Attached files
*AGREEMENT PREVIOUSLY
FILED*
*RE-FILED TO INCLUDE ALL
EXHIBITS, SCHEDULES, AND ATTACHMENTS*
PURCHASE
AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT (as amended from time to time, this “Agreement”) is
entered into as of the 3rd day of April, 2006, by and between COVENANT TRANSPORT, INC., a
Tennessee corporation (“Seller”); and CT CHATTANOOGA TN, LLC, a
Delaware limited liability company (the “Buyer”).
RECITALS
A. Seller
holds title to the Property (as hereinafter defined).
B. Buyer
desires to purchase the Property (as hereinafter defined) for the price defined
herein, and lease the Property (as hereinafter defined) back to Seller, as
tenant, and upon the terms hereinafter set forth.
Now,
therefore, in consideration of the mutual covenants herein contained and other
good and valuable consideration, the parties, intending to be legally bound,
agree as follows:
1. Sale of
Property. Seller agrees to sell the property located in
Tennessee identified on Exhibit A (the “Property”) to Buyer,
and Buyer agrees to purchase from Seller the Property, all on the terms and
conditions set forth herein, including the following rights:
(a) Fee simple
title in and to the parcel of real property (the land constituting such parcel
being the “Land”), as more
particularly described on Exhibit A attached
hereto, together with all easements, rights-of-way, and privileges appurtenant
thereto and all buildings and improvements situated thereon (collectively, the
“Improvements”
and such parcel, including the Land and Improvements shall be called the “Parcel”);
(b) All right,
title and interest of Seller in and to the lighting, electrical, mechanical,
plumbing and heating, ventilation and air conditioning systems permanently
affixed to and used in connection with the Land and the Improvements, including
all elevators, pipings, conduits, ducts, partitions, boilers, compressors and
furnaces, and all other fixtures (the “Fixtures”) attached
or appurtenant to the Land in such a manner as to constitute real estate under
applicable state law; and
(c) Seller’s
copies of all original and supplemental surveys, structural and engineering
reports, geo-technical reports, plans, specifications, operating manuals,
warranties and guarantees covering the Improvements and the Fixtures that are
currently in the possession of Seller, or its subsidiaries; and Seller’s right,
title and interest in all such assignable agreements, and any assignable
licenses or permits relating to the ownership or operation of the Property
(except those required to be maintained by Seller or its subsidiary for the
continued operations of its business at the Property).
2. Price. The
purchase price to be paid by Buyer to Seller for the Property (the “Purchase Price”)
shall be $30,000,000. Subject to the terms and conditions set forth
in this Agreement, the Purchase Price, less any prorations to be credited to
Buyer, plus any prorations to be credited to Seller, shall be paid in
immediately available funds at Closing.
3. Seller’s Deliveries; Third
Party Reports. Seller has provided to Buyer the materials
listed on Schedule
1 attached to this Agreement (which, together with all other information
and materials relating to the Parcel that is supplied to Buyer by Seller or any
of its subsidiaries or at Seller’s expense, are hereinafter referred to as the
“Seller
Information”). Seller has ordered a new owner’s title
insurance commitment (the “Commitment”) in the
name of Buyer from First American Title Insurance Company with respect to the
Property and an updated ALTA as-built survey for the Parcel (the “New
Survey”). If the transaction described in this Agreement is
not consummated for any reason, Buyer shall deliver to Seller all Seller
Information in Buyer’s possession.
4. Inspection
Period. Buyer shall have until, but no later than, the Date of
Closing, as defined below (the “Inspection Period”)
to conduct in regard to the Parcel such tests, feasibility studies, surveys,
inspections and reviews of the due diligence materials provided by Seller as
Buyer chooses to conduct, and to review title, survey and environmental
matters. Buyer shall notify Seller in writing as to the date on which
Closing will take place (the “Date of Closing”),
which date shall be no later than April 3, 2006. In the event that
Buyer disapproves of any matters affecting the Parcel in accordance with the
terms hereof, and Seller does not commit to resolve the same to Buyer’s
satisfaction, Buyer may terminate this Agreement by submitting written notice of
termination to Seller on or before the Date of Closing.
