EXHIBIT 10.26
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (hereinafter sometimes called the "Agreement")
by and between EGL EAGLE GLOBAL LOGISTICS, L.P. a Delaware limited partnership
(hereinafter called "Seller"), and MCMILLAN INVESTMENT COMPANY, LTD., a Texas
limited liability company (hereinafter called "Buyer"), is entered into as of
the Effective Date (as herein defined).
W I T N E S S E T H:
1. PROPERTY
Subject to the terms and provisions of this Agreement, Seller
hereby agrees to sell and convey to Buyer, and Buyer agrees to purchase from
Seller, the following:
(a) That certain tract or parcel of land described in Exhibit
"A" attached hereto ----------- and incorporated by reference herein
for all purposes (hereinafter called the "Land") consisting of
approximately 18.136 acres located at the southeast intersection of
N.W. 72nd Avenue and N.W. 58th Street in Dade County, Florida;
(b) All buildings, structures, and improvements, if any,
situated on the Land and all fixtures and other property affixed
thereto (hereinafter called the "Improvements");
(c) All the rights and appurtenances pertaining to the Land
and Improvements, including any mineral rights, rights under any
reciprocal easement agreements or other recorded or unrecorded
instruments benefiting the Property (as hereinafter defined), any
right, title, or interest of Seller in and to easements, adjacent or
contiguous tracts, strips, gores, streets, alleys, or rights-of-way,
any reversionary rights attributable to the Land, any condemnation
awards made or to be made in lieu thereof, and any awards for damage
to the Land by reason of a change of grade of any highway, street,
road, or avenue (hereinafter called the "Appurtenances"); and
(d) All of the following to the extent they relate to or
arise out of the ownership or use of the Land and Improvements: (i)
contracts or agreements such as maintenance, service, or utility
contracts (hereinafter called the "Operating Agreements"), to the
extent that Buyer elects to take assignment thereof, (ii) warranties,
guaranties, indemnities, and claims, (iii) development rights,
governmental approvals, licenses, permits, or similar documents, (iv)
surveys, engineering reports, environmental reports and audits, and
government or regulatory
compliance reports, and (v) other property (real, personal, or mixed,
tangible or intangible), owned or held by Seller to the extent Buyer
elects to take assignment thereof (collectively, all such property
described in this subparagraph (d) being called the "Intangible
Property").
The Land, the Improvements, the Appurtenances, the Intangible
Property, and all the other aforesaid property, rights, and
appurtenances are hereinafter collectively called the "Property."
2. PURCHASE PRICE
The purchase price for the Property shall be the sum of NINE
MILLION SEVEN HUNDRED EIGHTY FOUR THOUSAND EIGHT HUNDRED NINETY TWO and NO/100
Dollars ($9,784,892.00) (the "Purchase Price"), payable in cash, cashier's
checks, federal wire transfer funds, or other immediately available funds at
the Closing (as hereinafter defined), subject to any adjustments and credits
provided in this Agreement. If there are any mortgages, deeds of trust, or
other monetary liens affecting the Property, which were created by, through, or
under Seller, Seller shall pay off and obtain recordable releases and
terminations of all such mortgages and liens, whether the Purchase Price is
sufficient to pay off such mortgages and other liens, and Seller shall be
responsible for any prepayment premiums, document preparation fees, any fees to
record any releases or terminations, and other fees charged by mortgagees in
connection with this transaction.
3. INFORMATION REVIEW PERIOD
Buyer shall have until 5:00 p.m., Houston, Texas time on December 13,
2002 (such period of time is hereinafter called the "Information Review
Period") to make the physical inspection of the Property which is referred to
in Paragraph 4 and decide, in Buyer's sole discretion, whether the Property is
satisfactory to Buyer so as to proceed with the Closing, as referred to herein.
Within five (5) days after the Effective Date, Seller shall deliver to Buyer,
to the extent in Seller's possession or readily obtainable from Seller's agents
or contractors, a true and complete copy of (a) any existing title policy or
commitment relating to the Property, (b) any existing survey of the Property,
and (c) any environmental reports, site assessments, closure reports or
letters, correspondence to and from the applicable governmental authorities, or
any similar documents relating to the environmental condition of the Property.
