EXHIBIT 10.22
COOL SPRINGS BRANCH SITE
REAL ESTATE PURCHASE CONTRACT
DESCRIPTION OF LAND
THIS REAL ESTATE PURCHASE CONTRACT (the "Agreement") is made and
entered into as of the date of the last signature of Seller or Purchaser, as
hereinafter defined, by and between W. Xxxxx Xxxxxx as Authorized Agent for J.
Xxxxx Xxxxxx, Trustee, under that certain Trust Agreement effective as of August
1, 1997 with Highwoods/Forsyth Limited Partnership as beneficiary, as assigned
to Highwoods/Tennessee Holdings, L.P. by Assignment of Beneficial Interest in
Trust dated as of August 1, 1997, with principal offices at 0000 Xxxx Xxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000 (hereinafter referred to as
"Seller") and Pinnacle Financial Partners, Inc., a Tennessee Corporation with
principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx. 00000
(hereinafter referred to as "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
For and in consideration of Ten Dollars ($10.00), the agreements made
herein, and other good and valuable considerations, the receipt and legal
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The Property. Seller hereby agrees to sell and Purchaser
hereby agrees to purchase, upon and subject to the terms and conditions herein
set forth, that certain unimproved tract or parcel of land consisting of
approximately 1.55 acres, more or less, situated in Xxxxxxxxxx County,
Tennessee, and more particularly described as Lot 663 on that Plat of Cool
Springs East Subdivision, Section 16 - Revision 1, of record at Plat Book 27,
page 13A-13D (the "Property"), together with all rights, hereditaments and
appurtenances thereto,
2. Xxxxxxx Money. Within three (3) business days of the mutual
execution of this Agreement (the "Effective Date"), Purchaser shall deposit the
sum of $25,000 as xxxxxxx money (the "Xxxxxxx Money") into an escrow account
with HPI Title Agency, LLC, an agent of Chicago Title Insurance Company at its
main offices at Nashville, Tennessee (hereinafter "Title Company"). The Xxxxxxx
Money shall be non-refundable and shall be credited against the Purchase Price
at Closing or paid to Seller upon the earlier termination of this Agreement,
except in those events expressly and specifically stated and provided for
herein. The Xxxxxxx Money shall be held in an interest-bearing account and paid
over by the Title Company in accordance with the terms and provisions of this
Agreement. All interest earned on the Xxxxxxx Money shall become part of and be
disbursed with the Xxxxxxx Money. In the event Purchaser does not deposit the
Xxxxxxx Money with Title Company within three (3) business days of the mutual
execution of this Agreement, then this Agreement shall automatically terminate
and be of no further force and effect. The taxpayer identification number of
Purchaser is .
3. Purchase Price. The purchase price (the "Purchase Price") for
the Property shall be $876,447.00. The Purchase Price shall be paid by Purchaser
to Seller at Closing by crediting toward the total Purchase Price the amounts
paid as Xxxxxxx Money hereunder and adjustment for prorations as required herein
and making payment of the balance in cash.
4. Closing. The closing of the purchase and sale (the "Closing")
shall be held at the offices of Pinnacle Financial Partners, Inc. in Nashville,
Tennessee, on a date which is on or before fifteen (15) days after the end of
the Inspection Period, as hereinafter defined (the "Closing Date") unless
otherwise mutually agreed by the parties hereto. The Closing Date shall be
designated by Purchaser upon written notice given to Seller not less than five
(5) business days prior to the Closing. At Closing, Title Company shall deliver
to Purchaser a marked title commitment or a pro forma title policy.