5. Closing. The
closing of the sale of the Property (the “Closing”) shall be
held, subject to the fulfillment of all conditions to Buyer’ obligations to
close or waiver thereof by Buyer, on the Date of Closing. At Closing,
Seller shall execute and deliver to First American Title Insurance Company, 6142
Shallowford Road, Suite 104, Chattanooga, Tennessee 37421, Attn: Kelly
Komorowski (“Escrow
Agent”) or to Buyer’ counsel, the following with respect to each
Parcel:
(a) A warranty
deed in customary form for the jurisdiction in which such Parcel is located
conveying good and marketable fee simple title to the Land and the Improvements
to Buyer, and, if the related Property includes any personal property, a bill of
sale and assignment conveying good and marketable title to all such personal
property, in each case free and clear of all liens, charges, encumbrances,
easements, covenants and restrictions except for (i) unpaid taxes not yet due
and payable, (ii) matters shown on the surveys provided to Buyer, unless Buyer
has objected thereto as set forth in this Agreement, and (iii) matters of
record, unless Buyer has objected thereto as set forth in this
Agreement;
(b) copies of
all surveys, plans, specifications, structural and engineering reports, manuals,
warranties and guarantees described in paragraph 1(c) to the
extent in Seller’s, or Seller’s subsidiary’s, possession;
(c) A fully
executed original counterpart of a lease substantially in the form attached
hereto as Exhibit
B (the “Lease”) and a
memorandum of lease in recordable form, and a lease guaranty in the form
attached hereto as Exhibit C (the “Lease Guaranty”),
duly executed by Seller’s parent, Covenant Transport, Inc., a Nevada corporation
(the “Lease
Guarantor”);
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(d) An
affidavit stating that Seller is not a “foreign person” within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986;
(e) Any
customary affidavits reasonably required by the title insurance company to issue
its title policy(ies) to Buyer;
(f) All
other documents affecting title to and possession of the Property and necessary
to transfer or assign the same to Buyer, free and clear of all liens, security
interests, charges and encumbrances, except the Permitted Exceptions (as defined
in Paragraph
9);
(g) A
copy of a resolution for Seller authorizing the sale and leaseback of the
Property in accordance with the terms of this Agreement, and further authorizing
the execution of all closing documents and the performance of all other acts
necessary to close the sale and leaseback of the Property in accordance with the
terms of this Agreement, and a copy of a resolution of Lease Guarantor
authorizing the execution, delivery and performance of the Lease
Guaranty;
(h) A
secretary’s certificate relating to incumbency and organizational documents for
Seller and Lease Guarantor;
(i) A
copy of the certificate of occupancy or legal equivalent thereof for the
Parcel;
(j) Insurance
certificates as required under the Lease for the Parcel;
(k) An
opinion of counsel for Seller and Lease Guarantor covering such matters as Buyer
may reasonably request; and
(l) Other
documents and certificates reasonably requested by Buyer.
In
addition, Buyer’s obligation hereunder to purchase the Property shall be
conditioned on the receipt by Buyer of the following, each of which shall be in
form and substance satisfactory to Buyer:
(a) An
appraisal for the Parcel that meets the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 and which shows that
the fair market value of the Parcel is not less than the Purchase Price
therefor, plus any transaction costs funded by Buyer;
(b) A
Phase I Environmental Assessment for the Parcel and, if recommended in such
Phase I Environmental Assessment, a Phase II Environmental Assessment by an
environmental services firm satisfactory to Buyer; and
(c) A
property condition report for the Parcel conducted by an engineering firm
satisfactory to Buyer.
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At Closing, Buyer shall execute and/or
deliver to Seller (i) an original of the Lease and the memorandum of Lease, (ii)
a transfer tax declaration (or similar instruments as may be required by law),
(iii) the Purchase Price for such Parcel, and (iv) any other document or
instrument reasonably required by Seller.
