EXHIBIT 99.3
FACILITIES USE AND PURCHASE OPTION AGREEMENT
(Broad Street Property Agreement)
BETWEEN
XXXXX STEEL CONTRACTORS, INC.
AND
XXXXXXXX TANKS ALLIANCE, LLC
AUGUST 31, 1999
FACILITIES USE AND PURCHASE OPTION AGREEMENT
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(Broad Street Property Agreement)
THIS FACILITIES USE AND PURCHASE OPTION AGREEMENT ("Agreement") is made and
entered into as of this 31st day of August, 1999, by and between (i) Xxxxx Steel
Contractors, Inc., a Georgia corporation ("Xxxxx"), and (ii) Xxxxxxxx Tanks
Alliance, llc, a Georgia limited liability company ("Xxxxxxxx") (collectively,
the Parties").
Recitals:
X. Xxxxx, certain of its Affiliates, Xxxxxxxx and Xxxxxxxx Tanks, Inc.
are parties to an Amended and Restated Stock Purchase Agreement and Conversion
to Asset Purchase Agreement dated as of August 31, 1999 (the "Purchase
Agreement"), pursuant to which, among other transactions, Xxxxx agreed to sell
to Xxxxxxxx at the Closing certain Assets of Xxxxx, upon and subject to the
terms and conditions set forth in the Purchase Agreement.
B. It was a condition to the Closing and the obligations of Xxxxxxxx and
Xxxxxxxx Tanks, Inc. under the Purchase Agreement and the other Ancillary
Documents contemplated therein that Xxxxx enter into this Agreement with
Xxxxxxxx.
C. This Agreement is the Broad Street Property Agreement contemplated in
the Purchase Agreement, and capitalized terms used but not defined herein shall
have their same respective meanings as in the Purchase Agreement.
Agreement:
Now, Therefore, in consideration of the premises, the payment by Xxxxxxxx
to Xxxxx of the sum of Ten Dollars ($10.00), and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Parties agree as
follows:
1. Option to Purchase Broad Street Property.
(a) Option. Xxxxx hereby grants and conveys to Xxxxxxxx (and/or to
any Person(s) designated in writing by Xxxxxxxx) an exclusive and irrevocable
(except as otherwise provided in Section 3) right and option to purchase all of
Xxxxx'x rights, title and interests under, in and to the real property of Xxxxx
located in Coweta County, Georgia at 00 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxx
00000, as more particularly described on Exhibit A attached hereto and made a
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part hereof, including without limitation (i) any buildings, improvements,
structures, fixtures, shrubs, trees, plants and appurtenances situated thereon
or thereunder, any mineral rights in respect thereof, and any water rights and
other rights appurtenant to that real property, and (ii) all easements and
hereditaments appertaining to that real property, including all rights, title
and interest of Xxxxx (if any) in and to the streets, alleys, ways, easements
and rights-of-way abutting or adjoining that real property (collectively, the
"Broad Street Property"), free and clear of all Encumbrances other than
Permitted Encumbrances, and upon and subject to the terms and conditions set
forth in this Agreement (the "Option"). The Option may be exercised by Xxxxxxxx
(or its designee), in its discretion, at any time during the period commencing
on the date hereof and expiring on the third (3rd) anniversary of the date
hereof (the "Option Period"), upon delivery of written notice of exercise to
Xxxxx during the Option Period in accordance with Section 12.12 of the Purchase
Agreement (the "Exercise Notice"). Xxxxxxxx shall be obligated to exercise the
Option to the extent required under Section 6.17 of the Purchase Agreement, but
not otherwise. Should Xxxxxxxx (or its designee) exercise the Option, this
Agreement shall thereupon constitute a binding agreement of sale between Xxxxx,
on the one hand, and Xxxxxxxx and such designee, on the other hand, with respect
to the Broad Street Property.
(b) Option Purchase Price.
(i) Upon the exercise of the Option by Xxxxxxxx or its designee,
the aggregate purchase price ("Purchase Price") payable by Xxxxxxxx (or
such designee) to Xxxxx for the Broad Street Property shall be the sum of
One Million Seven Hundred Forty Thousand Dollars ($1,740,000), without
interest or other adjustment (except for any accrued and unpaid User Fees
(as hereinafter defined)), which shall be payable by Xxxxxxxx or such
designee in
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immediately available funds at the "Closing" of the purchase as
contemplated below. The obligation to pay the Purchase Price shall be joint
and several as between Xxxxxxxx and any designee thereof.
(ii) Xxxxx shall be entitled to no other compensation or
benefits from Xxxxxxxx or its designee (if any) in the event Xxxxxxxx or
such designee shall fail or refuse for any reason to exercise the Option;
provided, that the foregoing shall not release Xxxxxxxx or Xxxxxxxx Tanks
of or from any liability arising out of their breach of Section 6.17 of the
Purchase Agreement by reason of the failure or refusal by Xxxxxxxx or its
designee to exercise the Option during the Option Period as required
thereunder.