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5. Obligations of Seller at Closing. At Closing, Seller shall
satisfy and perform the following:
a. deliver to Purchaser, or Purchaser's designee, a
special warranty deed conveying to Purchaser or its designee title in fee simple
to the Property subject to the Permitted Exceptions (as defined in Paragraph 9,
below);
b. within a reasonable period after Closing, deliver to
Purchaser the Title Policy as provided for in Paragraph 9, below, free and clear
of all exceptions (including the standard printed exceptions) except for the
Permitted Exceptions;
c. deliver to Purchaser a certificate stating that
Seller is not a "foreign person", as defined in the federal Foreign Investment
in Real Property Tax Act of 1980 and the 1984 Tax Reform Act, as amended;
d. make, execute and deliver, or obtain and deliver, all
such affidavits, deeds, certificates, and other instruments and documents, and
shall do or cause to be done all such acts or things which the Title Company
issuing the Title Policy may reasonably request and require in order to remove
the standard printed exceptions for mechanics and materialmen's liens and rights
of parties in possession from the Title Policy;
e. pay all costs and expenses for the Title Policy
(except as provided in paragraph 9), Survey, real estate commissions as provided
in Paragraph 12 below, fees and expenses of Seller's attorney, and all other
costs incurred by Seller or required to be paid by Seller pursuant to any other
provision of this Agreement; and
f. surrender possession of the Property to Purchaser.
6. Obligations of Purchaser at Closing. At Closing, Purchaser
shall satisfy and perform the following:
a. deliver to Seller the balance of the Purchase Price
after deduction of the Xxxxxxx Money and adjustment for prorations as required
herein by a certified or cashier's check drawn on a national bank or by wire
delivery of funds to an account specified by Seller through the Federal Reserve
System; and
b. pay fees and expenses of Purchaser's attorneys,
transfer taxes and recording fees for the recording of the deed, the costs of
any environmental report or other inspections of the Property, if any made by
Purchaser, the cost of any additional endorsements to the Title Policy required
by Purchaser, any mortgagee policy required by Purchaser's lender, and all other
costs and expenses incurred by Purchaser or required to be paid by Purchaser
pursuant to any other provision of this Agreement.
7. Prorations. Purchaser and Seller shall prorate and apportion,
as of the Closing Date, real property ad valorem taxes and all other taxes and
assessments levied or imposed upon, or assessed against, the Property for the
year in which Closing occurs. If the amount of such taxes is undetermined on the
Closing Date, the proration shall be based upon estimated taxes computed by
multiplying the most recent applicable assessment by the most recent applicable
tax rate. In the event the actual amount of such tax differs from any estimated
amounts upon which the proportion is based pursuant to this paragraph, Seller
and Purchaser shall adjust the proration based upon the actual amount of such
taxes promptly upon receipt of the tax bills. Purchaser shall be responsible for
any reassessment of the Property or increase in tax made after Closing,
applicable to any period of time prior to Closing, that are the result of any
improvements made to the Property by Purchaser after Closing. Any rollback taxes
will be the responsibility of Seller. The provisions of this paragraph shall
survive the closing.
8. Property Inspection-Due Diligence.
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a. Purchaser shall have ninety (90) days after the
Effective Date to conduct due diligence inspections, as hereinafter described
(the "Inspection Period"). Upon mutual execution of this Agreement, Purchaser,
Purchaser's agents, employees and independent contractors shall have the right
to come onto the Property for the purpose of making any inspections,
examinations, tests or studies (including soil borings and other invasive tests)
relating to Purchaser's intended use of the Property. Any report, inspection,
examination, test or study shall not interfere with Seller's use of the Property
and shall not violate any law or regulation of any governmental entity having
jurisdiction over the Property. Upon the completion of any inspection,
examination, test or study, if any, Purchaser shall restore the Property to its
former condition. Purchaser agrees to indemnify, defend and hold Seller harmless
from any and all loss and expense (including, without limitation, attorney's
fees) resulting from claims and damages (including, but not limited to, injury
to, or death of persons, loss or damage to property, the performance of any
labor or services for the Purchaser, or the release, escape, discharge,
emission, spillage, seepage or leakage by Purchaser on or from the Property of
any hazardous substance or any other violation by Purchaser of any environmental
law) caused by, arising out of, or incurred in connection with the exercise by
Purchaser of Purchaser's rights under this Paragraph 8. Any provision of this
Agreement to the contrary notwithstanding, the indemnification obligation of
Purchaser under this Paragraph 8 shall survive the closing or any earlier
termination of this Agreement.
