for Change Orders and for all pricing of improvements which were
described in the Preliminary Design Documents.
5.4 Notices
for Submissions and Construction Approvals. Notwithstanding anything
to the contrary herein, all submissions and responses by and between Seller and
Purchaser under Section 5.2 and all
notices thereunder relating to requests for approval (including disapprovals)
shall, if sent on behalf of Seller, be valid if delivered to Purchaser’s
Construction Representative only, or, if sent on behalf of Purchaser, be valid
if delivered to Seller’s Construction Representative only, in either case by
hand delivery or via a national overnight air courier service to the addresses
given in Section 15 hereafter for the aforementioned individuals. The notices
shall,
when sent by Seller, contain a Seller Notice. Such notices shall be effective
when received. Any such notices that also relate to the possible failure of a
party to comply with the terms of this Agreement shall also be given in
accordance with Section 15 of this
Agreement.
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5.5 Purchaser’s
Installation of Equipment.
(a) Installed
Equipment. As early as is reasonably
practical in Seller's reasonable discretion (but in no event later than 30 days
prior to the Closing Date) and upon the terms and conditions set forth in this
Section 5.5, Seller shall allow Purchaser, during normal business hours, to
install racks, conveyor equipment, security systems and other personal property
that are necessary for Purchaser's intended use of the Improvements after the
Closing Date (the "Installed
Equipment")..
Prior to the commencement of the installation of the Installed Equipment,
Purchaser (a) will obtain all permits or approvals required by any Governmental
Authority for the installation of such Installed Equipment and (b) insurance
certificates and appropriate waivers of subrogation shall be provided to Seller
as provided in Section 4.5(b) hereof.
Purchaser acknowledges that the exact installation schedule for the Installed
Equipment will have to be determined by Seller and Purchaser as construction
progresses, and Purchaser and Seller agree to work together to determine an
appropriate schedule for the installation. Without limitation, Purchaser shall
provide to Seller a detailed description of the desired installation activities
and timing, which schedule and activities shall be subject to the reasonable
approval of Seller and General Contractor so as to give Seller and General
Contractor the ability to impose reasonable requirements to protect the timing
of the completion of the Improvements and to appropriately provide for the
safety and cooperation of the General Contractor’s and Purchaser’s contractors
and mechanics. Purchaser shall install the Installed Equipment in a manner that
will not impede or delay the anticipated completion of the Required Improvements
by the Required Completion Date and the security systems must not interfere with
construction activity. Any delay attributable to the installation of the
Installed Equipment by Purchaser shall result in the addition of one day to the
Required Completion Date for each day of delay caused solely by Purchaser and
not by Seller or General Contractor. If applicable, Purchaser shall be
responsible for the removal of the Installed Equipment in the event of any
casualty or condemnation affecting the Property unless Purchaser elects not to
remove the same in which case Seller shall take ownership thereof and the
provisions in Section
11.3 of this
Agreement relating to the transfer to Seller of Abandoned Installed Equipment
shall apply.
(b) Access. For purposes of the
installation and, if applicable, removal of the Installed Equipment contemplated
by this Section 5.4, Seller
shall give those persons performing such work reasonable access to the Property,
which access shall not unreasonably interfere with the contractors. The
obligations of Purchaser contained in this Section 5.4 shall
survive the Closing or the earlier termination of this Agreement. The right of
access to the Property granted in this Section 5.4 shall in
no way be construed as giving Purchaser possession of or any legal or equitable
title to the Property prior to the Closing. The installation of the Installed
Equipment shall in no way be construed as giving Seller possession of or any
legal or equitable title to the Installed Equipment. Purchaser will not permit
any materialman's or mechanic's lien to be placed upon the Property as a result
of any work performed, materials furnished or obligation incurred by or at the
request of Purchaser. In the event any such lien is filed, Purchaser will
promptly pay or bond against same. If Purchaser fails to pay or provide a bond
within twenty (20) days after receipt of written notice thereof from Seller to
Purchaser, the Seller shall have the right, at Seller’s option, of satisfying
the same or any portion thereof, without inquiry as to the validity thereof, and
any amounts so paid, including expenses and interest at the Stated Rate from the
date Seller satisfied such lien, shall be immediately paid to Seller by
Purchaser.
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(c) PURCHASER’S
INDEMNITY. EXCEPT TO THE EXTENT ANY DAMAGES, ACTIONS, LIABILITIES AND EXPENSES
ARE COVERED BY PROPERTY INSURANCE REQUIRED TO BE MAINTAINED BY EITHER PARTY
HEREUNDER, PURCHASER WILL INDEMNIFY, DEFEND AND HOLD SELLER AND ITS AFFILIATES
AND SUBSIDIARIES, AND ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, OFFICERS AND
DIRECTORS HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, DAMAGES, LIABILITY AND
EXPENSE IN CONNECTION WITH BODILY INJURY, DEATH, AND DAMAGES TO PROPERTY ARISING
FROM OR OUT OF THE USE AND OCCUPANCY BY THE PURCHASER OF THE PROPERTY OR ANY
PART THEREOF PRIOR TO CLOSING, INCLUDING WITHOUT LIMITATION, ANY AND ALL LIENS,
LOSS, COSTS AND EXPENSE, INCLUDING REASONABLE ATTORNEYS' FEES, RELATING TO THE
INSTALLATION AND, IF APPLICABLE, REMOVAL OF THE INSTALLED EQUIPMENT AND FOR
PHYSICAL DAMAGE TO PROPERTY OR BODILY INJURY TO PERSONS CAUSED BY PURCHASER'S
INSPECTION, TESTING, AND/OR INVESTIGATION OF THE PROPERTY PRIOR TO THE CLOSING
DATE.
SELLER’S
INDEMNITY. EXCEPT TO THE EXTENT ANY DAMAGES, ACTIONS, LIABILITIES AND EXPENSES
ARE COVERED BY PROPERTY INSURANCE REQUIRED TO BE MAINTAINED BY EITHER PARTY
HEREUNDER, SELLER WILL INDEMNIFY, DEFEND AND HOLD PURCHASER AND ITS AFFILIATES
AND SUBSIDIARIES, AND ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, OFFICERS AND
DIRECTORS HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, DAMAGES, LIABILITY AND
EXPENSE IN CONNECTION WITH BODILY INJURY, DEATH, AND DAMAGES TO PROPERTY ARISING
FROM OR OUT OF THE USE AND OCCUPANCY BY THE SELLER OF THE PROPERTY OR ANY PART
THEREOF PRIOR TO CLOSING, INCLUDING WITHOUT LIMITATION, ANY AND ALL LIENS, LOSS,
COSTS AND EXPENSE, INCLUDING REASONABLE ATTORNEYS' FEES, RELATING TO THE
INSTALLATION AND CONSTRUCTION OF THE IMPROVEMENTS AND FOR PHYSICAL DAMAGE TO
PROPERTY OR BODILY INJURY TO PERSONS CAUSED BY SELLER'S CONSTRUCTION,
INSPECTION, TESTING, AND/OR INVESTIGATION OF THE PROPERTY PRIOR TO THE CLOSING
DATE.
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Trade Center - Eastgate
5.6 Construction
Warranty. Seller agrees that if a
defect in materials or workmanship in the construction of the Improvements
resulting from defective workmanship and/or materials (“Defect”) is
discovered by Purchaser on or prior to the first anniversary of the Closing Date
(“First
Anniversary”),
Purchaser shall give Seller written notice thereof (“Defect
Notice”) on or
prior to the First Anniversary (time being of the essence with respect thereto).
If Seller receives a Defect Notice prior to the First Anniversary, Seller shall,
at its sole expense, cause such Defect to be repaired or remedied as soon as
reasonably practical. Notwithstanding the foregoing, nothing contained in this
Paragraph
5.5 shall:
(i) require Seller to repair or remedy any Defect to the extent such repair or
remediation is necessitated primarily by the negligent or wrongful acts or
omissions of, or misuse of the item requiring such repair or remediation by,
Purchaser or its employees, agents, contractors or invitees; (ii) require Seller
to repair or remedy any Defect if the coverage afforded by any warranty or
maintenance/service contract relating to the item in question has been impaired
or invalidated primarily by Purchaser or its employees, agents, contractors or
invitees; or (iii) require Seller to repair or remedy any Defect for which a
Defect Notice is not received by Seller on or prior to the First
Anniversary.
5.7 Force
Majeure. Notwithstanding any
provision (except Section
11.1 below)
providing otherwise in this Agreement, Seller shall not be held responsible for
delays in the performance of its obligations hereunder when caused by
Purchaser’s action or inaction, material shortages, governmental action or
inaction, weather, acts of God, labor disputes or other causes beyond the
reasonable control of Seller (collectively, “Force
Majeure”).
