Exhibit 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, made this 7th day of January, 1997, by
and between VOLVO CARS OF NORTH AMERICA, INC., a Delaware corporation
("Seller"); and DOLLAR TREE STORES, INC., a Virginia corporation and/or assigns
("Buyer"), DOLLAR TREE PROPERTIES, INC., a Virginia corporation ("DTP") and
DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation ("DTD").
WITNESSETH:
1. PROPERTY. Seller agrees to sell and Buyer agrees to buy at the price and
upon the terms and conditions herein set forth that certain parcel of land in
the City of Chesapeake, Virginia (the "City"), containing approximately 48.79
acres, shown as Parcels 10B-1 and 10B-2 together with the land designated
"Proposed Executive Boulevard 80' R/W," (the "Property") on that certain plat
entitled, "Preliminary Subdivision Plat of Parcel 10B Volvo Tract" made by
Engineering Services, Inc., and dated December 19, 1996, attached hereto as
Exhibit A and by this reference made a part hereof ("Preliminary Plat"). The
parties acknowledge that Buyer intends to develop the Property as a corporate
office, warehouse and distribution center (the "Project"). The parties further
acknowledge that Buyer's development plans may require realignment of boundary
lines, as Buyer's architects and engineers may specify, and the parties agree to
cooperate in determining the final boundaries of the Property prior to recording
a final subdivision plat (the "Subdivision Plat").
2. PURCHASE PRICE. The purchase price for the Property ("Purchase Price")
shall be $100,000 per acre for the portion of Parcel 10B-1 lying south of the
dashed line labeled, "Purchase Price Dividing Line" on Exhibit A and $70,000 per
acre for the remainder of Parcel 10B-1 and Parcel 10B-2, all as shown on the
final subdivision plat or determined by a boundary survey of the Property
prepared by Engineering Services, Inc. or such other qualified land surveyor
selected by Buyer and approved by Seller, which approval shall not be
unreasonably withheld or delayed. To determine the area of the Property in
calculating the Purchase Price, the surveyor shall exclude all land required to
be dedicated for the road described in paragraph 7.d, which land is designated
"Proposed Executive Boulevard 80' R/W" (the "Road Tract") on Exhibit A. Buyer
shall furnish its calculation of the actual Purchase Price at least two days
prior to Settlement. The Purchase Price shall be payable as follows:
a. The sum of $125,000.00 shall be deposited with Pioneer Title
("Escrow Agent") upon the execution and delivery of this Agreement, to be held
in an interest bearing account as an earnest money deposit (the "Deposit") and
paid to Seller at the consummation of the purchase and sale under this Agreement
(the "Settlement"), or distributed as otherwise provided herein.
b. At Settlement, Buyer shall pay Seller the balance of the Purchase
Price by wire transfer or other immediately available funds.
c. All interest on the Deposit shall accrue and be applied to the
Purchase Price at Settlement.
d. At Settlement, the Purchase Price shall be reduced by the sum of
the following:
i. $400,000 to reimburse Buyer for a portion of the cost of
installing the road described in paragraph 7.d;
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ii. $5,500.00 to reimburse Buyer for the cost of the
subdivision plat; and
iii. $100,000.00 to reimburse Buyer for the cost of removing
excess soil ("Stockpiled Soil") now stored on the
Property.
3. SETTLEMENT.
a. The Settlement for the sale and purchase of the Property shall be
held at the law office of Hofheimer, Nusbaum, McPhaul & Samuels, a Professional
Corporation, 1700 Dominion Tower, Norfolk, Virginia, or at such place as Buyer
may select. Notwithstanding the foregoing, Buyer and Seller agree that, at the
request of Seller, Buyer and Seller shall use all reasonable efforts to effect
the Settlement without necessitating the presence of either party so that Seller
will deliver all documents required to be delivered by it in escrow to a
mutually acceptable escrow agent in Virginia, and Buyer will deliver all
documents and funds required to be delivered by Buyer in escrow to such escrow
agent (Buyer and Seller hereby acknowledging that Buyer's title insurer will be
an acceptable escrow agent), each such delivery to be under terms which allow
and provide for the release from escrow and delivery for recordation or to the
appropriate party of all documents so held and the disbursement of all funds so
held. The Settlement shall be on the later to occur of January 10, 1997, or the
day on which all of the conditions in paragraph 8 and paragraph 9 have been
satisfied, but in no event later than the "Outside Closing Date" as defined in
the next sentence. The Outside Closing Date shall be defined as the later of
March 31, 1997 or ten (10) days after Seller has performed its obligations
hereunder. If settlement shall not occur by the Outside Closing Date for any
reason other than a failure of Seller to perform its obligations hereunder, the
Deposit shall become non-refundable and Settlement shall occur no later than 30
days following the Outside Closing Date, time being of the essence, subject to
the provisions of paragraph 8.b. Seller agrees to deliver title and possession
of the Property to Buyer at closing by General Warranty deed (the "Deed") with
English covenants of title, free and clear of all liens and encumbrances of any
kind or description and free and clear of any easements, conditions, or
reservations of record which adversely affect Buyer's intended use of the
Property as a corporate office, warehouse and distribution center, subject to
any title matters waived or accepted by Buyer pursuant to the provisions of
paragraphs 4.a and 4.b below.
