PURCHASE AND SALE AGREEMENT
EXHIBIT
10.18
THIS
PURCHASE AND SALE AGREEMENT (as amended from time to time, this “Agreement”)
is
entered into as of the 3rd day of April, 2006, by and between COVENANT
TRANSPORT, INC.,
a
Tennessee corporation (“Seller”);
and
CT
CHATTANOOGA TN, LLC,
a
Delaware limited liability company (the “Buyer”).
RECITALS
A. Seller
holds title to the Property (as hereinafter defined).
B. Buyer
desires to purchase the Property (as hereinafter defined) for the price defined
herein, and lease the Property (as hereinafter defined) back to Seller, as
tenant, and upon the terms hereinafter set forth.
Now,
therefore, in consideration of the mutual covenants herein contained and other
good and valuable consideration, the parties, intending to be legally bound,
agree as follows:
1. Sale
of Property.
Seller
agrees to sell the property located in Tennessee identified on Exhibit
A
(the
“Property”)
to
Buyer, and Buyer agrees to purchase from Seller the Property, all on the terms
and conditions set forth herein, including the following rights:
(a) Fee
simple title in and to the parcel of real property (the land constituting such
parcel being the “Land”),
as
more particularly described on Exhibit
A
attached
hereto, together with all easements, rights-of-way, and privileges appurtenant
thereto and all buildings and improvements situated thereon (collectively,
the
“Improvements”
and
such parcel, including the Land and Improvements shall be called the
“Parcel”);
(b) All
right, title and interest of Seller in and to the lighting, electrical,
mechanical, plumbing and heating, ventilation and air conditioning systems
permanently affixed to and used in connection with the Land and the
Improvements, including all elevators, pipings, conduits, ducts, partitions,
boilers, compressors and furnaces, and all other fixtures (the “Fixtures”)
attached or appurtenant to the Land in such a manner as to constitute real
estate under applicable state law; and
(c) Seller’s
copies of all original and supplemental surveys, structural and engineering
reports, geo-technical reports, plans, specifications, operating manuals,
warranties and guarantees covering the Improvements and the Fixtures that are
currently in the possession of Seller, or its subsidiaries; and Seller’s right,
title and interest in all such assignable agreements, and any assignable
licenses or permits relating to the ownership or operation of the Property
(except those required to be maintained by Seller or its subsidiary for the
continued operations of its business at the Property).
2. Price.
The
purchase price to be paid by Buyer to Seller for the Property (the “Purchase
Price”)
shall
be $30,000,000. Subject to the terms and conditions set forth in this Agreement,
the Purchase Price, less any prorations to be credited to Buyer, plus any
prorations to be credited to Seller, shall be paid in immediately available
funds at Closing.
3. Seller’s
Deliveries; Third Party Reports.
Seller
has provided to Buyer the materials listed on Schedule
1
attached
to this Agreement (which, together with all other information and materials
relating to the Parcel that is supplied to Buyer by Seller or any of its
subsidiaries or at Seller’s expense, are hereinafter referred to as the
“Seller
Information”).
Seller has ordered a new owner’s title insurance commitment (the “Commitment”)
in the
name of Buyer from First American Title Insurance Company with respect to the
Property and an updated ALTA as-built survey for the Parcel (the “New
Survey”).
If
the transaction described in this Agreement is not consummated for any reason,
Buyer shall deliver to Seller all Seller Information in Buyer’s possession.
4. Inspection
Period.
Buyer
shall have until, but no later than, the Date of Closing, as defined below
(the
“Inspection
Period”)
to
conduct in regard to the Parcel such tests, feasibility studies, surveys,
inspections and reviews of the due diligence materials provided by Seller as
Buyer chooses to conduct, and to review title, survey and environmental matters.
Buyer shall notify Seller in writing as to the date on which Closing will take
place (the “Date
of Closing”),
which
date shall be no later than April 3, 2006. In the event that Buyer disapproves
of any matters affecting the Parcel in accordance with the terms hereof, and
Seller does not commit to resolve the same to Buyer’s satisfaction, Buyer may
terminate this Agreement by submitting written notice of termination to Seller
on or before the Date of Closing.