6. CLOSING
AND CLOSING CONDITIONS
6.1 Closing. The closing of the
transaction contemplated herein shall be held on (i) the date which is five (5)
business days after the Closing Conditions Satisfaction Date, or (ii) if Seller
has failed to satisfy any of the conditions or obligations of Seller as set
forth in this Section 6.1 of this
Agreement, and Purchaser has elected to close as set forth in Section 11.1 of this
Agreement, then such other date as Purchaser may designate (such date, herein
called the “Closing
Date” or the
“Closing”). The
Closing shall be held at the offices of the Title Company in Memphis, Tennessee
(which agrees to perform the services of escrow agent for such Closing), or at
such other location as may be acceptable to Seller and Purchaser.
(a) Seller
Closing Obligations. At Closing, Seller shall
deliver for the benefit of Purchaser the following items (except (vi) shall be
delivered in due course after closing), each duly executed and acknowledged
where required:
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(i) a Special
Warranty Deed in the form of Exhibit “H” attached
hereto, dated as of the Closing Date, conveying the Land and the Improvements to
Purchaser, subject only to the Permitted Exceptions;
(ii) a Xxxx of
Sale and Blanket Assignment (the “Xxxx
of Sale”) in the
form of Exhibit “I” attached
hereto conveying and assigning to Purchaser the property (including the
warranties by contractors, suppliers and/or manufacturers as to any part of the
Improvements) described therein, subject only to the Permitted
Exceptions;
(iii) evidence
acceptable to the Title Company, authorizing the consummation by Seller of the
transaction contemplated hereby and the execution and delivery of the closing
documents on behalf of Seller;
(iv) an
executed certificate with respect to Seller's non-foreign status in the form
attached hereto as Exhibit
“J”;
(v) an
executed copy of Internal Revenue Service Form 1099 as required by the Tax
Reform Act of 1986, and all regulations applicable thereto;
(vi) the
Owner's Policy in due order promptly after the Closing.
(b) Purchaser
Closing Obligations. At the Closing,
Purchaser, or its permitted assignee, shall do the following:
(i) deposit
with the Title Company the Purchase Price (less the Xxxxxxx Money, a portion of
which may be required to fund the Punchlist Escrow, as defined below in
Section 6.4) and all
other Closing Costs required to be paid by Purchaser, adjusted as provided
herein, by wire transfer in immediately available funds to a bank account
designated by the Title Company;
(ii) provide
evidence acceptable to the Title Company, authorizing the consummation by
Purchaser of the transaction contemplated hereby and the execution and delivery
of the closing documents on behalf of Purchaser; and
(iii) execute
an original of the Xxxx of Sale.
(c) Further
Assurances. At the Closing, Seller
and Purchaser shall execute and deliver such other instruments and documents as
may be reasonably necessary in order to complete the Closing of the transactions
contemplated hereunder, the form and content of which shall be reasonably
acceptable to the Title Company.
(d) Delivery
of Closing Documents. Seller and Purchaser
acknowledge and agree to use commercially reasonable efforts to execute and
deliver to the Title Company to hold in escrow all documents required to be
delivered at the Closing pursuant to this Section 6.1 at least
two (2) business days prior to the Closing Date.
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(e) Delivery
of Possession. At Closing, Seller shall
deliver possession of the Property to Purchaser subject only to the Permitted
Exceptions; shall provide Purchaser with all keys to the Property; and shall
deliver or cause to be delivered to Purchaser all material books, records and
documents pertaining to the construction of the Improvements (including, without
limitation, copies of all plans and specifications). All such documents that are
located at the Property may be delivered with the Property. Seller shall make
any other such documents available to Purchaser at a mutually convenient time
and place, and Seller may retain additional copies of such items as it deems
necessary or convenient.
6.2 Closing
Conditions For Purchaser's Benefit. The obligations of
Purchaser to consummate
the transaction contemplated hereby are subject to the following preconditions
to Closing:
(a) Absence
of Judicial Action. The transactions
contemplated under this Agreement to be effected on the Closing Date shall not
have been restrained or prohibited by any injunction or order or judgment
rendered by any court or other governmental agency of competent jurisdiction and
no proceeding shall have been instituted and be pending in which any creditor of
Seller or any other person seeks to restrain such transactions or otherwise to
attach or impose a lien on any of the Property, provided that any such
proceeding or action contemplated by this Section 6.2(a) shall
not be deemed to include any proceeding or action brought by, through or under
Purchaser.
(b) Absence
of Changes. No commercially
unreasonable change shall have occurred that negatively affects the use or value
of the Property without Purchaser's written approval or consent (except as
otherwise permitted or provided for herein), in (i) the state of title
matters disclosed in the Title Commitment and the Survey or (ii) in the
state of the environmental condition as disclosed in the Environmental Report
inspected by Purchaser unless such change to the matters described in the above
subsections (i) and (ii) do not have a material adverse effect on the operation
or condition (financial or otherwise) of the Property;
(c) Closing
Due Diligence Items. Purchaser shall have
received and approved the following “Closing
Due Diligence Items” prior
to the Closing, which approval shall not be unreasonably withheld or delayed:
(i) Title
Assurance. At the Closing, Seller
shall cause the Title Company at Seller and Purchaser's expense to furnish
Purchaser with a UCC Search Report on Seller certified by the Secretary of State
of the state in which the Property is located and the state in which Seller is
organized indicating that, as of the Closing Date, there are no filings against
any of the Personal Property.
(ii) Updated
Title and Survey. Seller shall furnish
Purchaser with an updated, as-built, Survey prior to Closing. If any exceptions
(other than Permitted Exceptions, Approved Survey Matters and updates approved
pursuant to Section 5.5) appear
in any updated Title Commitment or on any updated Survey that are unacceptable
to Purchaser in Purchaser's reasonable discretion, Purchaser shall notify Seller
of such fact in writing within five (5) business days after Purchaser's receipt
of the updated Title Commitment and/or updated Survey and copies of all recorded
instruments (other than Permitted Exceptions) affecting title to the Property.
Seller shall eliminate or modify any such objectionable exceptions or arrange
for elimination or a commercially reasonable resolution of same at Closing to
Purchaser's reasonable satisfaction (“Exception
Satisfaction”)
at least
five (5) business days prior to Closing; provided, however, Purchaser shall have
no right to object to and Seller shall have no obligation to eliminate or modify
any exception that is either (i) reasonably required in order for Seller to
perform its obligations hereunder or (ii) does not materially interfere with the
use or value of the Property as a office/warehouse/distribution building or
create or constitute a material defect in marketable fee simple title to the
Property;
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(iii) Evidence
of Completion;
(iv) Temporary
CO (to be followed after Closing by the Final CO as provided in this Agreement);
and
(v) Copies of
(A) the General Construction Contract and all modifications, amendments and
material correspondence relating thereto with the economic terms therein
redacted, (B) all Change Orders (C) a list of all subcontractors used in
connection with the construction of the Required Improvements, (D) all
Service Contracts, (E) all notices received by Seller from Governmental
Authorities relating to the Property and (F) all plans and specifications as to
the Property.
(d) Representations
and Warranties. All
representations and warranties made by Seller in this Agreement shall at the
time of Closing be true and effective in all respects.
(e) Covenants
of Seller. On the Closing Date, all
of the covenants and agreements in this Agreement (except the Punchlist Items)
on the part of Seller to be complied with or performed on or before the Closing
Date, shall have been fully complied with and performed in all material
respects, and there shall exist no material default or material breach by Seller
under this Agreement.
In the
event that any of the above conditions are not satisfied or (waived in writing
by Purchaser) prior to the Closing, Purchaser may terminate this Agreement by
delivery of a written termination notice to Seller on or before the Closing
Date, which termination shall become effective if Seller has not satisfied the
condition specified in the written termination notice within 10 days after
Seller’s receipt of such written termination notice. In the event of such
termination, the Xxxxxxx Money and any undistributed accrued interest shall be
returned to Purchaser free of any claim by Seller, and neither party thereafter
shall have any further rights or obligations to each other under this Agreement.
Notwithstanding anything to the contrary herein, if any of the above conditions
are not satisfied as a result of Purchaser’s action(s) or omission(s), then any
such unsatisfied condition shall be deemed automatically waived by Purchaser,
and Purchaser shall proceed to Closing as provided herein. Notwithstanding
anything to the contrary in this Agreement, if any representation or warranty of
Seller is, as of the Closing Date, untrue only in an immaterial respect, then
Purchaser shall not have any right to terminate the Agreement and Purchaser’s
sole and exclusive remedy shall be to pursue relief as provided in Section
11.1(d).
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6.3 [Intentionally
deleted.]