b. Within five (5) business days after the Effective
Date, Seller shall make available to Purchaser, its agents and attorneys, for
inspection, review and copy, the most current title insurance policy issued to
Seller with respect to the Property, the most current surveys and/or recorded
subdivision plats with respect to the Property, any environmental, soil,
substrata, landscape, utility and other reports or studies made with respect to
the Property, any and all zoning information related to the Property, and such
other information and documentation with respect to the Property as Purchaser
shall reasonably request (other than appraisals) that Seller has in its
possession and the disclosure of which is not limited by the terms of such
document; provided, however, that the furnishing to Purchaser of such
information or documentation shall in no way be construed as a representation,
warranty or covenant by Seller as to the accuracy, validity, completeness, or
suitability thereof.
9. Title Insurance and Survey; Objections.
a. Survey. On or before thirty (30) days after the
Effective Date Seller shall obtain, at Seller's expense, a current ALTA-ASCM
Land Title Survey of the Property, in accordance with the Minimum Standard
Detail Requirements jointly established and adopted by ALTA and ASCM in 1999,
accompanied by a certificate, in full ALTA-ASCM form of a qualified and
reputable surveyor acceptable to Purchaser and registered under the laws of the
State of Tennessee (the "Survey"). The Survey shall contain such surveyor's
certifications as would be customarily shown on a survey of unimproved real
property in Nashville, Tennessee addressed and certified to Seller, Purchaser,
the Title Company, and Purchaser's lender, if any, and their successors and
assigns. Such Survey shall certify to the nearest 1/100th of an acre the number
of acres included in the Property and shall show, locate, include, and/or
identify: the boundaries of the Property and all corners; a legal description of
the Property; the location of all streets, highways, alleys and public ways
crossing or abutting said Property; all dominant and servient easements
(identified by recording information); all building setback, height, and floor
space area restrictions (per plats. Restrictive covenants or zoning ordinances
and regulations only); and all buildings and structures as are situated thereon
as of said date, if any. The Survey shall further certify that no adjoining
structure encroaches upon the Property or upon any dominant easement appurtenant
thereto; that as of said date there were no visible encroachments, overlaps,
overhangs, easements, improvements, utility lines or rights-of-way on, above or
below the ground, except as shown on the survey plat; and shall certify whether
or not the Property or any part thereof lies within the boundaries of a local,
state or federal flood plain designation. The Survey shall establish the total
square footage located within the Property, the location of all easements and
encroachments and the area of the Property located within any flood hazard area,
and shall certify that all separate parcels comprising the Property, if any, are
contiguous and that the Property contains no gaps, strips or zones between said
parcels. The Survey shall be sufficient in form and content to remove the
standard printed survey exception from the Title Policy to be issued to
Purchaser hereunder. The Seller will comply with the reasonable requirements of
Purchaser's lender, if any, regarding the Survey; provided, however, that the
Purchaser shall be responsible and pay for any additional cost and expense
associated
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therewith. The Property will be conveyed according to the current legal
description of the Property in any vesting deed in favor of Seller, however the
Survey may be used as the basis for the preparation of the legal description of
the Property in a quitclaim deed to be delivered by Seller to Purchaser at
closing at Purchaser's option.
b. Title Insurance. On or before fifteen (15) days after
the Effective Date or as soon as possible thereafter, Seller shall deliver to
Purchaser, at Seller's expense, a title insurance commitment and subsequent
owner's policy issued by the Title Company (the "Commitment"), together with
copies of all documents evidencing any exception referenced therein. The
Commitment shall be for an ALTA Owner's Policy (10-17-92) in the full amount of
the Purchase Price naming Purchaser, or its designee, as insured and committing
to insure the title to the Property and shall provide for simultaneous issue of
a mortgage title policy at the standard simultaneous issue rate up to the amount
of the Purchase Price which Purchaser, at its cost, may provide for its lender
(if any). The Commitment shall provide that the title policy (the "Title
Policy"), when issued, shall have all standard printed exceptions removed and
shall not include any exceptions other than for the Permitted Exceptions as
defined below. Unless otherwise agreed to by Seller, any endorsements shall be
the sole cost, expense and responsibility of Purchaser. Seller shall deliver at
closing all corporate resolutions, incumbency certificates or other
documentation required by the Title Company to issue the Title Policy as herein
contemplated.