If Buyer determines as a result of the foregoing inspections and the like that
the condition of the Property is not satisfactory, in Buyer's sole and absolute
discretion, or if Buyer, in its sole discretion, decides FOR ANY REASON not to
purchase the Property during the Information Review Period, then Buyer shall
give Seller notice of Buyer's intent not to close by delivering written notice
thereof to Seller prior to the expiration of the Information Review Period,
whereupon this Agreement shall terminate, Buyer shall receive a refund of the
Earnest Money (hereinafter defined), together with any interest thereon, and
Seller and Buyer shall be relieved of all further obligations under this
Agreement
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(except those obligations, terms and provisions which are explicitly stated to
survive termination of this Agreement).
4. PHYSICAL INSPECTION OF PROPERTY
Buyer shall have the right (for itself, its engineers, and
other representatives) to enter onto the Property to make a physical inspection
thereof, to examine the structure of any Improvements, to conduct soil tests,
and to make such other examinations as Buyer shall deem appropriate. Seller
will cause its contractor, engineer and agents, to cooperate with Buyer, its
employees, agents, and representatives in connection with such inspection and
to respond in writing to such reasonable questions as Buyer (or its employees,
agents, engineers and representatives) may ask in connection with Buyer's
inspection. Commencing on the Effective Date, and continuing until the Closing
Date, Seller shall make available at Seller's office, for inspection and
copying by Buyer or Buyer's designated representatives, all books and records
relating to the Property.
Buyer shall indemnify and defend (using counsel reasonably
acceptable to Seller) Seller and hold Seller harmless from and against all
loss, liability, damage, injury, and claims resulting from Buyer's testing or
inspection of the Property; provided, however, this indemnity shall not
include, and shall specifically exclude, any loss, liability, damage, injury,
and claims arising out of or resulting from, in whole or in part (a) the gross
negligence, or willful misconduct of Seller, or Seller's agents,
representatives, contractors, or employees, or (b) the discovery by Buyer, or
its agents, representatives, contractors, or employees of the presence of any
toxic or hazardous substance or hazardous material in, on, or under the
Property, which condition must be remediated under applicable Environmental
Laws (as that term is hereinafter defined); provided, however, that the
exclusion referred to in item (b) shall not extend to any claims made by the
agents, representatives, contractors, or employees of Buyer arising out of
exposure to any toxic or hazardous substance or hazardous material in, on, or
under the Property which exposure occurs during the course of Buyer's
investigations. This indemnity shall survive the closing of this transaction
(or if this transaction does not close, the termination of this Agreement) for
a period of twelve (12) months commencing on the Closing Date (as hereinafter
defined), or if the transaction does not close, the date this Agreement is
terminated. Upon the expiration of such twelve (12) month period, this
indemnity shall automatically terminate without the necessity of any notice,
and Buyer shall be conclusively deemed released from any liability or
obligations under this indemnity.
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5. EARNEST MONEY
Within one business day after a counterpart or counterparts
of this Agreement executed by Seller and Buyer are delivered to Partners Title
Company (the "Title Company") at their office located at 712 Main, Suite 2000E,
Houston, Texas 77002-3218, Attn: Jim Suttles, Buyer will deposit with the Title
Company the sum of TWENTY FIVE THOUSAND and NO/100 Dollars ($25,000.00) (the
"Earnest Money"), which shall be held in escrow by the Title Company and shall
only be disbursed in accordance with the terms of this Agreement. The Title
Company shall deposit the Earnest Money in one or more interest bearing
accounts with a bank or other financial institution acceptable to Buyer. Upon
the closing of this transaction, the Earnest Money plus any accrued interest
thereon shall be credited against the Purchase Price. In the event this
transaction does not close, the Title Company shall disburse the Earnest Money
as provided in this Agreement and shall pay immediately to Buyer all interest
accrued on the Earnest Money. Additionally, concurrently with the execution of
this Agreement, Buyer shall deliver to Seller the sum of One Hundred and 00/100
Dollars ($100.00) ("Inspection Fee") as consideration for Buyer's information
review and property inspection rights set forth herein, which Inspection Fee
shall remain the property of Seller in all instances.