6.4 Escrows.
(a) Punchlist
Escrow. An amount equal to the
greater of (i) $100,000 and (ii) 200% of the cost of correcting any Punchlist
Items set forth in a Punchlist provided to Seller before the Closing as
reasonably estimated by the General Contractor shall be escrowed with the Title
Company pursuant to an escrow agreement in the form of the attached Exhibit
“E” (the
“Punchlist
Escrow”) until
Seller delivers the items set forth below to Purchaser, whereupon the funds in
the Punchlist Escrow, together with any interest thereon, shall be paid to
Seller:
(i) Final CO,
provided this requirement shall be deemed waived if the delay in the issuance of
the Final CO is due to items within Purchaser’s control and there are no
remaining unfulfilled conditions to the issuance of the Final CO which are in
Seller’s control; and
(ii) Evidence
of completion of all Punchlist Items in substantial conformance to the Final
Construction Plans as reasonably determined by the Design Architect and
Purchaser’s Construction Representative; and
(iii) Evidence
of payment of all amounts due to the General Contractor under the terms of the
General Construction Contract.
If Seller
shall have failed to complete all Punchlist Items to Purchaser’s reasonable
satisfaction within seventy-five (75) days following Closing, then Purchaser may
elect to have such unfinished Punchlist Items completed by competitive licensed
contractors of Purchaser’s reasonable choice, who shall be paid from the
Punchlist Escrow to the extent funds are available from the Punchlist Escrow and
otherwise by Seller.
(b) Mechanic
Lien Escrow. In addition to the
Punchlist Escrow, an additional portion of the Purchase Price shall be held by
the Title Company (the “Lien
Escrow”) until
Seller delivers to Purchaser final unconditional lien waivers from the General
Contractor and any other party which has a lien filed against the Property on
the day of Closing. The amount funded into the Lien Escrow shall be the greater
of (i) 150% of the amount due to the General Contractor as of the Closing Date,
taking into account the net cost of all Change Orders plus the amount of all
mechanics or judgment liens filed against the Property on the Closing Date, or
(ii) the amount required by the Title Company so that the Title Policy can be
issued without exception for possible mechanic’s and judgment liens relating to
the Property. Any interest earned on the Lien Escrow shall belong to Seller. The
Lien Escrow shall be documented by an escrow agreement in substantially the same
form as Exhibit
“F” with the
addition of commercially reasonable terms regarding the payment by the Title
Company of draw requests made by the General Contractor and approved solely by
the Seller with no notice required to the Purchaser. The funds in the Lien
Escrow shall be paid to Seller upon satisfaction of the conditions in this
Section 6.4(b). Purchaser acknowledges that the Lien Escrow is for the sole
benefit of the Title Company so that the Owner’s Policy may be issued without
exception as to mechanics or judgment liens, and Purchaser’s approval shall not
be required for any matter in connection with the Lien Escrow.
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7. PRORATIONS
AND CLOSING COSTS
7.1 Taxes. Any real estate taxes
that are not yet due and payable for the current year with respect to the
Property shall be prorated
and Purchaser shall receive a credit against the Purchase Price.
7.2 [Intentionally
Deleted].
7.3 Adjustments;
Reproration. After receipt of final
tax xxxx and bills for Operating Costs, Purchaser
shall prepare and present to Seller a calculation of the reproration of such
items, based upon the actual amount of such items charged to or received by the
parties for the year or other
applicable fiscal period. The parties shall make the appropriate adjusting
payment between them within 30 days after presentment to Seller of Purchaser's
calculation. This provision shall survive the Closing.
7.4 Closing
Costs.
(a) Shared
Closing Costs. Seller and Purchaser
shall equally share
(i) the
premium for the Owner’s Policy (excluding the cost of the survey exception
modification which shall be paid for by Purchaser).
(ii) any title
company costs and expenses in connection with the examination of title to the
Property;
(iii) all
recording costs and recording fees for the Special Warranty Deed; and
(iv) any
escrow fees and other customary charges of the Title Company.
(b) Other
Closing Costs. Seller shall be
responsible for (i) any real estate or personal property taxes, assessments,
penalties and interests that are past due and payable as of the Closing Date to
the extent that same do not relate to any period on or after the Closing Date,
(ii) utility fees and charges for the Property for the period of time prior to
and on the Closing Date and (iii) brokerage commissions payable to Xxxxx Xxxxx
Associates, LLC pursuant to separate written commission agreement. Other costs,
charges and expenses shall be paid as provided in this Agreement, or in the
absence of such provision, in accordance with local law or customs. Each party
shall pay its own attorney’s fees.
8. INTENTIONALLY
DELETED.
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9. COMMISSIONS
9.1 Seller's
Indemnity. SELLER
SHALL INDEMNIFY PURCHASER AND HOLD AND DEFEND PURCHASER HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, DEMANDS, COSTS AND
EXPENSES (INCLUDING ACTUAL, REASONABLE ATTORNEYS' FEES AT OR BEFORE THE TRIAL
LEVEL AND ANY APPELLATE PROCEEDINGS) ARISING OUT OF ANY CLAIM MADE BY ANY
REALTOR, BROKER, FINDER, OR ANY OTHER INTERMEDIARY WHO CLAIMS TO HAVE BEEN
ENGAGED, CONTRACTED OR UTILIZED BY SELLER IN CONNECTION WITH THE TRANSACTION
WHICH IS THE SUBJECT MATTER OF THIS AGREEMENT. THIS INDEMNIFICATION SHALL
SURVIVE THE CLOSING.
9.2 Purchaser's
Indemnity. PURCHASER SHALL INDEMNIFY, HOLD
HARMLESS AND DEFEND SELLER FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
LIABILITIES, DAMAGES, DEMANDS, COSTS AND EXPENSES (INCLUDING ACTUAL, REASONABLE
ATTORNEYS' FEES AT OR BEFORE THE TRIAL LEVEL AND ANY
APPELLATE PROCEEDINGS) ARISING OUT OF ANY CLAIM MADE BY ANY REALTOR, BROKER,
FINDER OR ANY OTHER INTERMEDIARY WHO CLAIMS TO HAVE BEEN ENGAGED, CONTRACTED OR
UTILIZED BY PURCHASER IN CONNECTION WITH THE TRANSACTION WHICH IS THE SUBJECT
MATTER OF THIS AGREEMENT; PROVIDED HOWEVER, THIS INDEMNITY DOES NOT INCLUDE
CLAIMS MADE BY XXXXX XXXXX ASSOCIATES, LLC. THIS INDEMNIFICATION SHALL SURVIVE
THE CLOSING.
10. FURTHER
INSTRUMENTS
10.1 Further
Instruments. Seller will, whenever
reasonably requested by Purchaser; and Purchaser will, whenever reasonably
requested by Seller, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, any and all conveyances, assignments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction herein provided and to carry out the terms and provisions of
this Agreement.
11. REMEDIES
11.1 Seller's
Default.
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(a) Notice of
Default. Notwithstanding anything
in this Agreement to the contrary, Purchaser will, prior to the exercise of any
remedies contained in this Agreement, give Seller written notice (“Purchaser's
Default Notice”)
detailing with reasonable specificity the nature of such default. Purchaser
shall endeavor to provide Purchaser’s Default Notice as soon as reasonably
practicable upon Purchaser becoming aware of the extent and consequences of
Seller’s default. Notwithstanding the foregoing, under no circumstances shall
any delay by Purchaser in providing Purchaser’s Default Notice be construed as a
waiver or implied waiver by Purchaser of its remedies under this Agreement.
Until the date which is four (4) business days after receipt of Purchaser's
Default Notice, Seller may, at its option, elect to waive the option to cure the
default; provided, however, Seller's failure to give Purchaser written notice of
its election within this time period shall be deemed an election by Seller to
cure the default. If Seller waives its right to cure the default, Purchaser
shall thereafter be entitled to exercise the remedies in accordance with the
terms of this Section 11.1. If
Seller elects or is deemed to have elected to cure the default specified in
Purchaser's Default Notice, Seller shall commence to cure such default within
two (2) business days from the date of such election and diligently pursue such
cure to completion (“Seller's
Cure Period”);
provided, however, (i) Seller’s Cure Period shall end if Seller fails to
diligently pursue such cure to completion and (ii) if Seller fails to cure
such default within Seller's Cure Period, Purchaser may exercise its remedies in
accordance with the terms of Section 11.1 hereof.
In no event shall Seller’s Cure Period exceed five (5) days for a default which
can be cured solely by the payment of money or sixty (60) days for any other
default.
(b) Specific
Performance. If prior to or at the
Closing, Seller defaults hereunder or shall have failed to have performed any of
the covenants and/or agreements contained herein which are to be performed by
Seller as of the Closing Date, and Seller’s Cure Period has expired, then
Purchaser may, at its option and as its sole and exclusive remedy, seek specific
performance of such part or parts of the default which can be remedied by
specific performance, and/or, as to such part or parts of the default for which
specific performance is not a sufficient remedy, then Purchaser may xxx Seller
for the actual damages which it incurs. If Purchaser obtains any such specific
performance, Purchaser may recover all costs and expenses incurred in connection
with such enforcement, including reasonable attorney’s fees.