For the purposes of this Agreement, the term "Permitted Exceptions"
shall mean: (i) current taxes not yet due and payable; and (ii) such other
matters as may be reasonably acceptable to, or waived or approved in writing by,
Purchaser, including without limitation those accepted in accordance with
Subparagraph 9(c) below.
c. Objections to Title and Survey. Purchaser shall have
ten (10) business days from the date of receipt of the last of each of the
Survey and the Commitment in which to examine the title to the Property, review
the Survey and any other supporting documents and give Seller written notice of
any objections with respect to any matters shown on or by the Survey or the
Commitment which do not constitute Permitted Exceptions. If Purchaser does not
provide such written notice of any title objections within such time period,
then the state of title of the Property as shown by the Survey and the
Commitment shall be deemed to be acceptable to Purchaser and all exceptions
identified on the Commitment shall be deemed Permitted Exceptions.
Upon receipt of notice of any such objections, except for liens which
can be satisfied at Closing from the proceeds of the Purchase Price to be
received by Seller, the Seller shall have ten (10) days after receipt of such
notice to satisfy or cure such objections. If Seller fails or declines to
satisfy the same within such period, the Purchaser, at Purchaser's option as
evidenced by written notice to Seller, may elect to (i) terminate this Agreement
in which event the Xxxxxxx Money shall be refunded to Purchaser, any further
obligations of the parties (except Purchaser's indemnification obligations under
Paragraph 8) shall expire, and this Agreement shall become null and void, or
(ii) waive in writing any such objections and close the purchase of the Property
subject to such objections in which event any such objections shall thereafter
constitute a Permitted Exception under this Agreement. In the event that this
Agreement is terminated for any of the reasons set forth in this Paragraph 9,
the failure of the sale to close shall not constitute an act of default on the
part of either Purchaser or Seller.
10. Environmental Report; Objections. During the Inspection
Period, Purchaser may, at Purchaser's sole cost and expense, obtain a current
Phase I Environmental Site Assessment of the Property (the "Phase I Report").
Within ten (10) business days from the date of receipt of the Phase I Report,
but no later than the end of the Inspection Period, Purchaser shall review the
same and give Seller written notice of any objections with respect to any
matters shown on or by the Phase I Report which, in Purchaser's reasonable
opinion, constitute an adverse environmental condition or would have a material
adverse effect on the marketability of the Property. If Purchaser does not
provide such written notice of any environmental objections within such time
period, then the environmental condition of the Property as shown by the Phase I
Report shall be deemed to be acceptable to Purchaser. Seller shall have ten (10)
days after receipt of such notice to satisfy or cure such objections. If Seller
fails or declines to satisfy the same within such period, the Purchaser, at
Purchaser's option as evidenced by written notice to Seller, may elect
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to (i) terminate this Agreement in which event the Xxxxxxx Money shall be
refunded to Purchaser, any further obligations of the parties (except
Purchaser's indemnification obligation under Paragraph 8) shall expire, and this
Agreement shall become null and void, or (ii) waive in writing any such
objections in which event any such objections shall thereafter be deemed to be
acceptable to Purchaser. In the event that this Agreement is terminated for any
reasons set forth in this Paragraph 10 the failure of this transaction to close
shall not constitute an act of default of either Purchaser or Seller.