Seller
shall pay 100% of the cost of all recordation, transfer and intangible taxes
imposed on the warranty deed for the Property and the Lease and the cost of
recording any title curative documents, including, without limitation,
satisfactions of deeds to secure debt, mortgages and deeds of trust, and
financing statement terminations. At Closing, Seller shall pay for
(i) Buyer’s owner’s title insurance premium (including all endorsements
requested by Buyer that are legally available in the related jurisdiction) for
the policy issued pursuant to the Commitment, and title search costs, (ii) the
cost of the New Survey, (iii) the cost of the environmental audits, the
appraisal and the property condition report conducted on behalf of Buyer for the
Parcel, (iv) all costs and fees of the Escrow Agent, and (v) Seller’s legal
expenses. Buyer shall be responsible for its own legal expenses
incurred in connection with the Closing. The Closing and delivery of
all such documents shall take place as shall be mutually agreeable to the
parties. Seller agrees to deliver possession of the Parcel to Buyer
on the Date of Closing, subject only to rights of Seller, as tenant, under the
Lease.
6. Lease. The
Parcel shall be leased to Seller under a net lease in form substantially
identical to that attached hereto as Exhibit
B.
7. Termination. If
Closing does not occur on or before the Date of Closing, time being of the
essence, and (i) all of the conditions precedent to Buyer’ obligation to close
set forth in this Agreement have been satisfied and (ii) Seller is not in breach
of any of its obligations to Buyer contained in this Agreement, Seller may
terminate this Agreement upon written notice to Buyer.
8. Income and Expenses of the
Property. Through the Date of Closing, Seller shall pay when
due any payments of principal and interest secured by any liens or encumbrances
on the Property. Seller shall be responsible for all expenses of the
Property, and shall be entitled to all income from the Property, attributable to
the period prior to Closing. Seller agrees that all expenses related
to the Property or otherwise accrued for the period prior to the Date of Closing
shall be paid in full by Seller when due.
Seller
shall indemnify, defend and hold Buyer harmless from and against any costs,
expenses, penalties or damages, including reasonable attorneys’ fees, resulting
from any failure by Seller to timely pay or cause to be paid any of the items
described in this paragraph 8 that are
attributable to the period on or before the Date of Closing.
9. Title Examination; Title
Defects. The matters listed on Schedule 2 attached
hereto are “Permitted
Exceptions.” From the date of this Agreement (the “Effective Date”)
Seller shall not consent to, or permit to exist, any encumbrances, easements or
other restrictions to be placed on or granted with respect to the Parcel, other
than any matters consented to by Buyer in writing and the Permitted Exceptions,
without the prior written consent of Buyer (such encumbrances prohibited hereby
being “Seller
Encumbrances”).
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The title
exceptions set forth in the Commitment for the Parcel shall reflect only the
Permitted Exceptions and any title matters consented to in writing by
Buyer. The Commitment shall include such endorsements as may be
reasonably requested by Buyer and that are available in the applicable
jurisdiction. Seller shall have obtained the commitment of the title
company to insure the so-called “gap period” at Closing. Seller shall be
responsible for satisfying all the requirements of the Commitment on or before
the Date of Closing.
At any
time before Closing, Buyer may notify Seller of any Seller Encumbrance or other
additional title matter affecting the Parcel that Buyer is purchasing that is
not a Permitted Exception or any matter shown on the survey of the Parcel, in
each case that is not acceptable to Buyer (such being a "Title
Defect"). Seller shall have up to ten (10) business days after
receipt of such notice to cure such Title Defect or to provide evidence
reasonably satisfactory to Buyer that such Title Defect will be cured or
"insured over" at Closing, or to provide notice to Buyer that Seller will not
cure such Title Defect. If requested by Seller, the Closing shall be
extended for up to ten (10) business days in order to permit Seller sufficient
time to remove such Title Defect. If Seller fails or refuses to cure
such Title Defect or to provide such evidence within the cure period described
above, then Buyer may terminate this Agreement upon written notice to Seller of
its election to so terminate.