b. Risk of loss to the Property shall be and remain the responsibility
of Seller until Settlement. Taxes and other apportionable items, if any, shall
be prorated at the date of Settlement. Seller shall pay prior to Settlement any
rollback taxes assessed with respect to the Property. If the Property does not
have a separate tax assessment as of Settlement, the parties agree to establish
an escrow account with Buyer's title insurer, to pay all real estate taxes
payable before the Property becomes a separate tax parcel, and each party shall
fund its share of such real estate taxes at Settlement. If Seller's rollback tax
liability cannot be determined and paid prior to Settlement, Seller agrees to
satisfy the reasonable requirements of Buyer's title insurer to issue an owner's
title insurance policy with affirmative coverage for such rollback taxes. The
establishment of an escrow account with Buyers title insurer in an amount
sufficient to fund the estimated amount of such rollback taxes shall be an
acceptable reasonable requirement. Each party shall be responsible for its own
legal fees in connection with Settlement.
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Seller shall pay the cost of preparation of any subdivision plat required to
enable Seller to convey the Property as herein described, and the cost of
preparation of the deed and the grantor's tax thereon; and Buyer shall pay all
other costs and fees which may be required relating to the transfer of title.
c. At Settlement, Seller agrees to convey Parcel 10B-2 as shown on
Exhibit A and finally configured on the Subdivision Plat ("Parcel 10B-2") and
the northern 150+/- feet of the Road Tract as finally configured on the
Subdivision Plat to Buyer's designee, Dollar Tree Properties, Inc. Seller also
agrees at Settlement to convey Parcel 10B-1 as shown on Exhibit A and finally
configured on the Subdivision Plat ("Parcel 10B-1") and the balance of the Road
Tract not conveyed to DTP to Buyer's designee Dollar Tree Distribution, Inc.
4. TITLE.
a. Buyer shall have title to the Property examined and shall, within 10
days after the execution and delivery of this Agreement, notify Seller in
writing of any objections to restrictions, easements, encumbrances, or any other
matters of record which will have an adverse effect on Buyer's intended use of
the Property. Title shall be such that Buyer can obtain an owner's title
insurance policy from a reputable title insurance company at standard premiums,
without exception other than for restrictions, easements or encumbrances
acceptable to Buyer. Seller agrees to cause or allow no changes to the title to
the Property subsequent to Buyer's title examination ("Title Changes") without
Buyer's prior written consent. Upon receipt of notice of any such objections,
Seller shall remove such objections at Seller's expense, and Seller shall be
allowed a reasonable time in which to do so; provided, however, if (i) such
objections cannot be removed within 75 days, or (ii) the cost to correct such
objections would exceed $100,000, Seller may give Buyer written notice within 10
days after receipt of Buyer's objections that it elects not to cure them, and,
unless Buyer then waives such objections, Buyer's Deposit (together with any
interest thereon) shall be returned to Buyer, and thereupon all rights and
obligations hereunder shall cease and terminate. In the event Buyer does not
notify Seller in writing within 10 days after the execution and delivery of this
Agreement of any objections to title of the Property or otherwise as set forth
in this paragraph, Buyer shall have no right to object to the title to the
Property for the purpose of this paragraph 4.a except with respect to matters
first arising after the date of Buyer's title examination or matters specified
in paragraph 8 as a condition to Settlement.
b. If any Title Changes shall occur, Seller shall be allowed a
reasonable time after notice or discovery thereof in which to cure them;
provided, however, if such Title Changes were not caused or allowed by Seller,
and such objections cannot be removed within 75 days or the cost to correct them
will exceed $100,000.00, Seller may elect not to cure them and, unless Buyer
waives its objection to Title Changes, the Deposit (together with any interest
thereon) shall be returned to Buyer, and thereupon all rights and obligations
hereunder shall cease and terminate.
c. Nothing contained herein shall absolve the Seller from the
obligation to pay at or before Settlement any due or accrued real estate taxes
constituting a lien upon the Property or any other indebtedness constituting a
valid and enforceable lien thereon recorded in the chain of title.
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5. ACCESS TO PROPERTY.
a. From and after full execution hereof and until Settlement or until
this Agreement is terminated, Buyer, its employees and agents shall have the
right to go upon the Property from time to time for the purpose of making
surveys, examinations, tests, environmental assessments and borings as Buyer may
determine to be necessary and desirable, so long as such studies do not result
in a material change in the present character or topography of the Property. In
the event any such study, review or inspection reveals any material defects in
the Property which are not acceptable to Buyer in Buyer's sole discretion, Buyer
shall have the option within 30 days after execution of this Agreement by both
parties, to (a) cancel this Agreement, or (b) notify Seller of such defect or
fact, in which event Seller shall within 30 days after such notice or such other
reasonable time not to exceed 55 days (i) correct such item, or (ii) at Seller's
option, if the cost to correct would exceed $100,000 or the time to correct
shall exceed 55 days, notify the Buyer that such defect will not be corrected,
and the Buyer shall have the right to make Settlement or to cancel this
Agreement. In the event of such cancellation, the Escrow Agent shall pay the
Deposit (together with any interest thereon) then held to Buyer, and the parties
hereto shall have no further rights against or obligations to the others. Buyer
shall not be liable for any trees or other plants which may be damaged or
destroyed in conducting on-site tests or surveys, but shall take reasonable care
to minimize the scope of such damage and destruction. Buyer agrees to indemnify
Seller and hold Seller harmless from and against all damages, claims, costs,
expenses and liabilities arising from the filing against the Property of any
mechanic's, materialmen's or similar lien resulting from work or services
performed at the instance of Buyer or arising out of personal injury, death and
damage incurred as a result of the exercise of the rights granted in this
paragraph 5.a or arising from any of the activities described herein. Buyer's
indemnity under the preceding sentence shall survive the termination of this
Agreement or Settlement hereunder.