(c) Closing. Upon the exercise of the Option, the closing of the
purchase and sale of the Broad Street Property hereunder (the "Closing") shall
occur on the thirtieth (30th) day following the delivery by Xxxxxxxx (or its
designee) to Xxxxx of the Exercise Notice described above; provided, that in the
event the 30th day following such notice falls on a Saturday or Sunday, the
Closing shall occur on the Monday next following that 30th day. The Closing
shall occur at the offices of Xxxxxxxxxx Xxxx & XxXxxxxx PLLC in Louisville,
Kentucky at 10:00 a.m. local time on the appointed date. Notwithstanding the
foregoing, the Parties may agree upon a different date, time and/or place for
the Closing, provided such agreement is in writing. At the Closing, Xxxxx shall
deliver absolute possession of the Broad Street Property to Xxxxxxxx or its
designee (if any).
(d) Investigation. From the date hereof through the expiration or
earlier termination of this Agreement, Xxxxx shall afford to the Representatives
of Xxxxxxxx (and its designee, if any) complete access to the Broad Street
Property and the records of Xxxxx (including computer files, retrieval programs
and similar documentation and such access and information that may be necessary
in connection with an environmental audit) to the extent Xxxxxxxx shall xxxx
necessary or desirable, and shall furnish to Xxxxxxxx, its designee and their
authorized Representatives such additional information concerning the Broad
Street Property as shall be reasonably requested, including all such information
as shall be reasonably necessary or appropriate to enable Xxxxxxxx, its designee
and their Representatives to verify the accuracy of the representations and
warranties contained in this Agreement or the Purchase Agreement, and to verify
that the covenants of Xxxxx contained in this
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Agreement and the Purchase Agreement have been complied with. Xxxxxxxx agrees
that such investigation shall be conducted in such a manner as will not
interfere unreasonably with the operations of Xxxxx. No investigation made by
Xxxxxxxx, its designee or their Representatives hereunder shall affect the
representations and warranties of Xxxxx made in this Agreement or in the
Purchase Agreement.
(e) Title Insurance. Xxxxx will obtain, at its cost and expense, and
deliver to Xxxxxxxx within ten (10) days after the date of delivery of an
Exercise Notice, a commitment to issue the following title insurance with
respect to the Broad Street Property, meeting the following requirements, at the
Closing:
(i) Commitment. With respect to each parcel of real estate
included in the Broad Street Property (each, a "Parcel"), a commitment to
issue an ALTA Owner's Policy of Title Insurance (Form 10/17/92 or its
nearest equivalent if a Parcel is located in a jurisdiction in which Form
10/17/92 is not available) (each a "Commitment"), which Commitment(s) shall
be issued by a title insurer reasonably satisfactory to Xxxxxxxx,
committing to insure the interest of Xxxxxxxx (and its relevant
designee(s)) in each Parcel for an amount equal to the Purchase Price.
(ii) State of Title. Within ten (10) days after the receipt by
Xxxxxxxx of a Commitment for a Parcel, Xxxxxxxx shall notify Xxxxx of any
exceptions to title contained in that Commitment which Xxxxxxxx (or its
designee) finds, in its reasonable discretion, to be unacceptable to
Xxxxxxxx (or such designee). Thereafter, Xxxxx shall within five (5) days
notify Xxxxxxxx of its intention to take such action as may be necessary to
remove the exceptions objected to from the Commitment, and an endorsement
to that Commitment shall be issued at least two (2) days prior to the
Closing deleting the exceptions so objected to from that Commitment. All
exceptions to title or survey issues as to each Parcel as to which Xxxxxxxx
(and its designee) shall not object (or shall subsequently withdraw its
objection) shall be deemed to be "Permitted Exceptions."
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(iii) Further Commitment Requirements. In addition to the
matters set forth in (i) and (ii) above, each Commitment shall further
commit (A) to insure title to all recorded easements benefitting that
Parcel, (B) to issue an ALTA Endorsement 3.1 (or equivalent) as to that
Parcel, and (C) to issue a standard "non-imputation" endorsement.
(iv) Title at Closing. At the Closing, the state of title to
each Parcel shall be such that the title company issuing the Commitment for
that Parcel shall be prepared to and shall issue a title policy on the form
mandated by Subsection (e)(i) above, insuring the interest of Xxxxxxxx (and
its relevant designee) in that Parcel as a valid fee simple interest, (A)
subject only to the Permitted Exceptions, (B) having deleted therefrom the
standard exceptions for parties in possession, survey, rights of way and
easements not of record and mechanics and materialmans liens, (C) insuring
that the Parcel as described in the policy is the same property as is
described in the Survey for that Parcel identified on Exhibit A attached
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hereto, (D) insuring the contiguity of the Parcel if the Parcel consists of
more than one tract or lot, and (E) insuring direct and unencumbered
pedestrian and vehicular access to the Parcel from each street or roadway
adjacent to the Parcel. In the event the actual state of title to each
Parcel is not as described above, the Closing regarding that Parcel shall
not occur absent the prior written consent of Xxxxxxxx.