5. Closing.
The
closing of the sale of the Property (the “Closing”)
shall
be held, subject to the fulfillment of all conditions to Buyer’ obligations to
close or waiver thereof by Buyer, on the Date of Closing. At Closing, Seller
shall execute and deliver to First American Title Insurance Company,
0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attn: Xxxxx Xxxxxxxxxx (“Escrow
Agent”)
or to
Buyer’ counsel, the following with respect to each Parcel:
(a) A
warranty deed in customary form for the jurisdiction in which such Parcel is
located conveying good and marketable fee simple title to the Land and the
Improvements to Buyer, and, if the related Property includes any personal
property, a xxxx of sale and assignment conveying good and marketable title
to
all such personal property, in each case free and clear of all liens, charges,
encumbrances, easements, covenants and restrictions except for (i) unpaid taxes
not yet due and payable, (ii) matters shown on the surveys provided to Buyer,
unless Buyer has objected thereto as set forth in this Agreement, and (iii)
matters of record, unless Buyer has objected thereto as set forth in this
Agreement;
(b) copies
of
all surveys, plans, specifications, structural and engineering reports, manuals,
warranties and guarantees described in paragraph
1(c)
to the
extent in Seller’s, or Seller’s subsidiary’s, possession;
(c) A
fully
executed original counterpart of a lease substantially in the form attached
hereto as Exhibit
B
(the
“Lease”)
and a
memorandum of lease in recordable form, and a lease guaranty in the form
attached hereto as Exhibit
C
(the
“Lease
Guaranty”),
duly
executed by Seller’s parent, Covenant Transport, Inc., a Nevada corporation (the
“Lease
Guarantor”);
2
(d) An
affidavit stating that Seller is not a “foreign person” within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986;
(e) Any
customary affidavits reasonably required by the title insurance company to
issue
its title policy(ies) to Buyer;
(f) All
other
documents affecting title to and possession of the Property and necessary to
transfer or assign the same to Buyer, free and clear of all liens, security
interests, charges and encumbrances, except the Permitted Exceptions (as defined
in Paragraph
9);
(g) A
copy of
a resolution for Seller authorizing the sale and leaseback of the Property
in
accordance with the terms of this Agreement, and further authorizing the
execution of all closing documents and the performance of all other acts
necessary to close the sale and leaseback of the Property in accordance with
the
terms of this Agreement, and a copy of a resolution of Lease Guarantor
authorizing the execution, delivery and performance of the Lease
Guaranty;
(h) A
secretary’s certificate relating to incumbency and organizational documents for
Seller and Lease Guarantor;
(i) A
copy of
the certificate of occupancy or legal equivalent thereof for the
Parcel;
(j) Insurance
certificates as required under the Lease for the Parcel;
(k) An
opinion of counsel for Seller and Lease Guarantor covering such matters as
Buyer
may reasonably request; and
(l) Other
documents and certificates reasonably requested by Buyer.
In
addition, Buyer’s obligation hereunder to purchase the Property shall be
conditioned on the receipt by Buyer of the following, each of which shall be
in
form and substance satisfactory to Buyer:
(a) An
appraisal for the Parcel that meets the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 and which shows that
the fair market value of the Parcel is not less than the Purchase Price
therefor, plus any transaction costs funded by Buyer;
(b) A
Phase I
Environmental Assessment for the Parcel and, if recommended in such Phase I
Environmental Assessment, a Phase II Environmental Assessment by an
environmental services firm satisfactory to Buyer; and
(c) A
property condition report for the Parcel conducted by an engineering firm
satisfactory to Buyer.
3
At
Closing, Buyer shall execute and/or deliver to Seller (i) an original of the
Lease and the memorandum of Lease, (ii) a transfer tax declaration (or similar
instruments as may be required by law), (iii) the Purchase Price for such
Parcel, and (iv) any other document or instrument reasonably required by
Seller.
Seller
shall pay 100% of the cost of all recordation, transfer and intangible taxes
imposed on the warranty deed for the Property and the Lease and the cost of
recording any title curative documents, including, without limitation,
satisfactions of deeds to secure debt, mortgages and deeds of trust, and
financing statement terminations. At Closing, Seller shall pay for (i) Buyer’s
owner’s title insurance premium (including all endorsements requested by Buyer
that are legally available in the related jurisdiction) for the policy issued
pursuant to the Commitment, and title search costs, (ii) the cost of the New
Survey, (iii) the cost of the environmental audits, the appraisal and the
property condition report conducted on behalf of Buyer for the Parcel, (iv)
all
costs and fees of the Escrow Agent, and (v) Seller’s legal expenses. Buyer shall
be responsible for its own legal expenses incurred in connection with the
Closing. The Closing and delivery of all such documents shall take place as
shall be mutually agreeable to the parties. Seller agrees to deliver possession
of the Parcel to Buyer on the Date of Closing, subject only to rights of Seller,
as tenant, under the Lease.