b. In the event Buyer does not make Settlement for the Property, Buyer
agrees promptly to deliver to Seller, at no cost to Seller, copies of all soil
tests, surveys and engineering reports performed by Buyer, or at Buyer's
request, with respect to the Property.
6. SELLER'S AGREEMENTS AND WARRANTIES.
a. Seller agrees to grant to Buyer reasonable appurtenant easements for
utilities and drainage for the benefit of the Property ("Buyer's Easements")
across Parcel 10B-3 as shown on Exhibit A and finally configured on the
Subdivision Plat ("Parcel 10B-3") and Seller's land that adjoins the Property to
the east designated Parcel 10B-4 on the Preliminary Plat ("Seller's Remaining
Land") to the extent necessary in the judgment of Buyer's engineers and planners
to provide reasonable post development drainage and utilities services to the
Project while at the same time reasonably accommodating Seller's use and
development of Seller's Remaining Land. At Settlement, Buyer and Seller shall
execute and deliver a recordable reciprocal easement agreement or two separate
easement deeds (the "Reciprocal Easement Agreement") affecting the Property and
Parcel 10B-3 and Seller's Remaining Land in order to create and govern Buyer's
Easements and Seller's Easements (as hereinafter defined). The location, width
and scope of Buyer's Easements and Seller's Easements (as hereinafter defined)
and other terms of the Reciprocal Easement
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Agreement shall be determined by mutual agreement between the parties set forth
in the Reciprocal Easement Agreement. The Reciprocal Easement Agreement shall
provide that each party shall have the right to relocate the utility lines and
drainage systems and other facilities located within the easements, at the
requesting party's sole expense, provided that such relocation will not diminish
the service provided by such facilities and reduce or unreasonably impair the
usefulness or function thereof, and further provided that such relocation will
be performed using materials and design standards which are comparable to those
originally used. The Reciprocal Easement Agreement shall be recorded among the
land records in the Clerk's Office of the Circuit Court of the City of
Chesapeake, Virginia. All Buyer's Easements shall be granted without additional
cost to Buyer. In addition, Seller agrees to grant Buyer such temporary access
and entry to Parcel 10B-3 and Seller's Remaining Land, including temporary
construction easements, as Buyer may reasonably require to construct the Road
described in paragraph 7.d. Buyer agrees to provide Seller with all agreements,
plats and deeds creating Buyer's Easements at least three (3) business days
prior to settlement, and Seller shall have a right within such three (3) day
period to provide Buyer before Settlement with written objections to any aspect
of Buyer's Easements which it finds hinders Seller unreasonably.
b. i. As used herein, "Hazardous Materials" shall mean any flammables,
explosives, radioactive materials, hazardous materials, hazardous waste,
hazardous or toxic substances or matter, oil or other petroleum products,
asbestos, chemical pollutants or related materials, including the foregoing as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), the
Resource Conversation and Recovery Act, as amended (42 U.S.C. Section 6901, et
seq.), applicable state statutes; and in the regulations adopted and
publications promulgated pursuant thereto.
ii. As used in this Agreement, the term "Seller's knowledge"
shall mean the actual knowledge, without independent inquiry or investigation,
of Robert B. Mercer, Vice President and General Counsel of Seller, David C.
Korpics, Vice President and Chief Financial Officer of Seller and Seller's
broker, Michael Jacobus.
iii. Seller represents and warrants that with the exception of
Hazardous Materials which may be contained in discarded materials left on the
site as reported in Phase I Site Assessment prepared by Law Engineering dated
October 7, 1993 (a copy of which is attached hereto as Exhibit C) and in other
debris currently located on the Property, to Seller's knowledge there are no
Hazardous Materials located on the Property and the Property has not been used
or operated for the storage, use, treatment, manufacture or disposal of any
Hazardous Materials. Use of the Property for any of such purposes, or the
presence of any Hazardous Material upon or under the Property, at any time prior
to Settlement shall constitute a title defect pursuant to paragraphs 4.a. and
4.b.
iv. Seller further represents and warrants that to Seller's
knowledge there are no underground tanks upon the Property.