(f) Further Assurances. Each of the Parties hereto shall, at any
time following an exercise of the Option by Xxxxxxxx (or its designee), and from
time to time, either before or after the Closing, upon the request of the
appropriate Party, do, obtain, execute, acknowledge and deliver, or will cause
to be done, obtained, executed, acknowledged and delivered, all such further
acts, consents, assignments, transfers, conveyances, and assurances as may be
reasonably required to complete the transactions contemplated in this Section 1.
(g) Permits. The Parties agree to reasonably cooperate with and
assist each other, at their respective cost and expense, upon an exercise of the
Option to effect the transfer or assignment to Xxxxxxxx (or its designee) of any
existing Governmental Authorizations of Xxxxx relating to or required for the
operation of the Broad Street Property (to the extent not previously transferred
or assigned to Xxxxxxxx as contemplated in the Purchase Agreement), and agree to
file
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any notices, requests, applications and the like with all relevant Governmental
Bodies in connection with those Government Authorizations (or their assignment
or transfer), including without limitation, any notices of the change in control
and ownership of the Broad Street Property required under applicable Legal
Requirements for the continued use, maintenance and effectiveness of such
Governmental Authorizations by Xxxxxxxx (or its designee).
(h) No Assumption of Obligations. Xxxxxxxx and its designee (if any)
shall not, by reason of any exercise of the Option, any purchase of the Broad
Street Property or otherwise, be deemed to have assumed or to in any manner have
become responsible or liable for, and Xxxxx agrees that it shall retain, pay,
perform and discharge in full, any and all debts, obligations and liabilities of
Xxxxx of any nature, whether or not relating to the Broad Street Property, and
whether known or unknown, accrued or unaccrued, fixed, absolute, contingent or
otherwise, including without limitation, any liabilities relating to any
Contamination as contemplated in Section 6.17 of the Purchase Agreement;
provided, that the foregoing provisions of this Section 1(h) shall not, and are
not intended to, (x) eliminate, reduce or diminish (i) the agreement of Xxxxxxxx
to pay, perform and discharge the Assumed Obligations, or (ii) the agreement of
Xxxxxxxx to indemnify the Xxxxx Indemnitees as provided in Section 2(f) of this
Agreement, or (y) except to the extent the same are Retained Obligations,
obligate Xxxxx with respect to any matter arising after the Closing under this
Agreement (other than for the performance of Xxxxx'x covenants expressly set
forth herein).
(i) Representations and Warranties. At the Closing, and upon
delivery of the Deed contemplated in Section (j), below, Xxxxx shall be deemed
to have once again made to Xxxxxxxx (and its designee, if any) as of that date
each of the representations and warranties of Xxxxx set forth in the following
Sections of the Purchase Agreement (limited to this Agreement or the Broad
Street Property where the context requires): 4.1, 4.7(g) (except for such
casualties, damages, destruction of losses that have been cured and remain cured
as of the Closing), 4.7(n), 4.7(p) (except for such disposals consisting of land
or of any part of the building or of any other property having a value,
individually or in the aggregate, of not more than $50,000), 4.7(u) (subject to
the qualification that any material adverse effect on the business referred to
therein is to the business of Xxxxxxxx), 4.10, 4.16 (but only to the extent that
the matters referred to therein are not the subject of the Environmental Work
Plan or the remediation activities of Xxxxx referred to in Section 6.17 of the
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Purchase Agreement), 4.24 and 4.33; provided, that Xxxxx shall have no
responsibility or liability to Xxxxxxxx (or its designee) to the extent those
representations and warranties (or any of them) prove to be inaccurate in any
respect as of the Closing by reason of any actions or omissions on the part of
Xxxxxxxx or the Xxxxxxxx Group (as hereinafter defined), other than Matrix and
its Affiliates, occurring following the date hereof and prior to the Closing, or
by reason of any matter as to which the Xxxxx Indemnitees are entitled to
indemnification as provided in Section 2(f) hereof.