6. Lease.
The
Parcel shall be leased to Seller under a net lease in form substantially
identical to that attached hereto as Exhibit
B.
7. Termination.
If
Closing does not occur on or before the Date of Closing, time being of the
essence, and (i) all of the conditions precedent to Buyer’ obligation to close
set forth in this Agreement have been satisfied and (ii) Seller is not in breach
of any of its obligations to Buyer contained in this Agreement, Seller may
terminate this Agreement upon written notice to Buyer.
8. Income
and Expenses of the Property.
Through
the Date of Closing, Seller shall pay when due any payments of principal and
interest secured by any liens or encumbrances on the Property. Seller shall
be
responsible for all expenses of the Property, and shall be entitled to all
income from the Property, attributable to the period prior to Closing. Seller
agrees that all expenses related to the Property or otherwise accrued for the
period prior to the Date of Closing shall be paid in full by Seller when
due.
Seller
shall indemnify, defend and hold Buyer harmless from and against any costs,
expenses, penalties or damages, including reasonable attorneys’ fees, resulting
from any failure by Seller to timely pay or cause to be paid any of the items
described in this paragraph
8
that are
attributable to the period on or before the Date of Closing.
9. Title
Examination; Title Defects.
The
matters listed on Schedule
2
attached
hereto are “Permitted
Exceptions.”
From
the date of this Agreement (the “Effective
Date”)
Seller
shall not consent to, or permit to exist, any encumbrances, easements or other
restrictions to be placed on or granted with respect to the Parcel, other than
any matters consented to by Buyer in writing and the Permitted Exceptions,
without the prior written consent of Buyer (such encumbrances prohibited hereby
being “Seller
Encumbrances”).
4
The
title
exceptions set forth in the Commitment for the Parcel shall reflect only the
Permitted Exceptions and any title matters consented to in writing by Buyer.
The
Commitment shall include such endorsements as may be reasonably requested by
Buyer and that are available in the applicable jurisdiction. Seller shall have
obtained the commitment of the title company to insure the so-called “gap
period” at Closing. Seller shall be responsible for satisfying all the
requirements of the Commitment on or before the Date of Closing.
At
any
time before Closing, Buyer may notify Seller of any Seller Encumbrance or other
additional title matter affecting the Parcel that Buyer is purchasing that
is
not a Permitted Exception or any matter shown on the survey of the Parcel,
in
each case that is not acceptable to Buyer (such being a "Title
Defect").
Seller
shall have up to ten (10) business days after receipt of such notice to cure
such Title Defect or to provide evidence reasonably satisfactory to Buyer that
such Title Defect will be cured or "insured over" at Closing, or to provide
notice to Buyer that Seller will not cure such Title Defect. If requested by
Seller, the Closing shall be extended for up to ten (10) business days in order
to permit Seller sufficient time to remove such Title Defect. If Seller fails
or
refuses to cure such Title Defect or to provide such evidence within the cure
period described above, then Buyer may terminate this Agreement upon written
notice to Seller of its election to so terminate.
10. Environmental
Defects; Property Condition Defects.
In the
event that Buyer discovers any contamination or pollution on the Parcel or
any
violation of any environmental law, or any noncompliance by Seller or its
affiliates with any recommendations set out in the environmental audits
conducted on behalf of Buyer by an environmental firm selected by Buyer (the
“Environmental
Reports”),
or
any other condition or circumstance not acceptable to Buyer with respect to
the
environmental condition of the Parcel (each such defect or item of noncompliance
being an "Environmental
Defect"),
then
Buyer may terminate this Agreement upon written notice to Seller of its election
to so terminate. In the event that Buyer discovers any deferred maintenance
or
other unsatisfactory condition with respect to the Parcel (each such item,
a
“Condition
Defect”),
Buyer
may notify Seller thereof and Seller shall have up to ten (10) business days
after receipt of such notice to cure such Condition Defect or to provide
evidence reasonably satisfactory to Buyer that such Condition Defect will be
cured in a time frame and in a manner reasonably satisfactory to Buyer, or
to
provide notice to Buyer that Seller will not cure such Condition Defect. If
requested by Seller, the Closing shall be extended for up to ten (10) business
days in order to permit Seller sufficient time to cure such Condition Defect.