c. Seller agrees to cooperate with Buyer at all times in obtaining any
rezoning, variances, licenses, permits or approvals as Buyer deems necessary to
develop the Project, and to execute or join in the execution, of any and all
applications, petitions, pleadings, licenses, permits, plats or approvals
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as Buyer may reasonably request; provided, however, any such action shall be at
Buyer's sole cost and expense and no action in which Buyer requests Seller's
joinder shall, in Seller's reasonable judgment, either materially reduce the
value of the Property, or subject the Seller to liability; provided further,
however, Buyer shall have no liability to Seller for any action to which Seller
has acquiesced regardless of whether such action may have the effect of reducing
the value of the Property.
d. Seller shall use all reasonable efforts to cooperate with Buyer to
provide the Subdivision Plat as soon as possible.
e. Seller further represents and warrants that (i) now and at
Settlement it has and will have full right, power and authority to enter into
this Agreement and to perform all obligations of Seller in accordance with the
terms and conditions of this Agreement, (ii) assuming due authorization,
execution and delivery by Buyer, this Agreement constitutes, and at Settlement
will constitute, a legal, valid and binding obligation of Seller, enforceable
against Seller, in accordance with its terms, and (iii) as of Settlement, there
are no tenants or licensees with respect to the Property whose tenancy or
license cannot be terminated without cost to Buyer at its will upon no more than
ten (10) days' notice.
f. Seller represents and warrants that other than Jack Frost
Enterprises or its affiliates ("Jack Frost") there are no tenants or licensees
with respect to the Property claiming any interest in the Stockpiled Soil.
Seller hereby agrees to indemnify Buyer, DTD and DTP and hold them harmless from
and against all damages, claims, costs, expenses and liabilities arising from
any claim by any person or entity other than Jack Frost for any interest or
rights in the Stockpiled Soil or any tenancy or license with respect to the
Property. Seller's indemnity and obligation under this paragraph 6.f shall
survive the termination of this Agreement or Settlement hereunder.
g. Seller agrees to convey to Buyer, or its designee, DTD, at
Settlement, at no additional cost to Buyer or DTD and free and clear of all
liens and encumbrances, sufficient land to allow construction of a deceleration
lane for westbound traffic on Volvo Parkway turning right onto the Road
described in paragraph 7.b, if the City of Chesapeake or other governmental
authority requires such deceleration lane; provided, however, that the amount of
such additional land shall be the least amount consistent with good engineering
practices and municipal requirements, and provided further that Seller shall
bear no cost to construct any improvements or to relocate from the affected land
any utility facilities including the cost of relocating Virginia Power Company
transformer facilities.
7. BUYER'S AGREEMENTS AND WARRANTIES.
a. Buyer agrees that DTP and/or DTD will grant in the Reciprocal
Easement Agreement or Seller shall reserve in the Deed reasonable appurtenant
easements for utilities and drainage for the benefit of Parcel 10B-3 and
Seller's Remaining Land ("Seller's Easements") across the Property to the extent
necessary in the judgment of Seller's engineers and planners to provide
reasonable post development drainage and utility services to Parcel 10B-3 and
Seller's Remaining Land while at the same time reasonably accommodating Buyer's
use and development of the Property. Seller's Easements shall also include an
easement for the benefit of Seller and its successors and assigns for access and
utilities in, on, under, across and over the Road Tract which shall terminate
upon the Road Tract's dedication to and acceptance by the City
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of Chesapeake as a public street. All of Seller's Easements shall be granted or
reserved without additional payment to Buyer or the owner of the burdened
property or any reduction in the Purchase Price. Seller agrees to provide Buyer
with all agreements and/or deeds creating Seller's Easements at least three (3)
business days prior to Settlement, and Buyer shall have a right within such
three (3) day period to provide Seller before Settlement with written objections
to any aspect of Seller's Easements which it finds hinders Buyer unreasonably.
b. Buyer represents and warrants that (i) Buyer has full right, power
and authority to enter into this Agreement and now and at Settlement has and
will have full right, power and authority to perform all of the obligations of
Buyer in accordance with the terms and conditions of this Agreement and (ii)
assuming due authorization, execution and delivery by Seller, this Agreement
constitutes, and at Settlement will constitute, a legal, valid and binding
obligation of Buyer, enforceable against Buyer, in accordance with its terms.
c. Buyer shall use all reasonable efforts and will cooperate with
Seller at all times in obtaining subdivision of the Property and any permits or
approvals Seller deems necessary to obtain approval of utilities and drainage
systems now or hereafter located within Seller's Easements, which agreement
shall be incorporated into the Reciprocal Easement Agreement or separate
mutually agreeable instrument prepared in recordable form.