(j) Delivery of Deed. At the Closing, Xxxxx agrees to deliver to
Xxxxxxxx (or its designee) a Deed of Special Warranty in form reasonably
satisfactory to Xxxxxxxx (the "Deed"), conveying good and marketable fee simple
title to the Broad Street Property to Xxxxxxxx (and/or such designee, as
applicable), free and clear of all Encumbrances other than Permitted
Encumbrances. Xxxxx shall be obligated to pay all transfer Taxes due and owing
in respect of the Deed, and Xxxxxxxx shall be obligated to cause the Deed to be
recorded and to pay the recording costs thereof. Xxxxxxxx (and its designee)
hereby waive any breach of the warranties contained in the Deed except to the
extent the same also constitute a breach of any of the representations and
warranties to be made by Xxxxx as of the Closing as contemplated in Section 1(i)
of this Agreement and except to the extent the same are also Retained
Obligations.
(k) Sales Taxes, Etc. Notwithstanding anything contained in this
Agreement, the Purchase Agreement or any other Ancillary Document to the
contrary, Xxxxx shall be solely responsible for, and agrees to pay and discharge
when due, any and all sales, use, transfer and other similar Taxes that may at
any time be assessed against any of the Parties or Xxxxxxxx'x designee by reason
of the sale of the Broad Street Property contemplated herein, or otherwise by
reason of the consummation of the transactions contemplated in this Agreement.
(l) Status of Title to Property; Compliance. From the date hereof
through the Closing (or any earlier expiration or termination of the Option as
contemplated in Section 3), Xxxxx agrees not to grant or permit any Encumbrances
(other than Permitted Encumbrances) against or on the Broad Street Property, not
to transfer or convey (whether voluntarily or involuntarily) Xxxxx'x fee simple
interest (or any portion thereof) in the Broad Street Property, and not to grant
or create any leasehold interest or other similar interest in or regarding the
Broad Street Property, in any case
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without the prior written consent of Xxxxxxxx. Furthermore, Xxxxx agrees to
comply with each and every covenant and restriction of record and affecting the
Broad Street Property.
2. Use of Certain Facilities.
(a) Grant of Right and License. Xxxxx hereby grants to Xxxxxxxx, for
itself and its suppliers, customers, Affiliates, Representatives and other
invitees (collectively, the "Xxxxxxxx Group"):
(i) an exclusive and irrevocable (except as contemplated in
Section 3) right and license, commencing on the date hereof and continuing
until the third (3rd) anniversary of such date (or until an earlier
termination of this right and license as contemplated in Section 3), to use
and maintain, from time-to-time, for any lawful purpose or purposes, any
and all building(s), facilities, fixtures and other improvements now or
hereafter located on or appurtenant to the Broad Street Property
(collectively, the "Facilities"), including without limitation, to use
those Facilities for the fabrication of steel plate and piping in support
of the elevated water tank businesses of Xxxxxxxx and its Affiliates in the
same manner as was conducted by Xxxxx or its Affiliates prior to the date
hereof; and
(ii) full right of access to, and ingress and egress over, the
Broad Street Property throughout that three-year period, to the extent
necessary for the full use and enjoyment by Xxxxxxxx (and such other
Persons) of the Facilities in accordance with this Section 2.
Xxxxx agrees that it will not grant to any other Person (other than Xxxxxxxx and
such other Persons described above) any right to utilize any of the Facilities
throughout the term of this Agreement (and will not use those Facilities for
Xxxxx'x own account), and further agrees that it will not cause or permit any of
Xxxxx'x Representatives or any other Persons to enter onto the Broad Street
Property for any reason other than (A) to ensure compliance by Xxxxxxxx with the
provisions of this Agreement, (B) to undertake the Contamination remediation
efforts contemplated in Section 6.17 of the Purchase Agreement, or (C) to
address or remediate any other Environmental, Health and
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Safety Liabilities or any violation of Environmental Laws in compliance with
those laws or the provisions of the Environmental Work Plan, or (D) to enable
Xxxxx to comply with the terms and provisions of this Agreement, including
without limitation the provisions of Section 1(i) hereof (and then only to the
extent their entrance or presence on the Broad Street Property will not
unreasonably interfere with Xxxxxxxx'x use, enjoyment and maintenance of the
same). Xxxxx shall be solely responsible for, and shall defend, indemnify and
hold harmless Xxxxxxxx and its Affiliates and Representatives from and against,
any and all Damages that they may suffer or incur by reason of the entrance or
presence of those Representatives on the Broad Street Property, but only to the
extent not caused by the negligence or wilful misconduct of the Xxxxxxxx Group
(other than Matrix and its Affiliates). Xxxxx agrees that the rights granted to
Xxxxxxxx as contemplated herein shall continue in force and effect following the
third (3rd) anniversary of the date hereof until the Closing pursuant to any
exercise by Xxxxxxxx of the Option in accordance with Section 1. Notwithstanding
anything contained herein to the contrary, Xxxxxxxx shall not use the Facilities
in any manner that would cause or result in a breach by Xxxxxxxx or Xxxxxxxx
Tanks of any of their covenants or agreements set forth in the Non-Competition
Agreement. Xxxxxxxx shall be entitled, throughout the term of this Agreement,
and to the maximum extent permissible under applicable Legal Requirements, to
rely upon, and to use and maintain the buildings, facilities, fixtures and other
improvements on the Broad Street Property pursuant to, all Governmental
Authorizations of Xxxxx relating to that property.