(c) Termination
Default. If the Closing Date has
not occurred on or before the date that is 180 days after the Unadjusted
Required Completion Date, then Purchaser shall have a right to terminate this
Agreement, whereupon the Xxxxxxx Money shall be returned to Purchaser and
neither party shall have any further rights or obligations hereunder except
those that expressly survive. Purchaser shall exercise such right to terminate
by written notice given to Seller on or before the 30th day
following the end of such 180 day period, and if Purchaser shall have failed to
timely give such notice, then Purchaser shall be deemed to have waived such
right to terminate. If Purchaser shall terminate this Agreement as provided in
this Section
11.1(c), then
Purchaser shall be entitled to the remedy of collecting its actual damages from
Seller resulting from Seller’s default and failure to close; provided, however,
that following such termination of this Agreement, (i) such actual damages shall
not include Purchaser’s costs of removing the Installed Equipment from the
Property, and (ii) such actual damages shall be apportioned on the basis of such
part of said 180 day delay which was caused by Force Majeure and such part which
was not so caused, and Purchaser shall be entitled to collect only the portion
of its actual damages that is attributable to the delay not caused by Force
Majeure. For example, if Purchaser exercises its right to terminate on the
180th day of
delay and there were 54 days of delay caused by Force Majeure, then Purchaser’s
actual damages would be reduced by 30% (54 days divided by 180
days).
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(d) Remedies Following
Closing. If after Closing, Seller
is in default under this Agreement and Seller’s Cure Period has expired
(including any default which commenced or occurred prior to Closing), then, to
the extent such default was not cured by the remedy of specific performance as
set forth in Section 11.1(b),
Purchaser may xxx Seller for actual damages which it incurs. Purchaser
shall not be entitled to collect damages after Closing for delays in completion
of construction, as to which the exclusive remedy is the Liquidated Damages
Payment under Section
2.1
above.
As
used in this Section 11, “actual damages” shall mean all of the injured party’s
actual and reasonably anticipated out of pocket and commercially reasonable
expenses incurred as an immediate and direct result of the other party’s
default. Notwithstanding anything to the contrary in this Agreement, if
Purchaser defaults under this Agreement, Seller shall not be precluded from, and
no provision in this Agreement shall be construed to limit or preclude Seller
from, recovering its benefit-of-the-bargain damages from Purchaser (i.e., such
damages that would put Seller in the same position it would have been in had
Purchaser fully performed under this Agreement) provided Seller exercises
ordinary care to mitigate the effects of any breach by
Purchaser.
(e) NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN, PURCHASER HEREBY SPECIFICALLY WAIVES ANY AND ALL RIGHTS
WHICH IT MAY HAVE TO SUCH EXEMPLARY, PUNITIVE, AND CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, DAMAGES, FOR LOSSES OF USE, INCOME, FINANCING,
BUSINESS AND REPUTATION, AND FOR LOSS OF MANAGEMENT OR EMPLOYEE PRODUCTIVITY OR
OF THE SERVICES OF SUCH PERSONS, LOST PROFITS OR LOST BUSINESS OPPORTUNITIES)
RESULTING FROM SELLER'S DEFAULT UNDER THIS AGREEMENT, AND, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, WAIVES ITS RIGHT TO TERMINATE THIS
AGREEMENT.
ALL
CLAIMS OF ANY TYPE FOR A DEFAULT BY SELLER HEREUNDER SHALL BE DEEMED WAIVED
UNLESS A CLAIM FOR ANY SUCH DEFAULT IS ASSERTED WITH REASONABLE DETAIL BY
WRITTEN NOTICE TO SELLER ON OR BEFORE THE DATE THAT IS 18 MONTHS AFTER THE
CLOSING DATE, OR IF THIS AGREEMENT IS TERMINATED, 18 MONTHS AFTER THE DATE THIS
AGREEMENT IS TERMINATED. NOTHING CONTAINED IN THIS SECTION 11.1(E) SHALL BE
DEEMED TO AFFECT ANY LIQUIDATED DAMAGES PAYMENT, WHEN APPLICABLE, UNDER SECTION
2.1.
11.2 Purchaser's
Default.
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(a) Notice
of Default. Notwithstanding anything
in this Agreement to the contrary, Seller will, prior to the exercise of the
remedies contained in Section 11.2, give
Purchaser written notice (“Seller's
Default Notice”)
detailing with reasonable specificity the nature of such default. Seller shall
endeavor to provide Seller’s Default Notice as soon as reasonably practicable
upon Seller becoming aware of the extent and consequences of Purchaser’s
default. Notwithstanding the foregoing, under no circumstances shall any delay
by Seller in providing Seller’s Default Notice be construed as a waiver or
implied waiver by Seller of its remedies under this Agreement. Until the date
which is four (4) business days after receipt of Seller's Default Notice,
Purchaser may, at its option, elect to cure such default or waive the option to
cure the default; provided, however, Purchaser's failure to give Seller written
notice of its election within this time period shall be deemed an election by
Purchaser to cure the default. If Purchaser waives its right to cure the
default, Seller shall thereafter be entitled to exercise the remedies in
accordance with the terms of Section 11.2(b). If
Purchaser elects or is deemed to elect to cure the default specified in Seller's
Default Notice, Purchaser shall commence to cure such default within two (2)
business days from the date of such election and diligently pursue such cure to
completion (“Purchaser's
Cure Period”);
provided, however, (i) Purchaser’s Cure Period shall end if Purchaser
fails to diligently pursue such cure to completion and (ii) if Purchaser
fails to cure such default within Purchaser's Cure Period, Seller may exercise
its remedies in accordance with the terms of Section 11.2 hereof.
In no event shall Purchaser’s Cure Period exceed five (5) days for a default
which can be cured solely by the payment of money or sixty (60) days for any
other default.
(b) Remedies
Prior to Closing. If, prior to or at the
Closing, Purchaser defaults hereunder and fails to perform any of the covenants
and/or agreements contained herein which are to be performed by Purchaser,
Seller may, at its option, as Seller’s sole and exclusive remedy by notice in
writing to Purchaser either (A) (I) terminate this Agreement and xxx Purchaser
for the actual and benefit-of-the-bargain damages, costs and fees (including
reasonable attorney’s fees ant costs) incurred by Seller, whereupon the Title
Company shall retain the Xxxxxxx Money until resolution of such suit
and, at
Seller’s option, (II) seek specific performance of Purchaser’s obligation to
remove the Installed Equipment unless Purchaser agrees that the Installed
Equipment or any part thereof which remains on the Property following expiration
of the Removal Period is Abandoned Installed Equipment and the provisions in
Section
11.3 below
relating to transfer of ownership to Seller of the Abandoned Installed Equipment
shall thereupon apply; provided if Purchaser has elected by notice in writing to
Seller within ten (10) days of Seller’s termination notice to Purchaser, Seller
shall permit
the removal of the Installed Equipment for the
duration of the Removal Period (which for the purpose of this paragraph shall
commence upon delivery of Seller’s notice of termination of this Agreement
hereunder and shall be subject to day by day extension only as permitted under
Section
11.3 below or
(B) enforce specific performance of this Agreement (in which case Seller may
recover all costs and expenses incurred in connection with such enforcement,
including reasonable attorney’s fees).
(c) Remedies
Following Closing. If,
following Closing, Purchaser is in default and Purchaser’s Cure Period has
expired, Seller may xxx Purchaser for actual damages which it incurs.
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(d) SELLER
HEREBY SPECIFICALLY WAIVES ANY AND ALL RIGHTS WHICH IT MAY HAVE TO SUCH
EXEMPLARY, PUNITIVE, AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSSES OF USE, INCOME, FINANCING, BUSINESS AND REPUTATION, AND FOR
LOSS OF MANAGEMENT OR EMPLOYEE PRODUCTIVITY OR OF THE SERVICES OF SUCH PERSONS,
LOST PROFITS OR LOST BUSINESS OPPORTUNITIES) RESULTING FROM PURCHASER'S DEFAULT
UNDER THIS AGREEMENT, AND, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,
WAIVES ITS RIGHT TO TERMINATE THIS AGREEMENT.
ALL
CLAIMS OF ANY TYPE FOR A DEFAULT BY PURCHASER HEREUNDER SHALL BE DEEMED WAIVED
UNLESS A CLAIM FOR ANY SUCH BREACH IS ASSERTED WITH REASONABLE DETAIL BY WRITTEN
NOTICE TO PURCHASER ON OR BEFORE THE DATE THAT IS 18 MONTHS AFTER THE CLOSING
DATE, OR IF THIS AGREEMENT IS TERMINATED, 18 MONTHS AFTER THE DATE THIS
AGREEMENT IS TERMINATED.