d. DTD shall construct and dedicate to the City of Chesapeake, Virginia
the extension of Executive Boulevard from Volvo Parkway to Eden Way North, as a
four lane road with a right-of-way 80 feet wide, about 2,220 feet in length (the
"Road"), in accordance with the specifications described in this paragraph and
in Exhibit B attached hereto. The portion of the Road extending in a southerly
direction from Eden Way North for a distance of 1,200 feet shall be completed
and open for use pursuant to an access easement in favor of Seller and its
successors and assigns by December 31, 1997. The remainder of the Road shall be
completed and open for public use by July 1, 1998. Buyer and DTD shall provide
Seller with financial statements and other financial information concerning
Buyer and DTD, and Buyer shall guaranty to Seller the full and prompt payment
and performance of all obligations of DTD under this Agreement pursuant to the
terms of a guaranty instrument acceptable to Seller and its counsel in form and
substance (the "Road Guaranty"). Buyer shall cause DTD to issue payment and
performance bonds with surety for the construction of the road for the benefit
of the City of Chesapeake, Virginia ("Road Bond") within six (6) months of the
date hereof and shall provide DTD with all necessary funding for the
construction of the road. Buyer's plans for constructing the Road shall include
(i) one water service lateral for Parcel 10B-3 shown on Exhibit A and three
water service laterals for Seller's Remaining Land, (ii) one sanitary sewer
service lateral for Parcel 10B-3, and five sanitary sewer service laterals for
Seller's Remaining Land, and (iii) one (1) pipe stub located near the northeast
corner of Parcel 10B-3 to receive storm water run-off from Parcel 10B-3, and
three (3) additional pipe stubs (spaced approximately equally) to receive storm
water run-off from a portion of the Seller's Remaining Land consisting of
approximately 25.4 acres. Thirty three (33.0) acres of the 58.4 acres of
Seller's Remaining Land shall drain into the canal system by means of facilities
located on Seller's Remaining Land and will not be accommodated in the roadway
storm drainage system. Each of the three (3) pipe stubs for storm water serving
Seller's Remaining Land shall be sufficient to handle 10.4 acres of the post
development run-off from
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25.4 acres of Seller's Remaining Land. The trunk line of the storm drainage
system shall be sized to handle 25.4 acres of post development run-off from
Seller's Remaining Land. Said water and sanitary sewer service laterals and
storm water pipe stubs shall be of size, depth and other design parameters
described below, but in no event shall be less than the standards and criteria
required by the City of Chesapeake:
i. Water services shall be at least 8" in size.
ii. Sanitary sewer services shall be at least 8" in diameter
and shall terminate at the street right of way line at invert elevations not
higher than 1.0' above the invert elevation of the main at the point where they
discharge.
iii. Storm water pipe stubs shall be sized based on the "Rational
Formula," using a rainfall event with a return interval of 5 years, a composite
site Coefficient of Runoff of not less than 0.80 and an initial time of
concentration of not more than 15 minutes. Buyer agrees to install additional
utilities services and median breaks or other road improvements requested by
Seller within six (6) months of the date hereof for the benefit of Seller's
Remaining Land, so long as Seller pays the cost thereof in excess of the cost to
provide the levels of service enumerated above, as and when incurred by Buyer,
within ten (10) days after receipt and approval of supporting invoices and other
documentation reasonably requested by Seller's engineer. In addition to the
conditions contained in paragraph 8, Buyer's and DTD's obligations under this
paragraph 7.d are conditioned upon obtaining all appropriate federal, state, and
city approvals for the construction of the Road, it being understood that Buyer
and DTD shall use all reasonable efforts to obtain such approvals.
8. BUYER'S CONDITIONS TO SETTLEMENT.
a. Buyer's obligation to make Settlement under this Agreement is
expressly conditioned upon satisfaction of the following conditions:
i. Buyer determining within 30 days after the date hereof, in its
sole discretion, the feasibility of developing the Project. Buyer's inquiries
related to the Property during such 30 day period may include, without
limitation, zoning status and soil conditions. Buyer shall pay all costs
associated with any feasibility studies.
ii. Seller's representations and warranties shall be true and
correct at Settlement and Seller's covenants and agreements shall be fully
performed on or before Settlement.
iii. Final approval of the subdivision plat by the City.
iv. Buyer obtaining all permits necessary to permit it to
commence site work for the Project, but specifically excluding any permits and
letters of confirmation required by Buyer from federal, state or city agencies
relating to jurisdictional wetland areas which may be contained on the Property.
v. Seller having cured or removed or Buyer having waived or
accepted any Title Changes.
vi. Buyer obtaining approval from the City and any other state or
governmental authority, including the Virginia Department of Transportation, of
the plans for constructing the Road, and Buyer obtaining from the City or other
municipal authority, its binding commitment to underwrite not less than $500,000
of the cost of design and construction.
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vii. Buyer and Seller entering into the Reciprocal Easement
Agreement and/or a separate agreement (the "Settlement Agreement") at Settlement
acceptable to Buyer and Seller addressing, among other things, all of the
requirements for Seller's Easements and Buyer's Easements set forth in
paragraphs 6.a and 7.a hereof.
viii. Seller shall have no objections to Buyer's Easements which
Buyer has failed to satisfy on or before Settlement.