(b) Payments by Xxxxxxxx.
(i) In consideration of the right and license granted to it as
contemplated above, Xxxxxxxx agrees to pay to Xxxxx, each month during the
Term of that right and license (prorated for partial months), a user fee of
$10,875, without escalation or adjustment at any time hereafter (the "User
Fee"). The User Fee for a particular month shall become due and payable to
Xxxxx on the fifth (5th) day of the month immediately following the month
for which due, and shall be paid in immediately available funds. Upon the
expiration or any earlier termination of the right and license (and related
access rights) granted to Xxxxxxxx pursuant to this Section 2, Xxxxx shall
be entitled to receive the User Fee prorated through the date of expiration
or termination, but shall be entitled to no other compensation or benefits
in exchange for the right and license (and those access rights) granted to
Xxxxxxxx.
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(ii) Xxxxxxxx shall also pay or reimburse Xxxxx for all taxes
and similar impositions which may be levied, assessed or imposed upon the
Broad Street Property accruing or becoming due and payable during the term
of this Agreement, provided that any such taxes shall be prorated between
Xxxxx and Xxxxxxxx as of the date of this Agreement for the first year and
as of the expiration date of this Agreement for the last year. Xxxxxxxx
shall not be required to pay any tax, assessment, tax lien or other
imposition or charge upon or against the Broad Street Property, or any part
thereof, or the improvements situated thereon, so long as Xxxxxxxx shall,
in good faith and with due diligence, contest the same or the validity
thereof by appropriate legal proceeding which shall have the effect of
preventing the collection of the tax, assessment, tax lien or other
imposition or charge so contested.
(iii) During the term of this Agreement, Xxxxxxxx shall procure
and maintain policies of insurance, at its own cost and expense, insuring
the following:
(a) The improvements situated upon the Broad Street
Property against loss or damage by fire, lightning, wind storm, hail
storm, aircraft, vehicles, smoke, explosion, riot or civil commotion
as provided by the standard fire and extended coverage policy and all
other risks of direct physical loss as insured against under special
extended coverage endorsement. The insurance coverage shall be for
not less than $2,750,000 with all proceeds of insurance payable to
Xxxxxxxx, subject to the obligation of Xxxxxxxx provided in Section
2(g) below.
(b) Xxxxx, the Matrix Indemnitees and Xxxxxxxx from all
claims, demands or actions for injury to or death of any person in an
amount of not less than Two Million Dollars ($2,000,000) for injury to
death of more than one person in any one occurrence to the limit of
One Million Dollars ($1,000,000), and for damage to property in an
amount of not less than Seven Hundred Fifty Thousand Dollars
($750,000) made by or on behalf of, any person or persons, firm or
corporation arising from, related to or connected with the Broad
Street Property.
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Such insurance shall be with companies and in form, substance and
amount (where not stated above) satisfactory to Xxxxx.
(iv) Xxxxxxxx shall pay the cost of all utilities and service to
the property, including gas, water, sewer and electricity, incurred during
the term of this Agreement.
(c) Maintenance of Facilities; Limited Scope. Throughout the term of
the right and license granted to it pursuant to this Section 2, Xxxxxxxx shall,
at its expense, maintain the Facilities used by it in good working condition and
repair, ordinary wear and tear excepted (but subject to the obligations of
Xxxxx, GSAC and Matrix under the Purchase Agreement and the other Ancillary
Documents with respect to the Retained Obligations and any misrepresentation(s)
or breach(es) of warranty by Xxxxx, GSAC or Matrix with respect to the
Facilities or the condition thereof). Subject to those obligations on the part
of Xxxxx, GSAC and Matrix, Xxxxxxxx shall be solely responsible for any Damages
that it or its Affiliates or Representatives may suffer or incur resulting from
or arising out of their use of or access to any of the Facilities pursuant to
that right and license. The Parties acknowledge that neither Xxxxxxxx nor any
of its Affiliates are, by reason of the right and license granted in this
Section 2 or otherwise, acquiring any interests (whether leasehold or otherwise)
in the fee simple title held by Xxxxx in the Broad Street Property on the date
hereof, nor are Xxxxxxxx or any of its Affiliates undertaking any responsibility
(whether to Xxxxx, its Affiliates or any other Persons) for the Contamination or
any other conditions at, affecting or relating to the Broad Street Property as
of the date hereof, for any future consequences of those conditions, or for any
resulting Environmental, Health and Safety Liabilities or violations of
applicable Legal Requirements, it being expressly understood and agreed that all
such responsibility shall remain a Retained Obligation from and after the date
hereof unless and to the extent any related Damages are the result of any
actions or inaction (where they had a duty or obligation to act) of the Xxxxxxxx
Group (other than Matrix or any of its Affiliates).