11. Soils and Engineering Report. During the Inspection Period,
Purchaser may, at Purchaser's sole cost and expense, conduct such soils,
engineering and site investigations as Purchaser deems appropriate to determine
if surface or surface conditions exist at the Property that would have a
material adverse effect on the development or marketability of the Property. If
Purchaser determines, in its reasonable opinion, that such conditions exist,
Purchaser may elect, prior to the end of the Inspection Period, to terminate
this Agreement by providing written notice thereof to Seller, in which event the
Xxxxxxx Money shall be refunded to Purchaser, any further obligations of the
parties (except Purchaser's indemnification obligation under Paragraph 8) shall
expire, and this Agreement shall become null and void. In the event that this
Agreement is terminated for any reasons set forth in this Paragraph 11, the
failure of this transaction to close shall not constitute an act of default of
either Purchaser of Seller.
12. Commissions. Seller and Purchaser warrant and represent to
each other that they have not employed or dealt with any real estate agent or
broker other than Xxxxx Partners, LLC and Xxxxxxx Real Estate relative to the
sale and purchase of the Property, and each party hereby agrees to indemnify and
hold harmless the other from and against any liability (including costs and
reasonable attorneys fees) incurred in the defense thereof to any other agents
or brokers with whom such party may have dealt except for the agents
specifically named herein. No commission shall be paid if the sale hereunder
does not close for any reason whatsoever. Each agent shall receive a commission
of 3% of the sales price at closing paid by the Seller.
13. Representations and Warranties and Covenants of Seller;
Property Sold "As-Is". Seller warrants and represents and covenants the
following to Purchaser:
a. Seller has good and indefeasible fee simple title to
the Property, subject to the matters to be shown on the Commitment and has the
full and complete right, power and authority to enter into this Agreement and to
convey the Property to Purchaser in accordance with the terms and conditions of
this Agreement;
b. There are no actions, suits or proceedings pending or
threatened against, by or affecting Seller which question the validity of this
Agreement or of any action to be taken by Seller pursuant to or in connection
with this Agreement or otherwise affect the Property, in any court or before any
governmental agency, domestic or foreign, and Seller has not received written
notice thereof;
c. Seller is duly organized and validly existing under
the laws of the State of Tennessee. All proceedings required to be taken on the
part of Seller to authorize Seller to enter into and carry out this Agreement,
and to convey, assign, transfer and deliver the Property, have been duly and
validly taken in compliance with the operating agreement of Seller. This
Agreement constitutes the valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms;
d. Seller has the authority to convey the Property to
Purchaser without the joinder of any other person or entity;
e. On the Closing Date, Seller will not be indebted to
any contractor, laborer, mechanic, materialman, architect or engineer for work,
labor or services performed or rendered, or for materials supplied or furnished,
in connection with the Property for which any person could claim a lien against
the Property.
f. To the best of Seller's knowledge, no portion of the
Property is now used, or has been used, as a garbage or refuse dump site, a
landfill, a waste disposal facility, a transfer station or any
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other type of facility for the storage, processing, treatment or temporary or
permanent disposal of waste materials of any kind; there is no portion of the
Property upon which any hazardous substances or wastes have been, or are being,
used, generated, stored, disposed of, released or found (the term hazardous
substances or waste meaning any substance identified as such in any federal,
state or other statute, ordinance, rule, regulation or other governmental
requirement which by its terms pertains to hazardous substances or waste,
including, without limitation, asbestos and petroleum); and there are no
underground storage tanks of any kind or nature located on the Property; and
g. To the best of Seller's knowledge, the Property is
not in violation of or subject to any existing, pending or threatened
investigation or inquiry by any governmental authority or any response costs or
remedial obligations under any applicable laws pertaining to health or the
environment or hazardous substances as such are defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") as
codified at 42 X.X.X.xx. 9601 et seq. (1982) and the Hazardous Waste Management
Act as codified at X.X.X.xx. 00-00-000 et seq. (herein sometimes collectively
called "Applicable Environmental Laws").
h. To Seller's knowledge, Seller has not received
written notice of any pending condemnation or eminent domain proceedings
affecting the Property or any part thereof.
i. To Seller's knowledge, the Property is not in
violation of any applicable federal, state or local statute, law, or regulation,
including but not limited to zoning laws and Seller has not received written
notice thereof.