b. In the event Buyer or Seller is unable to satisfy any of the
conditions set forth in paragraphs 8.a.i through viii ("Buyer's Closing
Conditions") on or before the Outside Closing Date, Buyer shall have the right:
(i) to notify Seller that it waives satisfaction of any such Buyer's Closing
Conditions and will nevertheless make Settlement for the Property, or (ii) to
void this Agreement, in which case Escrow Agent shall pay the Deposit (and any
accrued interest) to Buyer, and neither party hereto shall have any further
rights against or obligations to the other. If Buyer fails to notify Seller of
its election under the previous sentence, it will be deemed to have elected
option (i) and will proceed to Settlement within thirty (30) days following the
Outside Closing Date. If Buyer's Closing Conditions have not been satisfied
before the Outside Closing Date, Buyer shall have the option to extend the date
for Settlement as follows, time being of the essence for all dates:
i. Buyer may extend the date for Settlement to June 30, 1997 by
delivering to Seller on or before March 31, 1997 (a) written notice of such
election and (b) the amount of $100,000.00 to Seller (such delivery of funds to
be effected either by wire transfer or by Buyer's check payable to Seller); and
ii. Provided Buyer shall have extended the date for Settlement as
provided in item 1, immediately above, Buyer may further extend the date for
Settlement to September 30, 1997 by delivering to Seller on or before June 30,
1997 (a) written notice of such election and (b) the amount of $100,000.00 to
Seller (such delivery of funds to be effected with by wire transfer or Buyer's
check payable to Seller); and
iii. All amounts delivered by Seller pursuant to this paragraph
8.b., being $100,000.00 or $200,000.00 as the case may be, together with
interest thereafter earned thereon, are hereinafter called the "Extension Fee".
None of the Extension Fee shall be credited against the Purchase Price due at
Settlement.
9. SELLER'S CONDITIONS TO SETTLEMENT. Seller's obligation to make
Settlement under this Agreement is expressly conditioned upon satisfaction of
the following conditions:
a. The parties shall have executed and delivered the Reciprocal
Easement Agreement and/or the Settlement Agreement.
b. Buyer's representations and warranties shall be true and correct at
Settlement and Buyer's covenants and agreements shall be fully performed on or
before Settlement.
c. Final approval of the subdivision plat of the Property and
Seller's Remaining Land shall have been given by the City.
d. Execution and delivery of the Road Guaranty.
e. Buyer shall have paid the Purchase Price and other sums necessary
for closing to its attorney as settlement agent with the understanding that no
proceeds payable in accordance with an agreed settlement statement between the
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parties shall be wired to Seller in accordance with its instructions until Buyer
receives telephonic notification that the Deed has been placed in line for
recordation among the land records in the Clerk's Office of the Circuit Court of
the City of Chesapeake, Virginia, and Buyer's title insurance company will
insure any "gap" between the delivery of the deed to the Clerk and the actual
time of recording.
f. Buyer shall have no objections to Seller's Easements, which Seller
has failed to satisfy on or before Settlement.
10. BUYER'S DEFAULT. In the event Buyer fails to purchase the Property in
accordance with the terms and conditions of this Agreement, or otherwise
defaults in the performance of Buyer's obligations pursuant to this Agreement,
for any reason other than Seller's default or as otherwise permitted hereunder,
Seller shall have the right to void this Agreement and to receive the Deposit
plus all accrued interest as liquidated damages as Seller's sole remedy
hereunder.
11. SELLER'S DEFAULT. In the event that Seller shall default in the
performance of its obligations hereunder, for any reason other than a default by
the Buyer, then Buyer may at Buyer's option compel specific performance by
Seller, pursue its remedy for damages arising from Seller's breach of any
warranty, covenant or agreement contained in this Agreement or any material
misrepresentation contained herein, or terminate this Agreement, in which event
Escrow Agent shall forthwith return Buyer's Deposit plus all accrued interest,
and the parties shall have no further rights against or obligations to the
others. In the event Buyer seeks to compel specific performance by Seller, or
Buyer pursues its remedy for damages arising from Seller's breach, Seller shall
pay Buyer's reasonable attorney's fees incurred in such action.
12. REAL ESTATE BROKERS. The parties agree that Seller will compensate its
real estate broker, McBride Corporate Real Estate, pursuant to a separate
agreement. Buyer represents and warrants that Buyer has not dealt with any other
agent or broker in connection with the purchase of the Property. Buyer agrees to
indemnify and hold Seller harmless from any and all cost, expense and loss
(including attorney's fees) which Seller suffers as a result of a claim for real
estate commissions on this transaction as a result of Buyer's dealing with any
other agent or broker in connection herewith.
13. CONDEMNATION.
a. If any eminent domain proceeding (including a temporary taking)
affecting any portion of the Property is commenced or threatened before
Settlement by a governmental body having the power of eminent domain
("Condemnation"), Seller shall immediately give Buyer written notice thereof and
will promptly provide Buyer with copies of all other communications pertaining
to such Condemnation. Seller will also promptly give Buyer notice of the time
and place of meetings or telephone conferences with the condemning authority
pertaining to the Condemnation and Buyer shall be given the opportunity to have
a representative of Buyer attend and/or participate in any meeting or conference
and to participate in all negotiations relating to any Condemnation. Seller
shall not agree to accept any Condemnation award without Buyer's prior written
approval, and Buyer will have the right to contest any
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award proposed by the condemning authority. In the event Condemnation
proceedings are instituted, Buyer shall have the option:
i. to elect to proceed in accordance with this Agreement to
purchase the Property notwithstanding such Condemnation; or
ii. to terminate this Agreement, in which event Seller's
attorney shall pay any Deposit and accrued interest to Buyer, and neither party
shall have any further obligation to the other hereunder.