If
Seller fails or refuses to cure such Condition Defect or to provide such
evidence within the cure period described above, then Buyer may terminate this
Agreement upon written notice to Seller of its election to so terminate.
11. Inspections.
Buyer
and its representatives shall have the right from and after the Effective Date
to enter upon the Property during Seller’s normal business hours for the purpose
of conducting such inspections, tests and investigations of the Property as
it
may desire. Notwithstanding the foregoing, Buyer (a) shall not unreasonably
interfere with, interrupt or disrupt the operation of Seller’s business on the
Property, (b) shall not cause any construction, mechanic’s or materialman’s
liens or other liens to attach to the Property or any portion thereof by reason
of the performance of any work or the purchase of any materials by Buyer or
any
other party in connection with the studies or tests conducted on the Property,
(c) shall give Seller not less than 24 hours notice prior to entry onto the
Property by Buyer (unless such notice is waived by Seller) or any other
party directed by Buyer and shall
permit Seller to have a representative present during all investigations and
inspections conducted with respect to the Property, and (d) shall take all
reasonable actions to ensure that all actions taken in connection with the
investigations and inspections of the Property, and all equipment, materials
and
substances generated, used or brought onto the Property pose no threat to the
safety of persons or the environment and cause no material damage to the
Property, Seller or other persons. Buyer agrees to indemnify and hold Seller
harmless from and against any liens, claims, actions, charges, damages, expenses
(including, without limitation, reasonable attorneys’ fees and court costs) and
liabilities incurred through, and agrees to make any repairs to the Property
arising out of damage resulting from (and Seller agrees to provide Buyer and
its
agent, contractors and representative access to the Property to make such
repairs), the exercise by Buyer and its agents, contractors, or representatives,
of the privilege granted in this paragraph, except to the extent attributable
to
Seller’s, or Seller’s affiliate’s, gross negligence or willful misconduct.
Seller agrees to promptly notify Buyer of any such claim or potential claim,
and
agrees that Buyer shall have the right to control the defense of any such claim.
The obligations under this paragraph
11
shall
survive termination of this Agreement.
5
12. Broker’s/Advisor’s
Fees.
Seller
represents and warrants to Buyer, and Buyer represents and warrants to Seller,
that no brokers' or real estate commissions or similar fees will be due as
a
result of Seller’s or Buyer’s, as the case may be, retention of, or obligation
to, any broker or agent in connection with Closing the sale of the Property.
Each party agrees to indemnify the other against any cost and expense (including
reasonable attorneys' fees) incurred by the other as a result of the
untruthfulness or inaccuracy of the foregoing representation.
13. Representations,
Warranties by Seller.
Seller
represents to Buyer that:
(a) Seller
has all requisite power and authority to execute this Agreement, the Lease,
the
Closing Documents listed in paragraph
5
and all
other documents required to be delivered by Seller, and to assume and perform
all of its obligations under this Agreement, the Lease and such Closing
Documents. The execution of this Agreement and the Lease by Seller, and the
performance by Seller of its obligations hereunder and thereunder, do not
require the consent of any third party, including any governmental
authority.
(b) The
execution and delivery of this Agreement and the Lease, and the performance
by
Seller of its obligations hereunder and thereunder, have been duly authorized
by
such corporate action as may be required, and the execution and delivery of
this
Agreement and the Lease, and the sale and leaseback of the Property do not
and
will not violate, or create a lien pursuant to, the organizational documents
of
Seller, any judgment, order, agreement, indenture or contract to which Seller
is
a party, or any law, ordinance, rule or regulation applicable to Seller, or
by
which Seller is bound. Upon execution by Seller, this Agreement, the Lease
and
the other documents and agreements to be executed by Seller in connection with
the transactions contemplated by this Agreement, shall constitute the legal,
valid and binding obligations of Seller, enforceable against Seller in
accordance with their respective terms, subject to general equitable principles
and to applicable bankruptcy, insolvency, reorganization and similar laws
affecting the enforcement of creditors’ rights generally.
(c) Seller
is
a corporation duly organized, validly existing and in good standing under the
laws of Tennessee. Seller has full power and authority to own, sell and lease
the Property and enter into this Agreement and the Lease.