Buyer acknowledges receipt of Seller's existing environmental
reports, entitled (i) Environmental Site Assessment Phase 1 for Sun Terminals,
Inc. 5601 NW 72nd Ave and 6900 NW 58th St. Prepared for: Seefried Properties,
Inc. Prepared by: Dynatech Engineering Corp, dated April 6, 2001, and (the
"Existing Environmental Report"), and (ii) Environmental Site Assessment Phase
2 for Sun Terminals, Inc. 5601 NW 72nd Ave and 6900 NW 58th St. Prepared for:
Seefried Properties, Inc. Prepared by: Dynatech Engineering Corp, dated May 15,
2001. Buyer further acknowledges that Seller has delivered the same to Buyer
without any warranty, express or implied, regarding the accuracy, content, or
substance of thereof.
6. SURVEY; TITLE BINDER
Seller, at Seller's expense, shall deliver to Buyer, within
five (5) days after the Effective Date, Seller's current survey of the
Property, dated April 26, 2002 (hereinafter called the "Survey"). Buyer may, at
Buyer's expense, have the Survey updated so that it is prepared in accordance
with the current survey standards adopted by the American Land Title
Association ("ALTA") and the American Congress on Surveying and Mapping
("ACSM"), and sufficient to enable the Title Company to issue a title insurance
policy with extended coverage and which updated Survey shall contain a
certificate in a form reasonably satisfactory to the Title Company and Buyer,
and which shall be signed and sealed by the aforesaid surveyor or engineer. The
metes and bounds description of the Land included with the Survey, once
approved by Buyer and the Title Company, shall be substituted for the legal
description attached as Exhibit "A" hereto and shall be the legal description
attached to or incorporated into the Deed (as hereinafter defined).
Seller, at Seller's expense, shall furnish to Buyer within
five (5) days after the Effective Date a title commitment (hereinafter called
the "Title Binder") issued by the Title
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Company with the Owner's Title Policy to be underwritten by an underwriter
acceptable to Buyer (the "Title Underwriter"), showing title to the Property
and committing to issue the Owner's Title Policy to Buyer pursuant to Paragraph
10(a)(ii) of this Agreement, such Title Binder to specify all exceptions to
title, including, without limitation, easements, liens, encumbrances,
restrictions, conditions, or covenants affecting the Property. If any
exceptions appear on the Title Binder, other than the standard printed
exceptions (which shall be modified as provided in Paragraph 10(a)(ii) of this
Agreement) or if any encroachments, overlapping of improvements, or other
conditions are shown on the Survey that are not acceptable to Buyer, Buyer
shall, within five (5) days after receipt of the last of the Title Binder, the
Survey, and copies of all documents referred to therein, notify Seller in
writing of such fact. Seller shall not be obligated to cure such objections,
other than: (i) mortgages, deeds of trust, or other "monetary" liens affecting
the Property, which were created by, through, or under Seller; (ii) easements,
liens, encumbrances, and other defects in Seller's title voluntarily created by
Seller from and after the Effective Date, which such items shall be released at
Closing. If Seller is unwilling to cure such objections on or before the later
to occur of: (a) two (2) days prior to the expiration of the Information Review
Period, or (b) five (5) days after receipt of such notice (but in all events on
or before the date that is two (2) days prior to Closing), Buyer may at any
time on or before the expiration of the Information Review Period, as its sole
and exclusive remedies, terminate this Agreement by written notice to Seller,
or accept such title as Seller can deliver and, in the case of liens, subtract
the amount of such liens from the Purchase Price. In the event of such
termination, the parties shall have no further right or other obligation
hereunder (other than with respect to obligations hereunder that expressly
survive the termination of this Agreement), and the Earnest Money and accrued
interest thereon shall be returned to Buyer. Those exceptions or title
deficiencies that appear on the Title Binder and any encroachments, overlapping
of improvements, or other conditions that are shown on the Survey and are
accepted by Buyer pursuant to the terms of this Paragraph 6 shall constitute
the "Permitted Encumbrances"; provided, however, the term "Permitted
Encumbrances" shall not include any liens or any other title defects which
Seller is obligated to cure under the terms of this Agreement or agrees in
writing to cure on or before the Closing.