11.3. Abandoned Installed
Equipment. If,
following termination of this Agreement by Seller under Section
11.2 of this
Agreement by reason of Purchaser’s default, Purchaser elects not to remove any
of the Installed Equipment then located in the Property, or fails to remove any
of the Installed Equipment within the Removal Period (unless such failure is due
to delay caused by Force Majeure or the actions of Seller or General Contractor,
in which event the Removal Period shall be extended on a day by day basis for
each day’s delay caused by Force Majeure up to a maximum of 90 delay days or
indefinitely to the extent caused by the actions of Seller or General
Contractor) (in either case, herein called the “Abandoned
Installed Equipment”), then
Seller shall take ownership of the Abandoned Installed Equipment on an “as is,
where is” basis, with all faults and without representation or warranty from
Purchaser of any kind, express, implied or statutory, including without
limitation, any warranty of merchantability, quality or fitness for a particular
purpose. Upon transfer of ownership of the Abandoned Installed Equipment to
Seller as aforesaid, Purchaser shall, upon written request, execute a Xxxx of
Sale of the Abandoned Installed Equipment for the benefit of Seller or its
nominee, which Xxxx of Sale shall include confirmation of the transfer on an “as
is, where is” basis without representation or warranty as aforesaid. All risks
with respect to the Abandoned Installed Equipment shall pass to Seller effective
as of the date upon which the Installed Equipment becomes the Abandoned
Installed Equipment.
12. RISK OF
LOSS
12.1 Casualty
Prior to Closing. Seller bears the risk of
loss of the Property prior to Closing. Purchaser bears the risk of loss of the
Purchaser’s equipment and personal property of any type prior to Closing.
Seller
shall not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements that may have been constructed,
erected or installed in, or about the Property for the benefit of, or by or for
Purchaser. Each party shall be responsible for its own personal property. This
Section is subject to the terms of the waiver of subrogation in this
Agreement.
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12.2 Condemnation. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Property or any portion thereof, Seller will notify Purchaser of the pendency of
such proceedings. Purchaser may participate in any such proceedings, and Seller
shall provide
Purchaser with monthly reports regarding the status of the condemnation
proceedings. If (a) the whole or any part of the Property or any interest
in the Property is taken by condemnation or right of eminent domain prior to the
Closing (or if any such taking is threatened) and (b) the Property is
rendered unsuitable for use as a warehouse office and distribution facility
substantially of the same size and utility as the Improvements shown in the
Preliminary Design Documents (or would be rendered so unsuitable if the
threatened taking occurs), Purchaser shall have the right to terminate this
Agreement within ten (10) business days following receipt of Seller’s notice of
such condemnation. If Purchaser terminates this Agreement pursuant to this
Section, the Xxxxxxx Money shall be promptly returned to Purchaser and
thereafter, Seller and Purchaser shall have no further obligations to the other,
except for obligations which by the terms of this Agreement survive its
termination. Purchaser's failure to terminate within such ten (10) business day
period shall be deemed to be a waiver of the termination right under the
preceding sentence. If
Purchaser elects not to terminate this Agreement, or if the taking will be
consummated after the Closing, the transaction contemplated by this Agreement
shall be closed in accordance with the terms of this Agreement notwithstanding
any such taking, but at the Closing, Seller shall pay to Purchaser any awards
collected in connection with such taking and shall assign to Purchaser
all of Seller's rights to collect any awards which thereafter may be payable as
a result of, or to recover against others for, such taking.
13. INTENTIONALLY
DELETED
14. NO
ASSUMPTION
OR PARTNERSHIP
14.1 No
Assumption. Purchaser is not and is
not deemed to be, a successor of Seller and it is expressly understood and
agreed that, except as may otherwise be expressly agreed to by Purchaser
elsewhere in this Agreement and in the documents delivered at the Closing,
Purchaser has not and does not hereby assume or agree to assume any liability
whatsoever of Seller.
14.2 No
Partnership. Purchaser and Seller do
not intend to in any way create a partnership by execution of this Agreement or
consummation of the transaction contemplated hereby and any such relationship is
expressly denied.
15. NOTICES
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15.1 Notices. Any notice, request,
demand, instruction or other communication to be given to either party
hereunder, except those required to be delivered at the Closing, shall be in
writing, shall, if delivered to Purchaser, Purchaser’s Construction
Representative, INCLUDE
A SELLER NOTICE, and
shall, if delivered to Seller, Seller’s Construction Representative or Design
Architect, INCLUDE
A PURCHASER NOTICE, and
shall be deemed to be delivered upon receipt or refusal when (a) delivered
by facsimile if receipt is confirmed by return facsimile to the sender of the
notice, (b) hand delivered, (c) delivered to a national overnight
air courier service, or (d) deposited in registered or certified mail,
return receipt requested, addressed as follows:
| If to Purchaser: | Xxxxx of Xxxx, L.P. | |
| Xxx Xxxxx xx Xxxx Xxxxx | ||
| Xx Xxxx, Xxxxx 00000 | ||
| Attn: Xxxxxxx X. Xxxxxx | ||
| xxxxxxx@xxxxx.xxx | ||
| Fax 000.000.0000 | ||
| With a copy to: | Xxxxx X. Xxxxxxx | |
| Xxxxxx Xxxxxxx Hanover Xxxxx, pllc | ||
| Suite 450 | ||
| 0000 Xxxxxx Xxxxxx | ||
| Xxxxxxx, Xxxxxxxxx 00000-0000 | ||
| xxxxxxxx@xxxxxxxxxxxxx.xxx | ||
| Fax: (000) 000-0000 | ||
| If to Seller: | DTC Eastgate 1, LLC | |
| c/o Hillwood Development Company, LLC | ||
| 0000 XXX Xxxxxxx, Xxxxx 000 | ||
| Xxxxxx, Xxxxx 00000 | ||
| Attention: Xxxxxxx Xxxxxx | ||
| Fax: (000) 000-0000 | ||
| Phone: (000) 000-0000 | ||
| Xxxxxxx.xxxxxx@xxxxxxxx.xxx | ||
| with additional | DTC Eastgate 1, LLC | |
| copies to: | c/o Hillwood Development Company, LLC | |
| 0000 XXX Xxxxxxx, Xxxxx 000 | ||
| Xxxxxxxxx: Xxxxxxx Xxxxxxxx | ||
| Fax: (000) 000-0000 | ||
| Phone: (000) 000-0000 | ||
| Xxxxxxx.xxxxxxxx@xxxxxxxx.xxx |
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| If to Seller’s | DTC Eastgate 1, LLC | |
| Construction | c/o Hillwood Development Company, LLC | |
| Representative | 0000 XXX Xxxxxxx, Xxxxx 000 | |
| Xxxxxx, Xxxxx 00000 | ||
| Attention: Xxx Xxxx | ||
| Phone: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
| With a copy to: | DTC Eastgate 1, LLC | |
| c/o Hillwood Development Company, LLC | ||
| 0000 XXX Xxxxxxx, Xxxxx 000 | ||
| Xxxxxx, Xxxxx 00000 | ||
| Attention: Xxxxx Xxxxxx | ||
| Phone: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
| Xxxxx.xxxxxx@xxxxxxxx.xxx | ||
| if to Design Architect: | GSR Xxxxxxx Architects | |
| 0000 Xxxxxxxx Xx., Xxxxx Xxx | ||
| Xxxxxx, XX 00000 | ||
| Mr. Xxxx Xxxxxxxx | ||
| Phone: (000) 000-0000 | ||
| xxxxxxxxx@xxx-xxxxxxx.xxx |
16. MISCELLANEOUS
16.1 Entire
Agreement. This Agreement and the
exhibits attached hereto contain the entire agreement between the parties and
all previous agreements, including but not limited to any proposals exchanged
among the parties are superceded hereby. No modification or amendment of this
Agreement shall be of any force or effect unless made in writing and executed by
Purchaser and Seller.
16.2 Counterparts
and Facsimile Signatures. This Agreement maybe
executed in any number of counterparts which together shall constitute the
agreement of the parties. Executed
facsimile copies of this Agreement shall be binding upon the parties herein, and
facsimile signatures appearing hereon shall be deemed to be original signatures.
Following execution by facsimile by both parties, Seller shall execute four (4)
originals of this Agreement and forward by overnight courier to Purchaser;
Purchaser shall execute such counterparts and deliver same to the Title Company
five business days following receipt thereof from Seller
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16.3 Time
of the Essence. Time is of the essence
with respect to the performance of all obligations provided herein and the
consummation of all transactions contemplated hereby.
16.4 Assignment. This Agreement, and the
rights and obligations of Purchaser hereunder, may be assigned by Purchaser to
any entity that is controlled by or under common control with the Purchaser
without the consent of Seller, provided such entity assumes Purchaser’s
obligations hereunder. Upon any such assignment by Purchaser, Purchaser shall
not be relieved from further obligation or liability hereunder; and, without
limitation, any agreements, waivers or consents made or given by Purchaser under
this Agreement shall be binding upon Purchaser or any such approved assignee.
Seller
may not assign any of its rights or obligations under this Agreement without the
prior written consent of Purchaser in each instance.