10. Environmental Defects;
Property Condition Defects. In the event that Buyer discovers
any contamination or pollution on the Parcel or any violation of any
environmental law, or any noncompliance by Seller or its affiliates with any
recommendations set out in the environmental audits conducted on behalf of Buyer
by an environmental firm selected by Buyer (the “Environmental
Reports”), or any other condition or circumstance not acceptable to Buyer
with respect to the environmental condition of the Parcel (each such defect or
item of noncompliance being an "Environmental
Defect"), then Buyer may terminate this Agreement upon written notice to
Seller of its election to so terminate. In the event that Buyer
discovers any deferred maintenance or other unsatisfactory condition with
respect to the Parcel (each such item, a “Condition Defect”),
Buyer may notify Seller thereof and Seller shall have up to ten (10) business
days after receipt of such notice to cure such Condition Defect or to provide
evidence reasonably satisfactory to Buyer that such Condition Defect will be
cured in a time frame and in a manner reasonably satisfactory to Buyer, or to
provide notice to Buyer that Seller will not cure such Condition
Defect. If requested by Seller, the Closing shall be extended for up
to ten (10) business days in order to permit Seller sufficient time to cure such
Condition Defect. If Seller fails or refuses to cure such Condition
Defect or to provide such evidence within the cure period described above, then
Buyer may terminate this Agreement upon written notice to Seller of its election
to so terminate.
11. Inspections. Buyer
and its representatives shall have the right from and after the Effective Date
to enter upon the Property during Seller’s normal business hours for the purpose
of conducting such inspections, tests and investigations of the Property as it
may desire. Notwithstanding the foregoing, Buyer (a) shall not
unreasonably interfere with, interrupt or disrupt the operation of Seller’s
business on the Property, (b) shall not cause any construction, mechanic’s or
materialman’s liens or other liens to attach to the Property or any portion
thereof by reason of the performance of any work or the purchase of any
materials by Buyer or any other party in connection with the studies or tests
conducted on the Property, (c) shall give Seller not less than 24 hours notice
prior to entry onto the Property by Buyer (unless such notice is waived by
Seller) or any other party directed by Buyer and shall permit Seller to have a
representative present during all investigations and inspections conducted with
respect to the Property, and (d) shall take all reasonable actions to ensure
that all actions taken in connection with the investigations and inspections of
the Property, and all equipment, materials and substances generated, used or
brought onto the Property pose no threat to the safety of persons or the
environment and cause no material damage to the Property, Seller or other
persons. Buyer agrees to indemnify and hold Seller harmless from and
against any liens, claims, actions, charges, damages, expenses (including,
without limitation, reasonable attorneys’ fees and court costs) and liabilities
incurred through, and agrees to make any repairs to the Property arising out of
damage resulting from (and Seller agrees to provide Buyer and its agent,
contractors and representative access to the Property to make such repairs), the
exercise by Buyer and its agents, contractors, or representatives, of the
privilege granted in this paragraph, except to the extent attributable to
Seller’s, or Seller’s affiliate’s, gross negligence or willful
misconduct. Seller agrees to promptly notify Buyer of any such claim
or potential claim, and agrees that Buyer shall have the right to control the
defense of any such claim. The obligations under this paragraph 11 shall
survive termination of this Agreement.
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12. Broker’s/Advisor’s
Fees. Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller, that no brokers' or real estate commissions
or similar fees will be due as a result of Seller’s or Buyer’s, as the case may
be, retention of, or obligation to, any broker or agent in connection with
Closing the sale of the Property. Each party agrees to indemnify the
other against any cost and expense (including reasonable attorneys' fees)
incurred by the other as a result of the untruthfulness or inaccuracy of the
foregoing representation.
13. Representations, Warranties
by Seller. Seller represents to Buyer that:
(a) Seller
has all requisite power and authority to execute this Agreement, the Lease, the
Closing Documents listed in paragraph 5 and all
other documents required to be delivered by Seller, and to assume and perform
all of its obligations under this Agreement, the Lease and such Closing
Documents. The execution of this Agreement and the Lease by Seller,
and the performance by Seller of its obligations hereunder and thereunder, do
not require the consent of any third party, including any governmental
authority.