7. COVENANTS OF SELLER
Seller covenants and agrees with Buyer that, between the
Effective Date and the Closing Date:
(a) Seller will not enter into any lease, sublease,
contracts, subcontracts, license, concessions, easements, or other
agreements, either recorded or unrecorded, written or oral affecting
any portion of the property without the prior written approval of
Buyer, such approval not to be unreasonably withheld, other than those
items that are required to preserve the existing building permit for
the Property.
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(b) Seller will not sell, exchange, assign, transfer, convey,
encumber, or otherwise dispose of all or any part of the Property or
any interest therein, or accede to or negotiate for any of the
foregoing.
(c) Seller will not, without the prior written consent of
Buyer, enter into any service, maintenance, or management agreement
with respect to the Property which is not terminable, without penalty
or consideration, on no more than thirty (30) days notice.
8. SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants to Buyer the following:
(a) Seller has received no written notice that the location,
operation, or use of the Property violates any applicable law,
statute, ordinance, rule, regulation, order, or determination of any
governmental authority, or any restrictive covenant or deed
restriction or zoning ordinance or classification affecting the
Property, including, without limitation, all applicable health and
environmental laws and regulations (hereinafter sometimes collectively
called "Applicable Laws").
(b) Seller has not received any written notice that the
Property is currently subject to any existing or pending investigation
or inquiry by any governmental authority or to any remedial
obligations under any Applicable Laws pertaining to health or the
environment ("Environmental Laws"), nor to Seller's knowledge, is any
such investigation or inquiry existing, pending, or threatened.
(c) There are no lease, use, or occupancy agreements by,
through, or under Seller affecting all or any portion of the Property,
and, other than Seller, there are no parties in possession of the
Property, or any portion thereof.
(d) Seller is not a party to, and Seller has not received
written notice of any actual litigation that is pending with respect
to the Property, nor to Seller's knowledge, is there any litigation
that is pending or threatened with respect to the Property (including,
without limitation, any condemnation or notice of condemnation)
affecting or related to the Property.
(e) Seller is a duly formed and validly existing limited
partnership under the laws of the State of Delaware. Seller is
authorized to enter into this Agreement, and the undersigned signatory
party for Seller has been duly authorized to consummate the
transaction contemplated by this Agreement. This Agreement has been
executed by each person or entity that has an ownership interest in
the Property, and there is no requirement that any person or entity
that has not signed this Agreement grant any consent or take any other
action in order to enable Seller
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to convey the Property as contemplated by this Agreement.
(f) There are no written agreements between Seller and any
other person for the sale or other conveyance of the Property, and
Seller has not granted to any person an option to purchase, right of
first refusal or other contractual right to acquire the Property, or
any part thereof, or any interest therein.
The foregoing representations and warranties shall be deemed
to be repeated by Seller at the Closing and shall survive the Closing. For a
period of one (1) year from and after Closing, Seller agrees to indemnify,
defend, and hold Buyer harmless from and against, and to reimburse Buyer with
respect to, any and all claims, demands, causes of action, losses, damages,
liabilities, costs, and expenses (including reasonable attorney's fees and
court costs) of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by Buyer at any time and from time to
time by reason of or arising out of the breach of any representation or
warranty of Seller set forth herein. The phrase "to Seller's knowledge" or
words of similar import shall mean and refer to the actual, current knowledge
of Jon Kennedy, without independent investigation or inquiry.
BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE
CONVEYANCE OF THE PROPERTY SHALL BE SPECIFICALLY MADE "AS-IS" AND "WHERE-IS,"
WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (EXCEPT AS TO ANY
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND AS TO
TITLE AS SET FORTH IN THE SPECIAL WARRANTY DEED), INCLUDING, WITHOUT
LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR
MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER. BUYER FURTHER ACKNOWLEDGES
THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND CLOSING DOCUMENTS,
NEITHER SELLER NOR ANY OF ITS AGENTS HAS MADE, AND THAT SELLER AND ITS AGENTS
SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES (EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE CLOSING DOCUMENTS), PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER NOT
MADE IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO,
CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR CONDITION OF
THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (ii)
THE PROPERTY'S SUITABILITY FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE
CONDUCTED THEREON, (iii) THE COMPLIANCE OF OR BY THE PROPERTY WITH ANY LAWS,
RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY, (iv)
THE PROPERTY'S HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR (v) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY, AND SPECIFICALLY, THAT NEITHER SELLER NOR ANY OF ITS AGENTS
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HAS MADE, AND THAT SELLER AND ITS AGENTS SPECIFICALLY NEGATE AND DISCLAIM
(EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE CLOSING DOCUMENTS), ANY
REPRESENTATIONS OR WARRANTIES REGARDING THE PROPERTY'S COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS.