Except as otherwise expressly set forth in this Agreement, the Property
shall be sold and conveyed by Seller and accepted by Purchaser in "as is"
condition without any warranty or representation whatsoever on the part of
Seller, express or implied, as to its condition, classification, past or present
use, or merchantability, fitness or suitability for any particular purpose, use,
design, construction or development, including without limitation any warranty
or representation as to surface or subsurface condition, zoning, or the
sufficiency, accessibility and capacity of utilities for Purchaser's intended
use of the Property, it being agreed that all such risks are to be borne by
Purchaser and that Purchaser is relying solely on its own inspection and
investigation of the Property with respect thereto and not on any statement,
representation or warranty made by Seller or anyone acting or claiming to act on
behalf of Seller.
Each representation and warranty of Seller contained in this Agreement
shall be true and accurate as of the date hereof and shall be deemed to have
been made again at and as of Closing and shall be then true and accurate.
14. Representations and Warranties of Purchaser. Purchaser
warrants and represents the following to Seller:
a. Purchaser has the full and complete right, power and
authority to purchase the Property in accordance with the terms and conditions
of this Agreement.
b. There are no actions, suits or proceedings pending or
threatened against, by or affecting Purchaser which question the validity of
this Agreement or of any action by Purchaser pursuant to or in connection with
this Agreement in any court or before any governmental agency, domestic or
foreign.
c. Purchaser is duly organized and validly existing
under the laws of the State of Tennessee. All proceedings required to be taken
on the part of Purchaser to authorize Purchaser to enter into and carry out this
Agreement and to purchase the Property have been duly and validly taken in
compliance with the operating agreement of Purchaser. This Agreement constitutes
the valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
Each representation and warranty of Purchaser contained in this
Agreement shall be true and accurate as of the date hereof and shall be deemed
to have been made again at and as of Closing and shall then be true and accurate
in all material respects.
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15. Damage and Condemnation. Seller shall notify Purchaser
promptly upon the occurrence of any damage, destruction, taking or threat of
taking affecting the Property. In the event of any damage to or destruction of
the Property, or any portion thereof, or in the event of any taking or threat of
taking of the Property, or any portion thereof, by exercise of the power of
eminent domain, Purchaser may elect to: (i) terminate this Agreement by giving
notice thereof to Seller, whereupon the Xxxxxxx Money shall be promptly refunded
to Purchaser, this Agreement shall become null and void and the parties shall be
relieved of and released from any and all further rights, duties, obligations
and liabilities hereunder or (ii) consummate the purchase of the Property,
whereupon at Closing Seller shall pay to Purchaser all insurance proceeds then
received by Seller and all condemnation awards and other payments in connection
with the exercise of the power of eminent domain then received by Seller, and in
addition Seller shall transfer and assign to Purchaser all rights of Seller with
respect to payments by or from and with respect to recovery against any party
whomsoever for damages or compensation on account of such damage, destruction,
taking or threat of taking, and Purchaser shall also receive a credit against
the Purchase Price in an amount equal to the deductible amount of the insurance.
Seller shall provide Purchaser with all information regarding any such damage,
destruction, taking or threat of taking available to Seller and necessary or
useful to Purchaser in making, on a fully informed basis, the election between
such alternatives. Seller shall transfer to Purchaser any and all payments
received by Seller after Closing by or from and with respect to recovery against
any party whomsoever for damages or compensation on account of such damage
destruction, or taking.
16. Default by Purchaser; Seller's Remedies. If the purchase and
sale of the Property is not consummated in accordance with the terms and
conditions of this Agreement due to default or breach on the part of Purchaser,
Seller, at its election, may (i) terminate this Agreement by written notice to
Purchaser, whereupon the Xxxxxxx Money deposited by Purchaser hereunder shall be
paid to Seller as full and complete liquidated damages for the default of
Purchaser, or (ii) avail itself of the remedy of specific performance of this
Agreement. The payment of the Xxxxxxx Money to Seller is not intended as a
penalty, but as full and complete liquidated damages to compensate Seller for
any and all damages suffered by reason of the default by Purchaser. However if
the Purchaser decides not to close for any reason and gives timely written
notice to the Seller prior to the end of the Inspection Period, then the Xxxxxxx
Money shall be refunded to the Purchaser and this Agreement shall be terminated.