6
(d) There
will be no leasing commissions payable with respect to the Lease.
(e) There
shall be no service, maintenance, property management, leasing or other
contracts affecting the Property in existence as of the Date of Closing to
which
either Buyer or the Property shall be bound or be subject after the Closing,
except for those that have been disclosed in writing by Seller to Buyer and
(i)
which will be the obligations of Seller, as tenant under the Lease (and not
obligations of Buyer), and (ii) which are terminable by Buyer without penalty
or
cost on no more than thirty (30) days’ notice. Neither Seller nor the Property
is subject to any obligation or agreement, including any right of first refusal,
which could prevent Seller from completing the sale of the Property to Buyer
under this Agreement.
(f) There
is
no action, suit, proceeding, litigation, administrative agency action,
condemnation proceeding or proceeding of any kind pending or, to Seller’s
knowledge, threatened against Seller affecting or questioning Seller’s title to,
right to sell or use, maintenance or operation of the Property, including any
requests for public dedication, nor does Seller know of any basis for any such
action. Seller has received no written notice from any governmental agency
of
any violation by Seller of any law, rule or regulation with respect to Seller’s
ownership, use, occupancy maintenance or operation of the Property.
(g) To
Seller’s knowledge, (1) the Property does not contain any “Hazardous Materials”
(as defined below) in violation of any applicable “Environmental Laws” (as
defined below), (2) the Property is not subject to federal, state or local
regulations or liability because of the presence of stored, leaked, spilled
or
disposed petroleum products, waste materials or debris, underground storage
tanks, “PCBs” or PCB items (as defined in 40 C.F.R. §761.3), “asbestos” (as
defined in 40 C.F.R. §763.63), or the past or present accumulation, treatment,
storage, disposal, spillage or leakage of any Hazardous Materials; (3) no
portion of the Land has been used for the disposal of Hazardous Materials nor
have any wetlands or tidal waters, as those terms are defined in 33 C.F.R.
§328.3 been filled in violation of any Environmental Laws; and (4) no Hazardous
Materials have been generated, treated, stored, recycled, transported, released,
discharged, emitted, disposed of or otherwise handled at, on or under the
Property except in de minimis quantities stored, used and disposed of in
accordance with applicable Environmental Laws. Seller further represents to
Buyer that the Property shall be maintained in the condition represented above
through the Date of Closing. As used in this paragraph
14(g),
the
term “Hazardous
Materials”
shall
mean any contaminant, oil, petroleum or petroleum by-product, asbestos or
asbestos-related products, hazardous wastes, hazardous substances, hazardous
materials, toxic substances, hazardous air pollutants or toxic pollutants,
as
those terms are defined in Environmental Laws; the term “Environmental
Laws”
shall
mean the Resource Conservation and Recovery Act (42 U.S.C.A. §§6901 et
seq.),
the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42
U.S.C.A. §§9601 et
seq.),
the
Hazardous Materials Transportation Act (42 U.S.C.A. §§1801 et
seq.),
the
Toxic Substances Control Act (15 U.S.C.A. §§2601 et
seq.),
the
Clean Air Act (42 U.S.C.A. §§7401 et
seq.),
and
the Clean Water Act (33 U.S.C.A. §§1251 et
seq.),
any
amendments thereto, and any regulations promulgated pursuant thereto, and any
other federal, state or local laws dealing with the environment, health or
safety related to the environment or any other state or local law, regulation
or
ordinance relating to the foregoing matters.
7
(h) All
buildings and improvements on the Land constituting a portion of the Property
fully conform with all applicable zoning ordinances and regulations (as modified
by any “special exceptions” or “special use permits” or the like), building,
health, fire and safety codes and restrictions and other laws, ordinances,
rules
and regulations except to a de minimis extent not materially and adversely
affecting the use, occupancy, maintenance, ownership, marketability, operation,
value or mortgageability of the Property, and are located entirely within the
boundaries of the Land.
(i) No
assessments or charges for any public improvements have been made against the
Property which remain unpaid, except as may be shown in the title commitment
for
the Property, and Seller has no knowledge of any plans for improvements which
might give rise to a special assessment.
Seller
hereby agrees that the truthfulness of each of the foregoing representations
is
a condition precedent to the performance by Buyer of its obligations under
this
Agreement. Upon the material breach by Seller of any representation made in
this
Agreement or the failure to occur of any condition to Buyer’s obligation to
Close, and if Seller has failed to cure such breach or condition within ten
(10)
business days of receipt of written notice of such breach or condition from
Buyer, Buyer may, at its option prior to the Date of Closing, terminate this
Agreement.