(d) Additions to Facilities. During the term of its right and
license under this Section 2, Xxxxxxxx shall be entitled, at its expense, to
construct on the Broad Street Property, and to install on or in connection with
the Facilities, such enhancements and improvements thereto as Xxxxxxxx shall
determine and as shall not materially damage or otherwise materially adversely
affect
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the use or value of the Facilities (including without limitation, the new or
modified paint booth facilities contemplated in the Environmental Work Plan),
provided such enhancements and/or improvements otherwise comply with all
applicable Legal Requirements. Upon their construction or installation, all such
enhancements and improvements shall constitute part of the Broad Street Property
for all purposes, shall be the property of Xxxxx, and shall become subject to
the Option; provided, that upon the exercise of the Option Xxxxxxxx (or its
designee) shall not be obligated to pay any additional amounts above the
Purchase Price to purchase those enhancements and/or improvements. In the event
the right and license provided for in this Section 2 shall expire or be
terminated as contemplated in Section 3, and thereafter the Option shall expire
in accordance with its terms prior to any exercise of the same by Xxxxxxxx or
its designee, then Xxxxxxxx shall be deemed to have abandoned all such
enhancements and improvements, and the same shall remain the property of Xxxxx.
(e) Cooperation. Xxxxxxxx and Xxxxx agree to reasonably cooperate
with each other and their Representatives in order to permit Xxxxx to undertake
and satisfy the matters referred to in clauses (A) through (D) of Section 2(a)
hereof, while at the same time minimizing the adverse effects of such activities
by Xxxxx on the business and operations of Xxxxxxxx on the Broad Street
Property.
(f) Xxxxxxxx Indemnity. Xxxxxxxx hereby agrees to indemnify Xxxxx
and its Affiliates for any Damages they may suffer by reason of (i) the use or
occupancy by Xxxxxxxx of the Broad Street Property during the term of this
Agreement, including any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Broad Street Property or any part
thereof or the adjoining properties, sidewalks, curbs, streets or ways; (ii) any
failure on the part of Xxxxxxxx to perform or comply with any of the terms of
this Agreement; or (iii) the performance of any labor or services or the
furnishing of any materials or other property in respect of the Broad Street
Property or any part thereof (other than the performance of labor or services or
the furnishing of any materials or other property (A) pursuant to the
Fabrication Services Agreement or any other agreement between Matrix or any of
its Affiliates and Xxxxxxxx or any of its Affiliates, or (B) pursuant to the
Orion Contract); except, in each case, to the extent the same (y) is a Retained
Obligation or is a breach or misrepresentation of any covenant, agreement,
representation or
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warranty of Xxxxx, Matrix or GSAC in this Agreement, the Purchase Agreement or
any other Ancillary Document, or (z) results from or arises out of any actions
or inaction (where they had a duty or obligation to act) of Xxxxx, Matrix, GSAC
or any of their Representatives; provided that the foregoing indemnification
obligation of Xxxxxxxx shall apply to accidents, injuries or deaths of Xxxxx'x
or its Affiliates' Representatives, and to damages to Xxxxx'x or its Affiliates'
property, in either case while located on the Broad Street Property only to the
extent resulting from or arising out of the negligence or willful misconduct of
Xxxxxxxx, its Affiliates or its or their Representatives.
(g) Repair. In the event of damage to, or destruction of, any
improvements on the Broad Street Property, or of the fixtures and equipment
therein, during the term of this Agreement by fire or other casualty, Xxxxxxxx
shall promptly, at its expense, repair, restore or rebuild the same to the
extent that it shall deem necessary or desirable in connection with the
requirements of its business, provided that, upon the completion of such
repairs, restoration or rebuilding, the value and rental value of the
improvements upon the Broad Street Property shall be substantially equal to the
value and rental of the improvements thereon immediately prior to the happening
of such fire or other casualty.
(h) Condemnation. If the whole of the Broad Street Property, or so
much thereof, including a portion of the improvements, shall be taken or
condemned for a public use and as a result thereof the balance of the Broad
Street Property cannot be used for the purposes intended by this Agreement,
then, at the option of Xxxxxxxx: (i) this Agreement shall terminate when
possession of the Broad Street Property shall be so taken and surrendered, and
any award, compensation or damages (hereinafter sometimes called the "award"),
shall be paid to and be the sole property of Xxxxx, whether such award shall be
made as compensation for diminution of the value of the license granted hereby
or the fee of the Broad Street Property or otherwise, and Xxxxxxxx hereby
assigns to Xxxxx all of Xxxxxxxx'x right, title and interest in and to any and
all such award; or (ii) Xxxxxxxx (or its designee) may exercise the Option,
purchase the Broad Street Property from Xxxxx as contemplated above, and retain
the entire award of such condemnation for the sole account of Xxxxxxxx (or its
designee). Xxxxxxxx shall continue to pay the amounts required under this
Agreement until the term is so terminated or the Broad Street Property is so
purchased from Xxxxx.