16.5 Dates. Whenever any
determination is to be made or action is to be taken on a date specified in this
Agreement, if such date shall fall on Saturday, Sunday or legal holiday under
the laws of the State of Mississippi, then in such event said date shall be
extended to the next day which is not a Saturday, Sunday or legal
holiday.
16.6 Binding
on Successors and Assigns. This Agreement and the
terms and provisions hereof shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, personal
representative, successors and assigns whenever the context so requires or
admits.
16.7 Records. Purchaser shall not file
this Agreement, nor any memorandum hereof, in any public records without the
prior written consent of Seller, and any such memorandum which is filed without
such consent shall be, in Seller's sole discretion, automatically deemed null
and void. Seller
and Purchaser consent to the filing of the Memorandum of Option (as defined in
Section
16.24(E)).
16.8 Attorneys'
Fees. Should either party
hereto institute any action or proceeding in court to enforce any provision
hereof or for damages by reason of any alleged breach of any provision of this
Agreement or for any other judicial remedy, the prevailing party shall
be entitled
to receive from the losing party all reasonable attorneys' fees, paralegals’
fees and all court costs in connection with said proceeding.
16.9 Public
Disclosure; Confidentiality. Seller and Purchaser
covenant and agree that they will not issue any press releases or make similar
disclosures to any reporting publication disclosing the monetary terms of this
Agreement, except as may be required by law or as mutually agreed upon by Seller
and Purchaser; provided a general press release regarding the general nature of
the project shall be permitted. In addition, Seller
shall keep, and shall cause its respective representatives to keep the existence
and terms of this Agreement
strictly confidential, except (a) to the extent previously disclosed in the
approved press release or any public hearings, (b) to the extent disclosure
must be made to enable the parties
to perform acts necessary to consummate Closing or take actions permitted under
this Agreement, (c) disclosure to attorneys, accountants and other
professionals who are similarly bound to obligations of confidentiality, and to
regulators and prospective lenders and (d) as may be required by
law.
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16.10 Reporting
Person. The Title Company is
hereby designated as the “Reporting Person” pursuant to Section 6045 of the
Code and the regulations promulgated thereunder.
16.11 Paragraph/Section
Headings. The paragraph/section
headings contained in the Agreement are for convenience only and shall in no way
enlarge or limit the scope or meaning of the various and several
paragraphs/sections hereof.
16.12 Governing
Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Mississippi applicable to transactions in Mississippi.
16.13 ERISA. Purchaser represents that
Purchaser is not an employee benefit plan or a governmental plan or a party in
interest of either such a plan, and that the funds being used to acquire the
Property are not plan assets or subject to state laws regulating investments of
and fiduciary obligations with respect to a governmental plan. As used herein,
the terms "employee benefit plan", "party in interest", "plan assets" and
"governmental plan" shall have the respective meanings assigned to such terms in
ERISA, and the term "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended, and the regulations promulgated in connection
therewith. Upon the request of Seller, Purchaser shall deliver to Seller at
Closing a certificate stating that the foregoing representations are true and
correct and containing an agreement by Purchaser to indemnify Seller against any
inaccuracy in such representations. The foregoing covenants shall survive
Closing.
16.14 Partial
Invalidity. If any provision of this
Agreement is held invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby, and each provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law, and there shall be
substituted in lieu of such invalid or unenforceable provision a provision as
near in substance as may be valid and enforceable under applicable
law.
16.15 Discharge
of Obligations. All
warranties, representations, covenants, obligations and agreements contained in
this Agreement shall survive the Closing for a period of 18 months after the
Closing Date.
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16.16 Limited
Liability. Seller and Purchaser
agree that no individual officer or director or representative of Seller or
Purchaser shall have any personal liability under this Agreement or any document
executed in connection with the transactions contemplated by this
Agreement.
16.17 No
Third Party Rights. Nothing in this
Agreement, express or implied, is intended to confer upon any person, other than
the parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
16.18 Further
Assurances. Both Seller and Purchaser
agree that it will without further consideration execute and deliver such other
documents and take such other action, whether prior or subsequent to Closing, as
may be reasonably requested by the other party to consummate more effectively
the transactions contemplated hereby.
16.19 Construction. The parties acknowledge
that the parties and their counsel have reviewed and revised this Agreement and
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any exhibits or amendments
hereto.
16.20 Uniform
Vendor and Purchaser Risk Act Not Applicable. It is the express intent
of the parties hereto that the provisions of Section 12.1 and
Section 12.2 govern
the rights of the parties in the event of damage to or condemnation of the
Property and that the Uniform Vendor and Purchaser Risk Act not apply to this
Agreement.
16.21 Incentives. To Seller’s current
actual knowledge, the construction of a proposed public
road (and all related utility infrastructure), which will run east-west along
the southern border of the Property and Tract 2, may qualify for financial
assistance from the Mississippi Development Authority through the Community
Development Block Grant Program (the “Incentives”).
Purchaser and Seller agree to assist and cooperate with each other in the
pursuit of the Incentives. Purchaser and Seller agree to promptly take such
actions as are reasonably required to obtain the Incentives, including executing
the Memorandum of Agreement substantially in the form of the attached
Exhibit
“M”. Seller
agrees to indemnify, defend and hold Purchaser harmless from and against any and
all liability, claims, demands or expenses (collectively, “Losses”) arising out
of Purchaser’s execution of the Memorandum of Agreement except to the extent
that such Losses arise out of Purchaser’s intentional bad faith or grossly
negligent conduct. This Section
16.21 shall
survive the Closing.
16.22 1031
Treatment as Like-Kind Exchange. Purchaser and Seller
acknowledge and agree that Seller may desire to have its transfer of the
Property to Purchaser qualify as a deferred like-kind exchange within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as amended. Seller
and Purchaser acknowledge and agree that Seller intends to effectuate a deferred
like-kind exchange through the use of an intermediary in the manner described in
Treas. Reg. § 1.031(k)-1(g)(8), example 4, or other applicable provision.
Purchaser agrees to reasonably cooperate with Seller in effectuating such a
deferred like-kind exchange through the use of such an intermediary including
consenting to an assignment of Seller’s rights under this Agreement to an
intermediary. Purchaser, however, shall have no obligation to locate, contract
for or take title to any property that Seller may wish to acquire or to incur
any indebtedness or other obligation as a part of Purchaser’s agreement to
cooperate. Seller will pay all expenses relating to any such like kind exchange
for its benefit.
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Purchaser
and Seller acknowledge and agree that Purchaser may desire to have its purchase
of the Property qualify as a deferred like-kind exchange within the meaning of
Section 1031 of the Internal Revenue Code of 1986, as amended. Seller and
Purchaser acknowledge and agree that Purchaser intends to effectuate a deferred
like-kind exchange through the use of an intermediary in the manner described in
Treas. Reg. § 1.031(k)-1(g)(8), example 4, or other applicable provision.
Seller agrees to reasonably cooperate with Purchaser in effectuating such a
deferred like-kind exchange through the use of such an intermediary including
consenting to an assignment of Purchaser’s rights under this Agreement to an
intermediary. Seller, however, shall have no obligation to locate, contract for
or take title to any property that Seller may wish to transfer or to incur any
indebtedness or other obligation as a part of Seller’s agreement to cooperate.
Purchaser will pay all expenses relating to any such like kind exchange for its
benefit.
16.23 Seller’s
Performance. Notwithstanding anything
to the contrary herein, Purchaser acknowledges and agrees that Seller’s
obligation to perform hereunder shall be contingent upon the Seller acquiring
the Property on or before the date that is 5 business days after the date on
which Purchaser waives (in writing) its right to terminate this Agreement under
Section
3.3
(“Acquisition
Deadline”).
Seller shall use good faith and diligent efforts to acquire the Property on or
before the Acquisition Deadline. If Seller has not acquired the Property by the
Acquisition Deadline, then either party may terminate this Agreement by written
notice (the “Termination
Notice”) to the
other given any time within 2 business days following the Acquisition Deadline.
If neither party exercises its termination right as provided in the preceding
sentence, then the Acquisition Deadline shall be deemed automatically extended
for a period of 5 days and the parties’ termination rights described in the
preceding sentence shall apply to the Acquisition Deadline as such has been
extended in 5-day increments (until either party delivers a Termination Notice).
The foregoing process shall be repeated until such time that Seller acquires the
Property or this Agreement is terminated as provided above.
16.24 Option
to Purchase.
(A) Seller
has been granted the right and, pursuant thereto, hereby grants unto Purchaser
the right to purchase the Option Land (hereinafter defined) pursuant to certain
terms and conditions set forth in an Option Purchase Agreement, which shall be
executed by the parties concurrently herewith.
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(B) At the
Closing, Seller and Purchaser shall execute and record a memorandum evidencing
the existence of the Option (“Memorandum
of Option”), which
Memorandum of Option shall be substantially in the form of Exhibit
“B”.