15. Representations,
Warranties by Buyer.
Buyer
represents to Seller that Buyer has all requisite power and authority to execute
this Agreement and the Lease, that the execution and delivery of this Agreement
and the Lease, and the performance by Buyer of its obligations hereunder and
thereunder have been duly authorized by such action as may be required, that
no
further action or approval is required in order to constitute this Agreement
as
a binding and enforceable obligation of Buyer, and that Buyer is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware.
16. Defaults.
Upon
the breach by Seller of any of the representations contained in this Agreement,
or the default by Seller in the performance of any other obligation of Seller
set forth in this Agreement, and, in each case, Seller has failed to cure such
breach or default within ten (10) business days after written notice from Buyer,
Buyer may exercise all remedies available to it, including any or all of the
following: (a) Buyer may terminate this Agreement by delivery of written notice
to Seller; and (b) Buyer may institute proceedings in any court of competent
jurisdiction to specifically enforce the performance by Seller of the terms
of
this Agreement. In addition, Seller shall be responsible for the payment of,
or
reimbursement of Buyer for, all reasonable costs and expenses incurred by Buyer
in connection with the transaction contemplated by this Agreement, including
all
reasonable legal fees and expenses, and all costs for the New Survey, the
environmental audits of the Parcel, the appraisal and the property condition
report for the Parcel.
If
Buyer
defaults in the performance of any of its obligations under this Agreement,
Seller shall be entitled to receive and retain from Buyer copies of all surveys,
inspections, evaluations and other reports on the Property prepared by or for
Buyer and neither party shall have any other claim against the other.
8
17. Damage,
Destruction and Eminent Domain.
(a) If,
prior
to the Date of Closing, the Parcel or any part thereof is damaged or destroyed
by fire, the elements or any other destructive force or cause to the extent
that
repairing such damage or destruction is reasonably estimated to cost Two Hundred
Fifty Thousand and 00/100 Dollars ($250,000.00) or more, then, within a
reasonable time of any such damage or destruction, Seller shall give a written
notice to Buyer specifying the insurance carrier's estimate of the amount of
insurance payable as the result of such damage or destruction. Within ten (10)
business days after Buyer has received the written notice described in the
preceding sentence, Buyer may elect to terminate this Agreement by delivery
of
written notice to Seller. If Buyer elects to consummate the purchase despite
the
damage or destruction, or if any lesser damage or destruction has occurred,
there shall be no reduction in or abatement of the Purchase Price, and the
parties shall treat such casualty damage as having occurred during the term
of
the Lease.
(b) If,
prior
to the Date of Closing any judicial, administrative, or other condemnation
proceedings are instituted or threatened in which a taking of the Parcel is
proposed that exceeds Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) in
value,
including any consequential damages to the Parcel, then within a reasonable
time
of receipt by it or notice of the institution of any judicial, administrative,
or other condemnation proceedings involving the Parcel, Seller shall give a
written notice to Buyer. Within ten (10) business days after Buyer has received
the written notice described in the preceding sentence, Buyer may elect to
terminate this Agreement, by delivery of written notice to Seller. If Buyer
elects to consummate the purchase despite the institution of condemnation
proceedings, or if it appears that the value of the proposed taking, including
any consequential damages to the Property, shall total less than Two Hundred
Fifty Thousand and 00/100 Dollars ($250,000.00), there
shall be no reduction in or abatement of the Purchase Price, and the parties
shall treat such condemnation as having occurred during the term of the
Lease.
18. Assignment.
Buyer
may not assign this Agreement without prior written consent of Seller, except
that Buyer may assign this Agreement to SunTrust Equity Funding, LLC, or a
wholly owned subsidiary of, or other entity controlled by, SunTrust Equity
Funding, LLC.