b. If Buyer fails to make an election as provide in paragraph 13.a
above, within fifteen (15) days following the institution of Condemnation
proceedings, then Buyer shall be deemed to have elected the option described in
paragraph 13.b.ii above.
c. If Buyer elects to proceed in accordance with this Agreement as
described in paragraph 13.a.i and title to that portion of the Property which is
the subject of the Condemnation has not been acquired by the condemning
authority as of Settlement, Buyer will have the further option to acquire all of
the Property (including that portion of the Property which is the subject of the
Condemnation) and require Seller to assign Seller's interest in the Condemnation
award to Buyer at Settlement, which Seller agrees to do.
d. If Buyer elects to proceed in accordance with this Agreement as
described in paragraph 13.a.i and title to that portion of the Property which is
the subject of the Condemnation has been acquired by the condemning authority as
of Settlement, the Seller will receive the entire award and the Purchase Price
will decrease to reflect the actual acreage of the Property remaining after the
Condemnation.
e. If Buyer elects to proceed in accordance with this Agreement as
described in paragraph 13.a.i and the Condemnation resulted in the creation of
an easement or encumbrance on the Property without a reduction in the acreage of
the Property, then Seller will receive the entire award from Condemnation and
the Purchase Price will decrease by the condemnation proceeds that were paid or
are payable to Seller.
14. NOTICES. All notices and communications hereunder, including
change of address, shall be in writing and shall be deemed to have been duly
given when personally delivered or deposited at the U.S. Postal Services by
registered or certified mail, return receipt requested, postage prepaid:
IF TO SELLER: Volvo Cars of North America, Inc.
6 Volvo Drive, Building C
Rockleigh, New Jersey 07647
Attn: Robert B. Mercer, Esquire
WITH A COPY TO: Willcox & Savage, P.C.
1800 NationsBank Center
One Commercial Place
Norfolk, Virginia 23510
Attn: Anthony M. Thiel, Esquire
IF TO BUYER: Dollar Tree Stores, Inc.
2555 Ellsmere Avenue
Norfolk, Virginia 23513
Attn: Mr. H. Ray Compton
11
WITH COPY TO: Hofheimer, Nusbaum, McPhaul & Samuels,
a Professional Corporation
1700 Dominion Tower, P.O. Box 3460
Norfolk, Virginia 23514
Attn.: William A. Old, Jr., Esquire
By notice provided as above, any of the foregoing parties may advise the
other parties of a change of address for notice purposes.
15. BINDING. The parties to this Agreement mutually agree that it shall be
binding upon them and each of their successors, heirs, personal representatives
and assigns. This Agreement shall be assignable by Buyer to a partnership,
corporation or other entity to be formed for which Buyer is acting as agent,
only if Buyer shall remain liable for all of the obligations and duties under
this Agreement. This Agreement contains the final and entire Agreement between
the parties hereto, and neither they nor their agents shall be bound by any
terms, conditions, warranties, or representations, oral or written, not herein
contained.
16. APPLICABLE LAW. This Agreement shall be construed in accordance
with the laws and the State of Virginia.
17. SURVIVAL. Except for paragraphs 1, 2, 3.a, 3.c, 4.a, 4.b, 6.d, 8,
9 and 13, the terms of this Agreement shall survive Settlement.
18. MERGER; WAIVER; MISCELLANEOUS. This Agreement (which term shall include
any exhibit or attachment hereto), the Deed, the Reciprocal Easement Agreement
and the Road Guaranty embody the entire agreement and understanding of the
parties. There are no restrictions, promises, representations, warranties,
covenants or undertakings other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and undertakings between
the parties. The parties make no representations or warranties to each other,
except as contained in this Agreement, and any and all prior representations,
warranties, assurances and promises made by any party or its representatives,
whether verbally or in writing, are deemed to have been merged into this
Agreement, it being intended that no such prior representations, warranties,
assurances and promises shall survive the execution and delivery of this
Agreement. Failure of any party at any time or times to require performance of
any provision of this Agreement shall in no manner affect the right at a later
time to enforce the provision. No waiver by either party of any condition, or
the breach of any term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed a further or continuing waiver of any condition or covenant,
representation or warranty of this Agreement. Any change to this Agreement shall
be made only in writing executed by the party sought to be charged thereby. This
Agreement shall not be construed more strictly against one party than the other
by virtue of the fact that it may have been prepared by counsel for one of the
parties, it being recognized that both Buyer and Seller have contributed
substantially and materially to the preparation of this Agreement. The term
"include" or "including" shall mean without limitation by reason of enumeration.
References to a "Paragraph" or to "paragraphs" and other subdivisions without
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reference to a document are to designated paragraphs or other subdivisions of
this Agreement. The words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision unless otherwise specifically stated in this Agreement. The captions
and paragraph headings are for convenience only and shall not be used in
construing or enforcing any of the provisions of this Agreement. This Agreement
may be executed in two (2) or more counterparts, each of which shall be deemed
an original hereof, but all of which, together, shall constitute a single
agreement. There are no third party beneficiaries of this Agreement.