16.25 Right
of First Refusal. For a
period of two years after the Closing Date and subject to the terms and
conditions described in this Section
16.25, Seller
shall have the right and option, but not the obligation, to purchase Purchaser’s
industrial building (the “Former
Building”)
located at 000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxx of Southaven, Desoto County,
Mississippi. As used herein, the “ROFR Property” shall mean the property
referred to in (i) and (ii) above, the “Offeror” shall mean the owner of the
ROFR Property and “Offeree” shall mean, as applicable, Purchaser or
Seller.
(a) As used
in this Section
16.25, the
term “offer” shall
include, without limitation, any bona fide option proposed by Offeror.
(b) As used
in this Section
16.25, the
term “sold,”
“sell” or
“sale” shall
include a sale or a lease, including all renewal options, or any other
disposition of ROFR Property or any portion thereof, or any interest therein
(any such sale, lease or other disposition shall be referred to as a
“Disposition”).
(c) As used
in this Section
16.25 the term
“Affiliate” shall
mean as to the Person (as hereinafter defined) in question, any Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with the Person in question. As used in
the immediately preceding sentence, “control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, partnership interests, by contract or
otherwise.
(d) As used
in this Section
16.25 the term
“Person” shall
mean any individual, corporation, partnership, joint venture, association, joint
stock company, trust, estate, unincorporated organization, government agency or
political subdivision thereof, or any other form of entity.
(e) Subject
to the terms and conditions set forth below, if Offeror receives a bona fide
offer acceptable to Offeror to buy or makes a bona fide offer acceptable to the
third party purchaser to sell all or any portion of ROFR Property (ROFR Property
being hereinafter referred to as the “Offered
Property”), then
Offeree shall have the right and option, but not the obligation, to purchase
(the term “purchase” shall include a purchase, lease or other acquisition, and
the term “purchaser” shall include a purchaser, lessee or the party making such
other acquisition) the Offered Property (the “First
Refusal Right”) on the
following terms and conditions:
1. If
Offeror receives a bona fide offer acceptable to Offeror to buy or makes a bona
fide offer acceptable to a purchaser to sell all or any portion of ROFR
Property, Offeror shall provide Offeree with a written notice (the “Offeror’s
Notice”) which
shall (i) set forth the true identity of the proposed purchaser (including the
identity of the principals of the purchaser, if known to Offeror), (ii) include
a description of the Offered Property, (iii) include a description of all
material terms of the proposed Disposition (including, without limitation, the
xxxxx, xxxxxxx money and closing date) and (iv) offer to consummate such
Disposition with Offeree upon the same terms and conditions as set forth in the
Offeror’s Notice (except as provided in this Section
16.25). The
Offeror’s Notice shall have attached to it a true, correct and complete copy of
the contract of sale, lease, or other agreement that governs the rights and
obligations of Offeror and the proposed purchaser with respect to the proposed
Disposition (the “Disposition
Document”). Any
time periods in the Offeror’s Notice shall be deemed extended to allow Offeree 3
business days following receipt of the Offeror’s Notice in which to decide
whether to exercise Offeree’s First Refusal Right.
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2. During
the 3 business day period following Offeree’s actual receipt of the Offeror’s
Notice (the “Response
Period”),
Offeree shall have the right, at its expense, to enter onto and conduct tests
and investigations on the Offered Property. Offeree shall be responsible for any
damages or injuries resulting from Offeree’s entry onto the Offered Property and
conducting such tests and inspections. If Offeree does not elect to purchase the
Offered Property by delivering written notice of such election to Offeror within
the Response Period, then Offeror may effect a Disposition of the Offered
Property to the proposed purchaser identified in the Offeror’s Notice (A) at a
price, rental and/or other consideration to be paid by the proposed purchaser
(“Economic
Consideration”) that
is not less than the Economic Consideration that would have been paid by Offeree
if Offeree had elected to purchase the Offered Property pursuant to the
Offeror’s Notice, and (B) upon other terms and conditions that are not more
favorable to the proposed purchaser than those offered to Offeree in the
Offeror’s Notice; provided such closing occurs no later than 90 days after the
expiration of the Response Period; and provided further that if such closing to
the proposed purchaser does not occur within such 90 day period, Offeror shall
again be required to comply with this Section
16.25 before
it makes any other Disposition of ROFR Property. Such Disposition if made in
accordance with this Section
16.25, shall
be made free and clear of the First Refusal Right, and Offeree, at the request
of Offeror, shall execute, in recordable form, a confirmation of the release of
the First Refusal Right insofar as it pertains to the Offered Property that is
so conveyed.
3. If the
First Refusal Right relates to a lease, estate for years or other estate or
interest other than fee simple, and Offeree elects not to exercise its First
Refusal Right with respect to the Offeror’s Notice, then Offeree’s First Refusal
Right shall terminate. If the Offered Property sold to a third party after
compliance with the terms of this Section
16.25 is less
than all of ROFR Property, the First Refusal Right shall remain in full force
and effect for all other portions of ROFR Property.
4. If
Offeree does not elect to accept Offeror’s offer with respect to a Disposition
in accordance with the terms hereof, and such Disposition from Offeror is not
made on the price and terms set forth above (subject to the 90 day closing
period and other terms set forth above), Offeree’s First Refusal Right shall
remain in full force and effect with respect to the Offered
Property.
5. If
Offeree exercises the First Refusal Right by delivering written notice of such
exercise to Offeror within the Response Period, Offeree and Offeror shall enter
into the transaction described in, and upon the terms set forth in, the
Offeror’s Notice and the Disposition Document.
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6. Notwithstanding
any provision contained herein to the contrary, the provisions of this
Section
16.25 shall
not apply to a sale of all or any portion of ROFR Property to an Affiliate of
Offeror; provided, however, the provisions of this Section
16.25 shall
survive such sale to an Affiliate of Offeror, and ROFR Property shall continue
to be subject to the First Refusal Right.
7. Notwithstanding
any provision contained herein to the contrary, in the event: (i) Offeree does
not elect to accept Offeror’s offer, (ii) Offeror sells the Offered Property
pursuant to the terms of this Section
16.25, and
(iii) Offeror retains a lien on the Offered Property and forecloses such lien,
the First Refusal Right shall be automatically reinstated, and Offeror shall not
consummate any further sale of the Offered Property without again complying with
the terms of Section
16.25. Such
lien does not include any lease, except a lease with a term of three (3) years
or less.
(f) The First
Refusal Right shall not apply to any mortgage of ROFR Property or any portion
thereof to secure the repayment of borrowings by Offeror. A foreclosure sale by
such lender shall not be a sale to which the First Refusal Right shall be
applicable, but ROFR Property shall continue to be subject to the First Refusal
Right following such foreclosure sale, and any purchaser at such a foreclosure
sale shall acquire ROFR Property subject to the First Refusal Right. Offeree
shall execute and deliver any instruments reasonably requested by Offeror to
evidence the agreements of Offeree pursuant to this Section
16.25. A
“foreclosure sale” as referenced in this Section
16.25 shall
include a nonjudicial or judicial foreclosure and a conveyance in lieu of
foreclosure.
(g) The
illegality, invalidity or unenforceability of any provision of this Section
16.25 shall
not affect the legality, validity or enforceability of any other provision of
this Section
16.25.
(h) Unless
earlier terminated as provided herein, the rights granted in this Section
16.25 shall
terminate and shall be of no further force or effect 2 years after the Closing
Date.
16.26 Put
Option of Purchaser’s Former Building. Provided
that all the following are satisfied: (1) Purchaser is not in default of any of
the terms, covenants and conditions hereof, (2) there has been no change in the
physical, title, financial or environmental condition of the Former Building
since the Effective Date, (3) Purchaser would not be in default of any provision
of the Building PSA (defined below) had Purchaser and Seller entered such
Building PSA on the Effective Date and (4) Purchaser purchases the Property at
the Closing, then Seller hereby grants to Purchaser the right to elect
to
require Seller, at
anytime between
30 and 180 days following the Closing Date, to purchase (“Put
Option”) the
Former Building for a
purchase price of $16,000,000.00, which purchase and sale shall be consummated
pursuant to the terms of a purchase and sale agreement that is substantially in
the form of Exhibit “C” (the “Building
PSA”). If
Purchaser elects to exercise its Put
Option, then
Purchaser shall provide Seller written notice of such election (the
“Put
Option
Notice”), which
written notice shall include three executed copies of the Building PSA. The Put
Option Notice shall be received by Seller on or before the 60th day
after the Closing Date. If Purchaser timely delivers such Put
Option Notice
(including the three (3) executed original copies of the Building PSA) to
Seller, then
within five (5) days
after Seller’s receipt of the Put
Option Notice,
Seller shall sign the three (3) original copies of the Purchase and Sale
Agreement and return a fully-executed original copy of the Purchase and Sale
Agreement to the Purchaser as well as the title company identified in such
Purchase and Sale Agreement. The date
of closing for Purchaser’s Former Building (“Put
Option Closing Date”) shall
be the later of (i) the date that is 120 days after Seller’s receipt of the Put
Option Notice from Purchaser and (ii) the date that is 30 days after the Closing
Date. In the
event Purchaser fails to timely and completely deliver the Put
Option Notice
and Building PSA to Seller, time
being of the essence with respect to Purchaser’s exercise thereof, then
Purchaser’s Put
Option shall
cease, automatically terminate, be null and void, and be of no further force and
effect, and Purchaser shall have no further rights regarding the Put
Option pursuant
to this Agreement; and,
further, Seller shall not be obligated to purchase the Purchaser’s Former
Building. Additionally, the Put
Option likewise
ceases and automatically terminates in the event of a transfer to or sale of the
Purchaser’s Former Building by any bank, life insurance company, federal or
state savings and loan association, real estate investment trust, or other
institutional lender where title is acquired by said entity, as a result of the
foreclosure of a first in priority mortgage or deed to secure debt encumbering
the Purchaser’s Former Building or a conveyance in lieu of such a foreclosure.