(b) The
execution and delivery of this Agreement and the Lease, and the performance by
Seller of its obligations hereunder and thereunder, have been duly authorized by
such corporate action as may be required, and the execution and delivery of this
Agreement and the Lease, and the sale and leaseback of the Property do not and
will not violate, or create a lien pursuant to, the organizational documents of
Seller, any judgment, order, agreement, indenture or contract to which Seller is
a party, or any law, ordinance, rule or regulation applicable to Seller, or by
which Seller is bound. Upon execution by Seller, this Agreement, the
Lease and the other documents and agreements to be executed by Seller in
connection with the transactions contemplated by this Agreement, shall
constitute the legal, valid and binding obligations of Seller, enforceable
against Seller in accordance with their respective terms, subject to general
equitable principles and to applicable bankruptcy, insolvency, reorganization
and similar laws affecting the enforcement of creditors’ rights
generally.
(c) Seller
is a corporation duly organized, validly existing and in good standing under the
laws of Tennessee. Seller has full power and authority to own, sell
and lease the Property and enter into this Agreement and the Lease.
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(d) There
will be no leasing commissions payable with respect to the Lease.
(e) There
shall be no service, maintenance, property management, leasing or other
contracts affecting the Property in existence as of the Date of Closing to which
either Buyer or the Property shall be bound or be subject after the Closing,
except for those that have been disclosed in writing by Seller to Buyer and (i)
which will be the obligations of Seller, as tenant under the Lease (and not
obligations of Buyer), and (ii) which are terminable by Buyer without penalty or
cost on no more than thirty (30) days’ notice. Neither Seller nor the
Property is subject to any obligation or agreement, including any right of first
refusal, which could prevent Seller from completing the sale of the Property to
Buyer under this Agreement.
(f) There
is no action, suit, proceeding, litigation, administrative agency action,
condemnation proceeding or proceeding of any kind pending or, to Seller’s
knowledge, threatened against Seller affecting or questioning Seller’s title to,
right to sell or use, maintenance or operation of the Property, including any
requests for public dedication, nor does Seller know of any basis for any such
action. Seller has received no written notice from any governmental
agency of any violation by Seller of any law, rule or regulation with respect to
Seller’s ownership, use, occupancy maintenance or operation of the
Property.
(g) To
Seller’s knowledge, (1) the Property does not contain any “Hazardous Materials”
(as defined below) in violation of any applicable “Environmental Laws” (as
defined below), (2) the Property is not subject to federal, state or local
regulations or liability because of the presence of stored, leaked, spilled or
disposed petroleum products, waste materials or debris, underground storage
tanks, “PCBs” or PCB items (as defined in 40 C.F.R. §761.3), “asbestos” (as
defined in 40 C.F.R. §763.63), or the past or present accumulation, treatment,
storage, disposal, spillage or leakage of any Hazardous Materials; (3) no
portion of the Land has been used for the disposal of Hazardous Materials nor
have any wetlands or tidal waters, as those terms are defined in 33 C.F.R.
§328.3 been filled in violation of any Environmental Laws; and (4) no Hazardous
Materials have been generated, treated, stored, recycled, transported, released,
discharged, emitted, disposed of or otherwise handled at, on or under the
Property except in de minimis quantities stored, used and disposed of in
accordance with applicable Environmental Laws. Seller further
represents to Buyer that the Property shall be maintained in the condition
represented above through the Date of Closing. As used in this paragraph 14(g), the
term “Hazardous
Materials” shall mean any contaminant, oil, petroleum or petroleum
by-product, asbestos or asbestos-related products, hazardous wastes, hazardous
substances, hazardous materials, toxic substances, hazardous air pollutants or
toxic pollutants, as those terms are defined in Environmental
Laws; the term “Environmental Laws”
shall mean the Resource Conservation and Recovery Act (42 U.S.C.A. §§6901 et seq.), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.A.