IN WITNESS WHEREOF, the parties herein have executed this Agreement and
have caused their names to be hereunto subscribed on the date and year indicated
below:
VOLVO CARS OF NORTH AMERICA, INC.,
a Delaware Corporation
Dated: January 16, 1997 By: /s/ Robert B. Mercer
Title: Vice President
DOLLAR TREE STORES, INC.,
a Virginia corporation
Dated: January 16, 1997 By: /s/ H. Ray Compton
Title: Executive Vice President
FOR THE PURPOSES OF PARAGRAPHS 3.c and 7.d:
DOLLAR TREE PROPERTIES, INC.,
a Virginia corporation
Dated: January 16, 1997 By: /s/ H. Ray Compton
Title: Executive Vice President
DOLLAR TREE DISTRIBUTION, INC.,
a Virginia corporation
Dated: January 16, 1997 By: /s/ H. Ray Compton
Title: Executive Vice President
13
STATE OF New Jersey
CITY/COUNTY OF Bergen
The foregoing instrument was acknowledged before me this 16th day of
January, 1997, by Robert B. Mercer, as Vice President of VOLVO CARS OF
NORTH AMERICA, INC., a Delaware corporation, on behalf of the corporation.
/s/ Diane Marino
-----------------------------
Notary Public
My commission expires: 7/10/2001
STATE OF Virginia
CITY/COUNTY OF Norfolk
The foregoing instrument was acknowledged before me this 16th day of
January, 1997, by H. Ray Compton, as Executive Vice President of DOLLAR TREE
STORES, INC., a Virginia corporation, on behalf of the corporation.
/s/ Carol C. Lilla
-----------------------------
Notary Public
My commission expires: 4/30/99
14
STATE OF Virginia
CITY/COUNTY OF Norfolk
The foregoing instrument was acknowledged before me this 16th day of
January, 1997, by H. Ray Compton, as Executive Vice President of DOLLAR TREE
PROPERTIES, INC., a Virginia corporation, on behalf of the corporation.
/s/ Carol C. Lilla
-----------------------------
Notary Public
My commission expires: 4/30/99
STATE OF Virginia
CITY/COUNTY OF Norfolk
The foregoing instrument was acknowledged before me this 16th day of
January, 1997, by H. Ray Compton, as Executive Vice President of DOLLAR TREE
DISTRIBUTION, INC., a Virginia corporation, on behalf of the corporation.
/s/ Carol C. Lilla
-----------------------------
Notary Public
My commission expires: 4/30/99
15
EXHIBIT B TO AGREEMENT DATED JANUARY 7, 1997
BY AND BETWEEN DOLLAR TREE STORES, INC. ("DTS") AND
VOLVO CARS OF AMERICA, INC.
DTS will cause Dollar Tree Distribution, Inc., to construct the Road
consisting of the extension of Executive Boulevard and the related improvements
described below, approximately 2,220 feet in length with an 80 foot right-of-way
extending from the intersection of Executive Boulevard and Volvo Parkway to the
intersection of Eden Way North and Kristina Way, more particularly set forth in
approximate location and design shown on Exhibit A. The Road shall be designed
and constructed in accordance with the City's standard typical roadway section
for an 80-foot right-of-way (RW-80) and shall meet applicable requirements in
the Chesapeake Public Facilities Manual. The general requirements for the
building of the Road, subject to modification based on actual site conditions,
are as follows:
1. One line of curb and gutter on the outside of each of the two
roadways and one line of curb on the inside of each of the two
roadways.
2. Heavy pavement including approximately 5" stone base and
approximately 10" asphalt.
3. 4' wide sidewalk on each side.
4. 10" or 12" water main with fire hydrants, valves, etc. extending
to and connecting with the water main located in Volvo Parkway.
5. 8" sanitary sewer with manholes, laterals, etc.
6. Storm water drainage sized to meet the post development run-off
requirements (as described in paragraph 7.d) for the surrounding
property as determined in accordance with reasonable engineering
standards and practices and the requirements of the City of
Chesapeake.
7. Clearing.
8. Grading.
9. Street lights at approximately 160' intervals.
10. Canal crossing by culvert.
11. If required by the City of Chesapeake, installing, providing bonds
for the installation of, or making all contributions required by
the City towards the installation of traffic signals at Eden Way
North and Executive Drive and/or Executive Drive and Volvo
Parkway. Nothing herein shall impose any obligation on DTS with
respect to traffic signals previously bonded by third parties.
12. If pump station upgrades are required by the City of Chesapeake in
connection with the development of the Property and/or
construction of the Road, the upgrades shall include all
improvements necessary to accommodate development of the Property,
Parcel 10B-3 and all of Seller's Remaining Land. After completing
the Road and developing the Property, none of Buyer, DTD or DTP
will have any further obligation to upgrade the pump stations.
13. All costs for relocating any Virginia Power or other utility
equipment, facilities, cables and lines directly relating to the
building of the Road.
14. If required by the City, construction of a right turn deceleration
lane for westbound traffic on Volvo Parkway.