BY EXECUTION OF THIS AGREEMENT, BUYER ACKNOWLEDGES THAT, EXCEPT FOR
THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY CONTAINED IN THIS
AGREEMENT AND ANY INSTRUMENTS DELIVERED BY SELLER AT CLOSING, BUYER HAS RELIED
AND SHALL RELY SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER, ITS AGENTS OR CONTRACTORS.
SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR THE
OPERATION THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF SELLER
(EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY INSTRUMENT DELIVERED
BY SELLER AT CLOSING).
9. CONDEMNATION
Promptly upon commencement of condemnation proceedings in any part of
the Property by an appropriate governmental authority, Seller will notify Buyer
of the pendency of such proceedings. Subject to the provisions at the end of
this sentence, in the event of the condemnation of any portion of the Property
or the sale of any portion of the Property in lieu of condemnation, this
Agreement shall remain in full force and effect, and in such event Seller shall
assign to Buyer any and all claims for the proceeds of such condemnation or
sale, and Buyer shall take title to the remainder of the Property with the
assignment of such proceeds and subject to such condemnation and without
reduction in the Purchase Price; provided, however, that if after such
condemnation or conveyance in lieu thereof the remainder of the Property would
no longer be suitable for Buyer's purposes, in Buyer's sole and absolute
discretion, then the Buyer may terminate this Agreement by notice in writing to
Seller within ten (10) days following notice in writing by Seller of such
condemnation of the Property, in which event the parties shall have no further
rights or obligations hereunder, and the Earnest Money shall be returned to
Buyer. If Buyer does not elect to terminate within said ten (10) day period
following such notice by Seller, Buyer shall be deemed to have waived all
rights to terminate pursuant to this provision and this Agreement shall remain
in full force and effect.
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10. CLOSING
Provided that all conditions precedent to the Closing have
been satisfied, and this Agreement has not otherwise been rightfully terminated
pursuant to its terms, the closing of the conveyance and purchase of the
Property (herein called the "Closing") shall occur on or before December 15,
2002 (the "Closing Date"). The Closing shall take place at the offices of the
Title Company. At the Closing, the following shall occur:
(a) Seller shall deliver to Buyer the following:
(i) a Special Warranty Deed (the "Deed") conveying
fee simple title to the Property to Buyer free of any
exceptions other than the Permitted Encumbrances;
(ii) at Seller's expense, an ALTA extended coverage
owner's title insurance policy issued by the Title
Underwriter in the amount of the Purchase Price insuring
Buyer that Buyer holds fee title to the Property subject only
to (a) the standard printed exceptions including the
following modifications to the standard typed or printed
exceptions in the Title Binder: (1) the restrictive covenants
exception shall be deleted if the Title Binder does not list
any restrictive covenants as exceptions to title; (2) the
standard exception for current taxes shall except only to
taxes for the year in which the Closing occurs and shall
indicate that such taxes are not yet due and payable; (3) the
exception for any discrepancies, conflicts, encroachments, or
any overlapping of improvements shall be deleted; (4) the
exception for rights of tenants and other parties in
possession shall be deleted (other than with respect to
Seller's rights as a tenant in possession under the Lease
(hereinafter defined); (5) the standard survey exception
shall be deleted and replaced with those items (if any) that
are specifically disclosed by the Survey, and (6) the
mechanics lien exception shall be deleted; and (b) the
Permitted Encumbrances (the "Title Policy").