§§9601 et seq.), the
Hazardous Materials Transportation Act (42 U.S.C.A. §§1801 et seq.), the Toxic
Substances Control Act (15 U.S.C.A. §§2601 et seq.), the Clean Air Act
(42 U.S.C.A. §§7401 et
seq.), and the Clean Water Act (33 U.S.C.A. §§1251 et seq.), any amendments
thereto, and any regulations promulgated pursuant thereto, and any other
federal, state or local laws dealing with the environment, health or safety
related to the environment or any other state or local law, regulation or
ordinance relating to the foregoing matters.
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(h) All
buildings and improvements on the Land constituting a portion of the Property
fully conform with all applicable zoning ordinances and regulations (as modified
by any “special exceptions” or “special use permits” or the like), building,
health, fire and safety codes and restrictions and other laws, ordinances, rules
and regulations except to a de minimis extent not materially and adversely
affecting the use, occupancy, maintenance, ownership, marketability, operation,
value or mortgageability of the Property, and are located entirely within the
boundaries of the Land.
(i) No
assessments or charges for any public improvements have been made against the
Property which remain unpaid, except as may be shown in the title commitment for
the Property, and Seller has no knowledge of any plans for improvements which
might give rise to a special assessment.
Seller
hereby agrees that the truthfulness of each of the foregoing representations is
a condition precedent to the performance by Buyer of its obligations under this
Agreement. Upon the material breach by Seller of any representation
made in this Agreement or the failure to occur of any condition to Buyer’s
obligation to Close, and if Seller has failed to cure such breach or condition
within ten (10) business days of receipt of written notice of such breach or
condition from Buyer, Buyer may, at its option prior to the Date of Closing,
terminate this Agreement.
15. Representations, Warranties
by Buyer. Buyer represents to Seller that Buyer has all
requisite power and authority to execute this Agreement and the Lease, that the
execution and delivery of this Agreement and the Lease, and the performance by
Buyer of its obligations hereunder and thereunder have been duly authorized by
such action as may be required, that no further action or approval is required
in order to constitute this Agreement as a binding and enforceable obligation of
Buyer, and that Buyer is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
16. Defaults. Upon
the breach by Seller of any of the representations contained in this Agreement,
or the default by Seller in the performance of any other obligation of Seller
set forth in this Agreement, and, in each case, Seller has failed to cure such
breach or default within ten (10) business days after written notice from Buyer,
Buyer may exercise all remedies available to it, including any or all of the
following: (a) Buyer may terminate this Agreement by delivery of written notice
to Seller; and (b) Buyer may institute proceedings in any court of competent
jurisdiction to specifically enforce the performance by Seller of the terms of
this Agreement. In addition, Seller shall be responsible for the
payment of, or reimbursement of Buyer for, all reasonable costs and expenses
incurred by Buyer in connection with the transaction contemplated by this
Agreement, including all reasonable legal fees and expenses, and all costs for
the New Survey, the environmental audits of the Parcel, the appraisal and the
property condition report for the Parcel.
If Buyer
defaults in the performance of any of its obligations under this Agreement,
Seller shall be entitled to receive and retain from Buyer copies of all surveys,
inspections, evaluations and other reports on the Property prepared by or for
Buyer and neither party shall have any other claim against the
other.
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17. Damage, Destruction and Eminent
Domain.
(a) If,
prior to the Date of Closing, the Parcel or any part thereof is damaged or
destroyed by fire, the elements or any other destructive force or cause to the
extent that repairing such damage or destruction is reasonably estimated to cost
Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) or more, then,
within a reasonable time of any such damage or destruction, Seller shall give a
written notice to Buyer specifying the insurance carrier's estimate of the
amount of insurance payable as the result of such damage or
destruction. Within ten (10) business days after Buyer has received
the written notice described in the preceding sentence, Buyer may elect to
terminate this Agreement by delivery of written notice to Seller. If
Buyer elects to consummate the purchase despite the damage or destruction, or if
any lesser damage or destruction has occurred, there shall be no reduction in or
abatement of the Purchase Price, and the parties shall treat such casualty
damage as having occurred during the term of the Lease.