The Put
Option shall
also cease and automatically terminate in the event of a transfer to or sale of
the Purchaser’s Former Building by Purchaser to another purchaser prior to the
Put
Option Closing Date.
Purchaser may lease the Former Building for a term not exceeding the period of
the Put Option without affecting the Put Option. Upon Seller’s receipt of the
Purchaser’s Put
Option Notice
and executed Building PSA, Purchaser hereby grants Seller the following
rights:
Desoto
Trade Center - Eastgate
(a) Seller
shall have the right to begin marketing the Former Building for lease (but not
for sale);
and
(b) Seller
and its
agents, contractors and designees shall have the right to physically inspect and
review the Former Building.
16.27 Disclaimer. PURCHASER
ACKNOWLEDGES THAT EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS
CONTAINED IN THIS AGREEMENT, PURCHASER IS NOT RELYING ON ANY WRITTEN, ORAL,
IMPLIED OR OTHER REPRESENTATIONS, STATEMENTS OR WARRANTIES BY SELLER OR ANY
AGENT OF SELLER OR ANY REAL ESTATE BROKER OR SALESMAN. EXCEPT WITH RESPECT TO
THOSE REPRESENTATIONS, WARRANTIES AND AGREEMENTS CONTAINED IN THIS AGREEMENT,
ALL PREVIOUS WRITTEN, ORAL, IMPLIED OR OTHER STATEMENTS, REPRESENTATIONS,
WARRANTIES OR AGREEMENTS, IF ANY, ARE MERGED HEREIN. SELLER HAS NOT MADE, DOES
NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY WARRANTIES, REPRESENTATIONS, COVENANTS OR
GUARANTEES, EXPRESSED OR IMPLIED, OR ARISING BY OPERATION OF LAW, AS TO THE
MERCHANTABILITY, HABITABILITY, QUANTITY, QUALITY OR ENVIRONMENTAL CONDITION OF
THE PROPERTY OR ITS SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE
EXCEPT TO THE EXTENT THAT SUCH ARE EXPRESSLY STATED IN THIS AGREEMENT. AT
CLOSING AND EXCEPT WITH RESPECT TO THOSE REPRESENTATIONS AND WARRANTIES
EXPRESSLY STATED IN THIS AGREEMENT, PURCHASER SHALL BE DEEMED TO HAVE ACCEPTED
THE PROPERTY IN ITS PRESENT CONDITION ON AN “AS IS”, “WHERE IS” AND “WITH ALL
FAULTS”, INCLUDING ENVIRONMENTAL, BASIS AND, EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT, SHALL BE DEEMED TO HAVE ACKNOWLEDGED AND AGREED THAT (i) WITHOUT
THIS ACCEPTANCE, THIS SALE WOULD NOT BE MADE, (ii) SELLER SHALL BE AND IS UNDER
NO OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIR, ALTERATION, REMEDIATION OR
OTHER WORK OF ANY KIND WITH RESPECT TO ANY PORTION OF THE PROPERTY, (iii) THAT
THE CONSIDERATION PAID BY PURCHASER REFLECTS THE CONDITION OF THE PROPERTY
EXISTING AS OF THE CLOSING DATE, INCLUDING THE PRESENCE OF ANY ENVIRONMENTAL
CONTAMINATION THEREON, AND (iv) PURCHASER'S
USE OR INTENDED USE OF THE PROPERTY MAY BE IMPAIRED BY ITS ENVIRONMENTAL
CONDITION. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, SELLER IS
HEREBY RELEASED BY PURCHASER AND ITS SUCCESSORS AND ASSIGNS OF AND FROM ANY AND
ALL RESPONSIBILITY, LIABILITY, OBLIGATIONS AND CLAIMS, KNOWN OR UNKNOWN,
INCLUDING (1) ANY OBLIGATION TO TAKE THE PROPERTY BACK OR REDUCE THE PRICE, OR
(2) ACTIONS FOR CONTRIBUTION OR INDEMNITY, THAT PURCHASER OR ITS SUCCESSORS AND
ASSIGNS MAY HAVE AGAINST SELLER OR THAT MAY ARISE IN THE FUTURE, BASED IN WHOLE
OR IN PART, UPON THE PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES, MATERIALS, OR
WASTES OR OTHER ACTUAL OR POTENTIAL ENVIRONMENTAL CONTAMINATES ON WITHIN OR
UNDER THE SURFACE OF THE PROPERTY EXCEPT TO THE EXTENT THAT THE PRESENCE OF SUCH
TOXIC OR HAZARDOUS SUBSTANCES, MATERIALS OR WASTE IS EITHER (A) CAUSED TO EXIST
ON THE PROPERTY AS THE RESULT OF ANY ACTS OF SELLER OR SELLER’S AFFILIATES OR
(B) IS WITHIN THE KNOWLEDGE OF SELLER AND IS NOT WITHIN THE KNOWLEDGE OF
PURCHASER AS OF THE CLOSING DATE. PURCHASER FURTHER ACKNOWLEDGES THAT THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY EXPLAINED TO PURCHASER AND THAT
PURCHASER FULLY UNDERSTANDS AND ACCEPTS THE SAME. THE PROVISIONS OF THIS
PARAGRAPH SHALL SURVIVE THE CLOSING. NOTHING IN THIS SECTION
16.27
SHALL BE CONSTRUED TO LIMIT SELLER’S WARRANTIES, REPRESENTATIONS, AGREEMENTS, OR
OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT. TO THE EXTENT THAT THIS
SECTION
16.27
CONFLICTS WITH ANY OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH
ELSEWHERE IN THIS AGREEMENT, THEN THE REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SET FORTH ELSEWHERE IN THIS AGREEMENT SHALL CONTROL.
Desoto
Trade Center - Eastgate
16.28 Exhibits
and Schedules. The following schedules
or exhibits attached hereto (herein sometimes being referred to as "Exhibit")
shall be deemed to be an integral part of this Agreement and are incorporated
herein:
| Volume I | ||
| Exhibit A | Legal Description/Depiction | |
| Schedule 5.1 | List of Preliminary Design Documents | |
| Volume II | ||
| Exhibit B | Memorandum of Option Agreement | |
| Exhibit C | Building PSA | |
| Exhibit D | General Construction Contract [Form] | |
| Exhibit E | Punchlist Escrow Agreement | |
| Exhibit F | Mechanic Lien Escrow Agreement | |
| Exhibit G | Certificate of Substantial Completion | |
| Exhibit H | Special Warranty Deed | |
| Exhibit I | Xxxx of Sale and Blanket Assignment | |
| Exhibit J | FIRPTA Affidavit | |
| Exhibit K | Title Commitment | |
| Exhibit L | Vicinity Map | |
| Exhibit M | Memorandum of Agreement | |
| Exhibit N | Approved CC&R |
Desoto
Trade Center - Eastgate
EXECUTED
by Offeror on the 2nd day of May 2005, to be effective as of the
2nd Day of May 2005.
SELLER:
DTC
EASTGATE 1, LLC,
a
Mississippi limited liability company
By:
DTC Phase
III, LLC,
a
Delaware limited liability company,
its sole
member
By: \S\
Xxxxxx X. Xxxxx III
Xxxxxx X.
Xxxxx III
Executive
Vice President
EXECUTED
by Purchaser on the 28th day of April, 2005, to be
effective as of the 2nd Day of May 2005.
PURCHASER:
Xxxxx of
Xxxx L.P.,
a Texas
limited partnership
By: Xxxxx
of Xxxx Nevada Corporation,
its General Partner
By: \S\ Xxxxxx
X. Xxxxx
Xxxxxx X.
Xxxxx
Chief Executive
Officer and President
Desoto
Trade Center - Eastgate