(iii) an assignment of all Intangibles;
(iv) all licenses, permits, and governmental
certificates and approvals relating to the Property, to the
extent the same are assignable;
(v) Intentionally Deleted;
(vi) an affidavit from Seller and any other parties
required pursuant to Section 1445 of the Internal Revenue
Code and/or regulations relating thereto stating, under the
penalty of perjury, (1) that neither Seller
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nor any other party so swearing is a foreign person, (2) the
U.S. Taxpayer identification number of Seller and such other
parties, if any, and (3) such other information as may be
required by regulations enacted by the U.S. Department of the
Treasury in connection with Section 1445 of the Internal
Revenue Code. An executed counterpart of this affidavit will
be furnished to the Internal Revenue Service and Buyer at
Closing;
(vii) Intentionally Deleted;
(viii) such evidence as may be reasonably required
by Buyer or the Title Company evidencing the status and
capacity of Seller and the authority of the person or persons
who are executing the various closing documents on behalf of
Seller in connection with this Agreement;
(ix) such affidavits, indemnities, and other
documents as the Title Company may require from Seller as a
condition to issuing the Owner's Title Policy in accordance
with Paragraph 10(a)(ii), including a "Mechanics Lien
Affidavit" and a so-called "Seller's Affidavit" or "Gap
Affidavit", in each case in form and substance reasonably
acceptable to Seller; and
(x) Such other documents as Seller and Buyer may
have agreed to deliver at the Closing. All closing documents
shall be prepared by Buyer and shall be consistent with this
Agreement and with custom and usage for similar type
transactions.
(b) Buyer shall pay the Purchase Price to the Title Company
in the form of immediately available funds.
(c) General real estate taxes for the then current year
relating to the Property shall be prorated as of the Closing Date. If
the Closing shall occur before the tax rate is fixed for the then
current year, the apportionment of taxes shall be made on the basis of
the tax rate for the immediately preceding year applied to the latest
assessed valuation of the Property, provided that, if the taxes
actually due for the current year are more or less than the taxes for
the preceding year, then within thirty (30) days after the issuance of
the then current year's tax bill, Seller and Buyer shall adjust the
proration of such taxes and Seller or Buyer, as the case may be, shall
pay to the other any amount required as a result of such adjustment;
this covenant shall not merge with the deed delivered hereunder but
shall survive the Closing. All special taxes or assessments assessed
prior to the Closing Date shall be paid by Seller, and those assessed
after the Closing Date shall be paid by Buyer.
(d) All income from, and expenses of, the Property, if any,
including but not limited to public utility charges, interest,
maintenance charges, and service
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charges, shall be prorated as of the Closing Date. To the extent that
information for any such proration is not available at the Closing,
the parties shall effect such proration within ninety (90) days after
Closing. If, however, the proration of any item of income or expense
cannot be made within ninety (90) days after the Closing, then the
proration of such item shall be made within ten (10) days after the
information relating to such item becomes available. The provisions of
this subparagraph (d) shall survive the Closing.
(e) Possession of the Property shall be delivered to Buyer.
(f) Any escrow fee charged by the Title Company shall be paid
one-half (1/2) by Seller and one-half (1/2) by Buyer. Seller shall pay
the fee for recording the warranty deed and any other documents
recorded in this transaction, the cost of the Survey, the premium for
the Owner's Title Policy and for any required endorsements thereto,
and the costs and fees of the Title Company incurred in connection
with the issuance of the Title Binder and the Owner's Title Policy.
Each party shall be responsible for the payment of its own attorney's
fees incurred in connection with this transaction. Buyer shall be
responsible for any and all documentary stamp taxes, real estate
transfer taxes, or similar fees or taxes on the Deed delivered at
Closing. Buyer shall be responsible for any and all documentary stamp
taxes, real estate transfer taxes, or similar fees or taxes on any
mortgage obtained by Buyer at Closing Any other costs payable at the
Closing shall be allocated to Buyer and Seller as is customary in the
county in which the Property is located.
(g) Buyer and Seller shall enter into a lease, in the form
attached hereto as Exhibit "B" (the "Lease"), pursuant to which Buyer
shall lease to Seller, and Seller shall lease from Buyer, all of the
Land together with all future improvements to be constructed on the
Land, as more particularly set forth in the Lease.
11. REMEDIES
(a) Seller shall deemed to be in default under this Agreement
upon the occurrence of any one or more of the following events: (i) any of
Seller's representations or warranties is or becomes untrue in any material
respect at any time on or before Closing; or (ii) Seller should fail or refuse
to perform any of Seller's obligations hereunder, including, without
limitation, Seller's obligations at Closing under Paragraph 10 hereof. If
Seller is deemed to be in default under this Agreement, then Buyer may, at its
option, exercise either of the following remedies: (i) terminate this Agreement
and obtain a refund of the Earnest Money, with interest accrued thereon; or
(ii) enforce specific performance.