19. Notices.
Any
notice, demand, communication or election required or permitted to be given
or
served upon either party shall be deemed given or served in accordance with
the
provisions of this Agreement, if the notice or election is delivered by (i)
facsimile which shall be deemed received if a confirmation is received by the
sender during normal business hours, (otherwise deemed to be received during
the
next business day), (ii) overnight air courier, or (iii) personal delivery
to or
by mailing the notice or election in a sealed wrapper by United States
registered or certified mail, return receipt requested, postage prepaid,
properly addressed as follows:
If
to Buyer:
|
c/o
SunTrust Equity Funding, LLC
|
||
000
Xxxxxxxxx Xxxxxx, 00xx
Floor
|
|||
Mail
Code 3951
|
|||
Xxxxxxx,
XX 00000
|
|||
Attention:
Xxxxxxx XxXxxx
|
|||
Facsimile:
000-000-0000
|
9
With
a copy to:
|
Xxxxxxxxx
Traurig, LLP
|
||
00
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
|
|||
Xxxxxxx,
XX 00000
|
|||
Attention:
Xxxxx Xxxxxx
|
|||
Facsimile:
000-000-0000
|
|||
If
to Seller:
|
Covenant
Transport, Inc.
|
||
000
Xxxxxxxxxx Xxxxxxx
|
|||
Xxxxxxxxxxx,
XX 00000
|
|||
Attention:
Xxxx X. Xxxxx
|
|||
Facsimile:
000-000-0000
|
|||
With
a copy to:
|
Xxxxxxx
Law Firm, P.C., L.L.O.
|
||
000
X. 00xx
Xxxxxx
|
|||
Xxxxxxx,
XX 00000
|
|||
Attention:
Xxxx Xxxxxxx
|
|||
Facsimile:
000-000-0000
|
Each
such
mailed notice or communication shall be deemed to have been given to or served
upon the party to which addressed within three business days after the date
the
notice is deposited in the United States registered or certified mail, return
receipt requested, postage prepaid, properly addressed in the manner provided
above. Each such delivered notice or communication shall be deemed to have
been
given to or served upon the party to whom delivered, upon the delivery thereof
in the manner provided above. Either party may change its address for the
service of notice by delivering written notice of the change to the other party,
in the manner provided above at least five (5) business days prior to the
effective date of the change.
20. Time
of the Essence.
Time
shall be of the essence in the performance of all obligations under this
Agreement. If the time period by which any right, option or election provided
under this Agreement must be exercised, or by which any act required under
this
Agreement must be performed, or by which Closing must be held, expires on a
Saturday, Sunday or a holiday, then such time period shall be automatically
extended to the next business day, except as otherwise provided
herein.
21. Captions.
The
paragraph headings or captions appearing in this Agreement are for convenience
only, are not a part of this Agreement and are not to be considered in
interpreting this Agreement.
22. Entire
Agreement, Modification.
This
Agreement and its Exhibits constitute the entire and complete agreement between
the parties and supersedes any prior oral or written agreements between the
parties with respect to the Property. It is expressly agreed that there are
no
verbal understandings or agreements which in any way change the terms, covenants
and conditions set forth in this Agreement, and that no modification of this
Agreement and no waiver of any of its terms and conditions shall be effective
unless it is made in writing and duly executed by both parties
hereto.
10
23. Binding
Effect.
All
covenants, agreements and provisions of this Agreement shall be binding upon
and
inure to the benefit of the parties and their respective successors and
permitted assigns.
24. Controlling
Law.
This
Agreement has been made and entered into under the laws of the State of
Tennessee, and those laws shall control the interpretation of this Agreement.
25. Counterpart
and Facsimile.
This
Agreement may be executed and delivered with the exchange by facsimile or
overnight air courier of separate signature pages.
26. Waiver
of Jury Trial.
SELLER
AND BUYER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL UNDER THE LAWS
OF
THE STATE OF TENNESSEE OR OTHERWISE OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS AMONG BUYER OR SELLER RELATING TO THE SUBJECT MATTER
OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG BUYER AND SELLER. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS,
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
THE
COURT.
11
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the day and
year
first above written.
SELLER:
|
||
COVENANT
TRANSPORT, INC., a
Tennessee corporation
|
||
By:
|
/s/ Xxxx X. Xxxxx | |
Name:
|
Xxxx X. Xxxxx | |
Title:
|
EVP/CFO |
S-1
BUYER:
|
||
CT
CHATTANOOGA TN, LLC,
a
Delaware limited liability company
|
||
By:
|
SunTrust
Equity Funding, LLC, its manager
|
|
By:
|
/s/ R. Xxxx Xxxxxxx | |
Name:
|
R. Xxxx Xxxxxxx
|
|
Title:
|
Senior Vice President and Manager
|
X-0