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(i) Certain Actions Prohibited. Xxxxxxxx shall not, without Xxxxx'x
prior written consent, sublicense the Broad Street Property or any part thereof,
or permit the use or occupancy of the Broad Street Property or any part thereof
by anyone other than Xxxxxxxx or its Affiliates and Representatives. Xxxxx
agrees that it will not unreasonably withhold its consent.
3. Termination. This Agreement shall continue in force and effect from
and after the date hereof through the third (3rd) anniversary of such date
unless terminated earlier (in whole or in part) in the manner provided for in
this Section 3, but may not be terminated by the Parties in any other manner or
for any other reason.
(a) Termination by Xxxxxxxx. Xxxxxxxx shall be entitled, at its
option, to either: (i) terminate this Agreement in its entirety; or (ii)
terminate the right and license (and related access rights) and other provisions
of Section 2 of this Agreement, without terminating the remainder of this
Agreement (including without limitation, the Option); in the event: (A) Xxxxxxxx
shall determine, in good faith, that such termination is necessary in order to
reduce or mitigate its risk of responsibility for any Environmental, Health and
Safety Liabilities at or associated with the Broad Street Property or the use or
occupancy thereof; or (B) Xxxxxxxx shall determine, in good faith, that Xxxxx,
GSAC and Matrix shall not cause the Broad Street Property to achieve the
"Remediation Levels" contemplated in Section 6.17 of the Purchase Agreement
prior to the third (3rd) anniversary of the Closing Date; or (C) Xxxxx shall
breach or default under any covenant or agreement of Xxxxx contained in this
Agreement, and such breach or default shall remain uncured for a period of
thirty (30) days after written notice thereof to Xxxxx. A termination by
Xxxxxxxx as contemplated in (A) or (B) above shall be effected upon delivery by
Xxxxxxxx to Xxxxx of thirty (30) days prior written notice of termination, and a
termination by Xxxxxxxx as contemplated in (C) above shall be effected upon
delivery by Xxxxxxxx to Xxxxx of written notice of termination. Upon any
termination of this Agreement as contemplated above, Xxxxxxxx shall vacate the
Broad Street Property and return possession of the same to Xxxxx within ten (10)
days after the effective date of termination, subject, in the case of a
termination pursuant to subclause (ii) above, to Xxxxxxxx'x (or its designee's)
right to later acquire the Broad Street Property pursuant to the Option.
Notwithstanding any termination pursuant to subclause (ii), above, Xxxxxxxx
shall continue to thereafter pay Xxxxx the User Fee throughout the remaining
term of this Agreement.
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(b) Termination by Xxxxx. Xxxxx shall be entitled to terminate this
Agreement in its entirety in the event Xxxxxxxx shall fail at any time to pay
the User Fee to Xxxxx by the due date therefor, and such payment default is not
cured by Xxxxxxxx within ten (10) days following its receipt of notice thereof
from Xxxxx. Xxxxx shall not be entitled to terminate this Agreement, in whole
or in part, by reason of any other breach or default by Xxxxxxxx under this
Agreement or for any other reason, it being understood and agreed that Xxxxx'x
sole recourse in the event of such other breach or default shall be to seek
specific performance of Xxxxxxxx'x obligations hereunder, the recovery of
Damages from Xxxxxxxx for such breach or default, and indemnification from
Xxxxxxxx and Xxxxxxxx Tanks as contemplated in the Purchase Agreement.
(c) Termination upon Purchase. This Agreement shall terminate in its
entirety without further action on the part of either Party, immediately upon
the purchase by Xxxxxxxx (or its designee) of the Broad Street Property from
Xxxxx (or its successors or permitted assigns), whether pursuant to the Option
or otherwise.
(d) Termination by Mutual Agreement. This Agreement may also be
terminated, in whole or in part, by the mutual written agreement of the Parties.
(e) Effect of Expiration or Termination. No expiration or earlier
termination of this Agreement, in whole or in part, as contemplated above shall
be deemed to release any Party of or from responsibility for any breach or
default by that Party occurring prior to the expiration or termination, or for
any rights of indemnity provided under this Agreement, which responsibility
shall continue thereafter until discharged in full.