(b) If Seller shall have complied with all Seller's covenants
and obligations hereunder and all the conditions of Buyer's obligations
hereunder shall have been timely fulfilled
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but Buyer defaults and fails and refuses to close the purchase of the Property
as herein contemplated, Seller's sole and exclusive remedy shall be to receive
the Earnest Money; it being acknowledged and agreed by Seller and Buyer that
the Earnest Money to which Seller may be entitled under this Paragraph 11(b) is
a reasonable forecast of just compensation for the harm that could be caused by
Buyer's default, that the harm that could be caused to Seller by such default
is one that is difficult or impossible to accurately ascertain or predict, and
that the payment of the Earnest Money to Seller upon Buyer's default shall
constitute full satisfaction and accord of Buyer's obligations under this
Agreement. Seller hereby waives and releases any claim for specific performance
and all claims or remedies other than Seller's right to receive the Earnest
Money in accordance with the terms of this Paragraph 11(b).
12. BROKER
Each party hereto represents to the other that such
respective party has not authorized any broker or finder to act on its behalf
in connection with the sale and purchase hereunder, and each party hereto
further represents to the other that no commission, brokerage fee, or other sum
is payable to any broker, finder or other party in connection with this
Agreement or the consummation of the transaction contemplated hereby. Each
party hereto agrees to indemnify, defend, and hold harmless the other party
from and against any and all claims, losses, damages, costs, or expenses
(including, but not limited to, reasonable attorney's fees) of any kind or
character arising out of or resulting from any agreement, arrangement, or
understanding alleged to have been made by such party with any broker or finder
in connection with this Agreement or the transaction contemplated hereby. This
Paragraph 12 shall survive the Closing or any earlier termination of this
Agreement.
13. NOTICE
Any notice or communication required or permitted hereunder
shall be given in writing, sent by (a) personal delivery, (b) overnight courier
or delivery service with proof of delivery, (c) United States mail, postage
prepaid, registered or certified mail, or (d) prepaid telegram or telecopy
(provided that such telegram or telecopy is confirmed by mail in the manner
previously described), addressed as follows:
To Seller: EGL Eagle Global Logistics, L.P.
15350 Vickery Drive
Houston, TX 77032
Attn: Sr. Vice Pres., Corp, Admin.
Telephone: (281) 618-3303
Facsimile: (281) 618-3304
Page 12
With a copy to
(which shall not
constitute notice): Mr. William C. Stroh
Baker & Hostetler, LLP
1000 Louisiana, Suite 2000
Houston, Texas 77002
Telephone: (713) 646-1369
Facsimile: (713) 751-1717
To Buyer: McMillan Investment Company, Ltd.
3003 W. Alabama
Houston, Texas 77098
Attn: Mr. Dan M. Moody, III
Telephone: (713) 773-5540
Facsimile: (713) 773-5556
With a copy to
(which shall not
constitute notice): Mr. E. Scot Dixon
Haynes and Boone, LLP
1000 Louisiana, Suite 4300
Houston, Texas 77002
Telephone: (713) 547-2260
Facsimile: (713) 236-5639
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party in a notice sent in
accordance with these notice provisions. Any such notice or communication shall
be deemed to have been given at the time of personal delivery or, in the case
of certified or registered mail, two (2) days after deposited in the custody of
the United States Postal Service, or in the case of overnight courier or
delivery service, as of the date of first attempted delivery at the address and
in the manner provided herein, or, in the case of telegram or telecopy, upon
receipt.
14. MISCELLANEOUS
(a) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their heirs, successors, and assigns.
Whenever in this Agreement a reference is made to any of the parties hereto,
such reference shall be deemed to include a reference to the heirs, legal
representatives, successors, and assigns of such parties. Buyer shall have the
right to assign this Agreement, without obtaining Seller's prior written
consent, to any entity that is controlled by Buyer and/or by the principals of
Buyer; provided notice of such assignment is promptly
Page 13
delivered to Seller, and provided, further, that such assignee agrees in
writing to assume the obligations and liabilities of "Buyer" hereunder.