17. Default by Seller; Purchaser's Remedies. If Seller fails to
satisfy a condition for Closing which it is obligated to perform or is otherwise
in default or breach under this Agreement, and, as a result, the sale
contemplated hereby does not close within the time specified herein, Purchaser,
at its election, may (i) avail itself of the remedy of specific performance, or
(ii) terminate this Agreement by written notice to Seller, whereupon, the
Xxxxxxx Money shall be refunded to Purchaser and Purchaser may seek monetary
damages for such default in the amount of its out-of-pocket expenditures
including attorneys' fees actually incurred by Purchaser.
18. Assignment. Purchaser may assign or transfer this Agreement,
or any interest of Purchaser hereunder, provided that such assignee shall
execute an agreement, in form and substance satisfactory to Seller pursuant to
which such assignee assumes all of the duties and obligations of the Purchaser
hereunder and further provided that any such assignment shall not relieve
Purchaser of Purchaser's liability for the performance of its duties and
obligations hereunder. Any assignment or purported assignment of this Agreement
by Purchaser in violation of the terms of this Paragraph 18 shall constitute a
default hereunder and, upon the occurrence thereof, Seller, at its option, may
terminate this Agreement upon notice to Purchaser.
19. Successors and Assigns. This Agreement shall be binding upon
and enforceable against, and shall inure to the benefit of, the parties and
their respective legal representatives, successors and permitted assigns.
20. Notices. Any notice, request, demand, tender or other
communication under this Agreement shall be in writing, and shall be deemed to
have been duly given at the time and on the date when personally delivered, upon
being delivered to a nationally recognized commercial courier for next
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day delivery, to the address for each party set forth below, upon delivery if
deposited in the United Stated Mail, Certified Mail, Return Receipt Requested,
with all postage prepaid, to the address for each party set forth above or when
transmitted by facsimile to the telecopy number for each party set forth below.
The time period in which a response must be made, or action taken, by a party
receiving such communication shall commence on the date of actual receipt by
such party. Rejection or other refusal to accept or inability to deliver because
of changed address of which no notice was given shall be deemed to be receipt of
such communication. By giving prior notice to all other parties, any party may
designate a different address for receiving notices.
Notices to Purchaser shall be sent to: Xx. Xxxx Xxxxx
Xxxxx Properties
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
With copy to:
Xx. Xxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
With copy to:
Xxxx Xxxxxxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
Highwoods/Tennessee Holdings, L.P.
Notices to Seller shall be sent to: Attn: Xx. Xxxxx Xxxxxx
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
With a copy to: J. Xxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxxxx PLLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
21. Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Tennessee.
22. Time of Essence. Time shall be of the essence in the
performance of the terms and conditions of this Agreement. In the event any time
period specified in this Agreement expires on a Saturday, Sunday or bank holiday
on which national banks in Nashville, Tennessee are closed for business, then
the time period shall be extended so as to expire on the next business day
immediately succeeding such Saturday, Sunday or bank holiday.
23. Captions. All captions, headings, paragraph and subparagraph
numbers and letters and other reference numbers or letters are solely for the
purpose of facilitating reference to this Agreement and shall not supplement,
limit or otherwise vary in any respect the text of this Agreement. All
references to
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particular paragraphs and subparagraphs by number refer to the
paragraph or subparagraph so numbered in this Agreement.
24. Entire Agreement. This Agreement supersedes all prior
discussions and agreements between Seller and Purchaser with respect to the
purchase and sale of the Property. This Agreement contains the sole and entire
understanding between Seller and Purchaser with respect to the transactions
contemplated by this Agreement, and all promises, inducements, offers,
solicitations, agreements, representations and warranties heretofore made
between the parties are merged into this Agreement. This Agreement shall not be
modified or amended in any respect except by a written agreement executed by or
on behalf of the parties to this Agreement in the same manner as this Agreement
is executed.