4. Remedies. In the event (a) either Party shall fail to fully perform
or comply with any of its respective covenants, agreements or other obligations
hereunder, including, but not limited to, Xxxxx'x obligations to execute and
deliver the Deed as contemplated in Section 1(j), or (b) any representation or
warranty made (or deemed to be made) by Xxxxx herein shall prove to have been
untrue as of the Closing, or (c) any petition in bankruptcy or other similar
petition shall be filed by or against Xxxxx, or (d) any assignment or
composition for the benefit of creditors shall be made or entered into by Xxxxx,
or (e) any judgment or proceeding is entered or brought against Xxxxx
-15-
or the Broad Street Property to foreclose any Encumbrance on the Broad Street
Property or any portion thereof, then the other Party may, in its sole
discretion, pursue any and all remedies that may be available to it at law, in
equity, by contract or otherwise, including without limitation, initiating an
action to compel specific performance of this Agreement by the non-performing
Party, to recover Damages for breach, and/or to exercise its termination rights
(if any) provided for in Section 3, all of which remedies shall be cumulative to
the maximum extent permissible under applicable Legal Requirements.
5. Brokers' Commissions. Each Party hereby represents and warrants to
the other that no real estate commission, broker's fee or other similar fee or
commission is now or shall at any time be due with respect to this Agreement or
in connection with the Option or any sale or purchase of the Broad Street
Property. If any claims for such fees are made against either of the Parties in
connection with this transaction, all such claims shall be handled and paid by
the Party whose actions or alleged commitments formed the basis of such claim,
and such Party further agrees to indemnify and hold harmless the other Party
from and against any and all such claims or demands.
6. Entry Upon Property. From the date hereof through the Closing (or any
earlier expiration of the Option), Xxxxxxxx, its designee (if any) and their
Representatives shall have the right to enter upon the Broad Street Property
from time to time, and the right of ingress and egress over, through and from
the Broad Street Property, for the purpose of inspecting, testing, making
surveys, conducting soil and environmental tests, and making such other
reasonable observations and inspections of the Broad Street Property as are
deemed necessary or appropriate by Xxxxxxxx, in addition to the other use and
access rights granted to Xxxxxxxx pursuant to Section 2.
7. Entire Agreement. This Agreement and the Purchase Agreement
constitute the entire agreement and understanding between the Parties hereto
with respect to the subject matter hereof and supersedes all prior agreements,
whether oral or written, pertaining to their subject matter. This Agreement
(and the provisions hereof) may be amended, modified or waived only by a written
instrument signed by each Party or, in the case of a waiver, by the waiving
Party.
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8. Binding Effect; Assignments. This Agreement shall be binding upon and
inure to the benefit of each of the Parties hereto and their respective
successors and permitted assigns. This Agreement and the rights and interests
of Xxxxxxxx hereunder may be assigned or transferred, in whole or in part, by
Xxxxxxxx to any of its Affiliates without the prior consent of Xxxxx; provided
that no such assignment or transfer shall release Xxxxxxxx from its obligations
hereunder.
9. Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Georgia, without regard to its conflicts of laws rules.
10. Time of the Essence. Time is of the essence in the performance of
this Agreement.
11. Recording. Xxxxx agrees that Xxxxxxxx Tanks shall be entitled, at
its expense, to record one or more originals or copies of this Agreement with
such Governmental Bodies as Xxxxxxxx shall deem appropriate to protect its
rights and interests granted hereby. The Parties agree to execute such
amendments to this Agreement as shall be required so that the same shall be in
form suitable for such recording, to the extent not already in recordable form.
12. Rights Run With Land. The Parties acknowledge and agree that the
rights and interests granted to Xxxxxxxx under or pursuant to this Agreement,
including without limitation, the Option and the use and access rights granted
pursuant to Section 2, shall "run with the Broad Street Property," and shall be
binding on any voluntary or involuntary successor, transferee, or assignee of
Xxxxx'x interests in the Broad Street Property (or any of those interests) for
all purposes.
13. Defense of Third Party Actions. Xxxxx agrees that it shall, at its
expense, use its best efforts to defend the rights and interests granted to
Xxxxxxxx pursuant to this Agreement against any and all actions by third-Persons
seeking to challenge those rights or any rights or interests of Xxxxx in or to
the Broad Street Property.
IN TESTIMONY WHEREOF, witness the signatures of Xxxxx and Xxxxxxxx as of
the date
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first above written.
Xxxxx Steel Contractors, Inc.
By:___________________________
Title:________________________
Attest:_______________________
Title:________________________
("Xxxxx")
Signed, sealed and delivered
In the presence of:
_______________________________
Witness
_________________________________
Notary Public
Xxxxxxxx Tanks Alliance, llc
By:___________________________
Title:________________________
Attest:_______________________
Title:________________________
("Xxxxxxxx")
Signed, sealed and delivered
In the presence of:
_________________________________
Witness
_________________________________
Notary Public
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The foregoing instrument was prepared by:
____________________________________
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx Xxxx & XxXxxxxx PLLC
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
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EXHIBIT A
PROPERTY DESCRIPTION
[To Be Completed]