Assignment to any other party without Seller's prior written consent, which
shall not be unreasonably withheld, conditioned, or delayed, is prohibited and
shall be considered null and void, ab initio. No assignment of the interest of
"Buyer" under this Agreement shall relieve Buyer of its obligations and
liabilities hereunder.
(b) The titles of the Articles of this Agreement shall have
no effect and shall neither limit nor amplify the provisions of the Agreement
itself.
(c) This Agreement constitutes the entire agreement between
the parties and supersedes and replaces all prior and contemporaneous
agreements, representations, and understandings between Buyer and Seller,
whether written or oral. This Agreement shall not be amended or changed except
by written instrument signed by the party to be charged therewith.
(d) Time is of the essence with respect to the various times
for performance by Seller and Buyer.
(e) This Agreement is the result of negotiations between the
parties and, accordingly, shall not be construed for or against either party
regardless of which party drafted this Agreement or any portion thereof.
(f) It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture, or
other similar arrangement between Seller and Buyer. No term or provision of
this Agreement is intended to, or shall, be for the benefit or any person,
firm, corporation, or other entity not a party hereto (including, without
limitation, any broker), and no such party shall have any right or cause of
action hereunder.
(g) The terms and provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
and applicable federal law.
(h) Except as herein expressly provided, no waiver by a party
of any breach of this Agreement or of any warranty or representation hereunder
by the other party shall be deemed to be a waiver of any other breach by the
other party (whether preceding or succeeding and whether of the same or similar
nature), and no acceptance of payment or performance by a party after any
breach by the other party shall be deemed to be a waiver of any breach of this
Agreement or of any representation or warranty hereunder by such other party,
whether the first party knows of such breach at the time it accepts such
payment or performance. No failure or delay by a party to exercise any right it
may have by reason of the default of the other party shall operate as a waiver
of default or modification of this Agreement or shall prevent the exercise of
any right by the first party while the other party continues to be so in
default.
(i) Each section of this Agreement constitutes a separate
agreement between the parties. In the event that any provision of this
Agreement, which would not deprive the parties, or
Page 14
either of them, of the benefit of the bargain, is deemed to be illegal,
invalid, or unenforceable on its face or as applied, then such provision shall
be deemed severed herefrom to the extent illegal, invalid, and unenforceable.
(j) If any date set forth in this Agreement as the last date
for the taking of any action hereunder shall fall on a Saturday, Sunday, or a
federal holiday (a federal holiday being a day on which the United States
Postal Service does not deliver first class mail), then the last date for
taking such action shall be extended to the next succeeding day that is not a
Saturday, Sunday, or federal holiday.
(k) The date upon which Buyer and the Title Company each
receives a counterpart original of this Agreement duly executed by Seller and
Buyer and the Title Company receives the Earnest Money shall be the "Effective
Date" of this Agreement for all purposes.
(l) If more than one party constitutes "Seller," as that term
is defined in this Agreement, then all parties constituting Seller shall be and
are jointly and severally liable for each and every obligation of Seller, of
whatever nature, under the terms of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
Page 15
EXECUTED by Buyer this ___ day of ___________________, 2002.
MCMILLAN INVESTMENT COMPANY,
LTD., a Texas limited liability company
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
"BUYER"
EXECUTED by Seller this ____ day of ___________________,
2002.
EGL EAGLE GLOBAL LOGISTICS, LP
By: EGL Management, LLC General
Partner
By:
---------------------------------------
Jon Kennedy, Senior Vice
President, Corporate
Administration
"SELLER"
Page 16
RECEIPT OF TITLE COMPANY
The undersigned Title Company hereby acknowledges receipt of
(1) a counterpart of this Agreement, and (2) the Earnest Money. The Title
Company agrees to hold and disburse the Earnest Money in accordance with the
provisions of this Agreement. The Title Company further agrees that it shall be
responsible for all reporting to the Internal Revenue Service relating to the
transaction contemplated by this Agreement that is required under Section 6045
of the Internal Revenue Code of 1986, as amended.
EXECUTED as of the day of _______________, 2002.
-----
PARTNERS TITLE COMPANY
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
"TITLE COMPANY"
Page 17
03/24/03
SCHEDULE OF EXHIBITS
Exhibit "A" - Land
Exhibit "B" - Form of Lease
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