25. Survival of Provisions. All of the warranties,
representations, agreements and covenants of the Seller and Purchaser provided
for in this Agreement shall survive the Closing for a period of two (2) years
after the Closing. The indemnification provisions of this Agreement shall
survive both the Closing or any termination of this Agreement for a period of
two (2) years after the earlier of the Closing or any such termination.
26. Number and Gender. As used in this Agreement, the singular
number shall include the plural and the plural shall include the singular, and
the use of any gender shall be applicable to all genders, unless the context
would clearly not admit such construction.
27. Attorney's Fees. In the event of any litigation arising out of
this Agreement, the party prevailing in obtaining the relief sought, in addition
to all other sums that it may be entitled to recover, shall be entitled to
recover from the other party its reasonable attorney's fees and expenses
incurred as a result of such litigation as the court may direct.
28. Further Assurances. Seller and Purchaser each agree to do such
other and further acts and things, and to execute and deliver such other and
further instruments and documents (not creating any obligations, or imposing any
expenses, in addition to those otherwise created or imposed by this Agreement),
as either may reasonably request from time to time, whether before, on, or after
the Closing, in furtherance of the expressed provisions of this Agreement. The
provisions of this Paragraph shall survive the Closing.
29. Purchaser's Participation Rights. If Purchaser does not
terminate this Agreement within the Inspection Period, Seller shall not enter
into any settlement of any condemnation proceeding or eminent domain award
without the prior written consent of Purchaser, not to be unreasonably withheld
and, in respect of Purchaser's equitable interest hereunder, Purchaser shall be
entitled to participate in any and all condemnation, planning, and zoning
matters affecting the Property prior to Closing, in the discretion of Purchaser.
30. Use of Property and Seller's Approval Rights. In addition to
any restrictions on use in any existing matter of record, use of the Property
shall be restricted to a branch banking office or other financial institution.
Furthermore, in addition to any rights of approval in any existing matter of
record, Seller shall have the right to approve the site plan and exterior
materials for the improvements to be constructed by Purchaser or its successors
or assigns on the Property, which approval shall not be unreasonably withheld or
delayed. Seller acknowledges that the exterior appearance of Purchaser's other
existing branch banking locations is acceptable. These restrictions on use of
the Property and right of approval shall be provided in the special warranty
deed conveying the Property from Seller to Purchaser and shall constitute a
Permitted Exception.
31. Seller's Like-Kind Exchange. In the event Seller determines on
or before the Closing Date to transfer the Property in accordance with this
Agreement and in a manner that qualifies for the deferral of recognition of gain
related to the exchange of the Property pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations thereunder
("Seller's Like Kind Exchange"), Purchaser agrees and covenants to fully
cooperate with such transfer. Purchaser agrees and covenants to timely execute
any and all documents, and perform any and all tasks, deemed reasonably
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necessary by Seller to facilitate Seller's Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from any liability incurred solely as a
result of Purchaser's participation in Seller's Like Kind Exchange, exclusive of
any liability that would otherwise be due and payable by Purchaser as a result
of the transactions contemplated by this Agreement. Seller shall reimburse
Purchaser for all reasonable costs and expenses, if any, including reasonable
attorney's fees, incurred solely with respect to Purchaser's participation in
Seller's Like Kind Exchange.
IN WITNESS WHEREOF, the parties have executed and sealed this Real
Estate Purchase Contract, as of the day and year first above written.
PURCHASER:
---------
Pinnacle Financial Partners, Inc.,
a Tennessee corporation
By:
-----------------------------------
Its:
-----------------------------------
Date of Execution:
---------------------
SELLER:
-------
W. Xxxxx Xxxxxx as Authorized Agent for J.
Xxxxx Xxxxxx, Trustee, under that certain
Trust Agreement effective as of August 1,
1997 with Highwoods/Forsyth Limited
Partnership as beneficiary, as assigned to
Highwoods/Tennessee Holdings, L.P. by
Assignment of Beneficial Interest in Trust
dated as of August 1, 1997
Date of Execution: _____________________
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