(b) If,
prior to the Date of Closing any judicial, administrative, or other condemnation
proceedings are instituted or threatened in which a taking of the Parcel is
proposed that exceeds Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) in
value, including any consequential damages to the Parcel, then within a
reasonable time of receipt by it or notice of the institution of any judicial,
administrative, or other condemnation proceedings involving the Parcel, Seller
shall give a written notice to Buyer. Within ten (10) business days
after Buyer has received the written notice described in the preceding sentence,
Buyer may elect to terminate this Agreement, by delivery of written notice to
Seller. If Buyer elects to consummate the purchase despite the
institution of condemnation proceedings, or if it appears that the value of the
proposed taking, including any consequential damages to the Property, shall
total less than Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00), there shall be no
reduction in or abatement of the Purchase Price, and the parties shall treat
such condemnation as having occurred during the term of the Lease.
18. Assignment. Buyer
may not assign this Agreement without prior written consent of Seller, except
that Buyer may assign this Agreement to SunTrust Equity Funding, LLC, or a
wholly owned subsidiary of, or other entity controlled by, SunTrust Equity
Funding, LLC.
19. Notices. Any
notice, demand, communication or election required or permitted to be given or
served upon either party shall be deemed given or served in accordance with the
provisions of this Agreement, if the notice or election is delivered by (i)
facsimile which shall be deemed received if a confirmation is received by the
sender during normal business hours, (otherwise deemed to be received during the
next business day), (ii) overnight air courier, or (iii) personal delivery to or
by mailing the notice or election in a sealed wrapper by United States
registered or certified mail, return receipt requested, postage prepaid,
properly addressed as follows:
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If
to Buyer:
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c/o
SunTrust Equity Funding, LLC
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303
Peachtree Street, 24th
Floor
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Mail
Code 3951
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Atlanta,
GA 30308
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Attention: Allison
McLeod
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Facsimile: 404-230-1344
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With
a copy to:
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Greenberg
Traurig, LLP
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77
West Wacker Drive, Suite 2500
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Chicago,
IL 60601
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Attention: Julia
Sarron
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Facsimile:
312-899-0396
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If
to Seller:
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Covenant
Transport, Inc.
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400
Birmingham Highway
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Chattanooga,
TN 37419
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Attention: Joey
B. Hogan
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Facsimile: 423-821-5442
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With
a copy to:
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Scudder
Law Firm, P.C., L.L.O.
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411
S. 13th
Street
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Lincoln,
NE 68508
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Attention: Mark
Scudder
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Facsimile: 402-435-4239
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Each such
mailed notice or communication shall be deemed to have been given to or served
upon the party to which addressed within three business days after the date the
notice is deposited in the United States registered or certified mail, return
receipt requested, postage prepaid, properly addressed in the manner provided
above. Each such delivered notice or communication shall be deemed to
have been given to or served upon the party to whom delivered, upon the delivery
thereof in the manner provided above. Either party may change its
address for the service of notice by delivering written notice of the change to
the other party, in the manner provided above at least five (5) business days
prior to the effective date of the change.
20. Time of the
Essence. Time shall be of the essence in the performance of
all obligations under this Agreement. If the time period by which any
right, option or election provided under this Agreement must be exercised, or by
which any act required under this Agreement must be performed, or by which
Closing must be held, expires on a Saturday, Sunday or a holiday, then such time
period shall be automatically extended to the next business day, except as
otherwise provided herein.
21. Captions. The
paragraph headings or captions appearing in this Agreement are for convenience
only, are not a part of this Agreement and are not to be considered in
interpreting this Agreement.
22. Entire Agreement,
Modification. This Agreement and its Exhibits constitute the
entire and complete agreement between the parties and supersedes any prior oral
or written agreements between the parties with respect to the
Property. It is expressly agreed that there are no verbal
understandings or agreements which in any way change the terms, covenants and
conditions set forth in this Agreement, and that no modification of this
Agreement and no waiver of any of its terms and conditions shall be effective
unless it is made in writing and duly executed by both parties
hereto.
10
23. Binding
Effect. All covenants, agreements and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
24. Controlling
Law. This Agreement has been made and entered into under the
laws of the State of Tennessee, and those laws shall control the interpretation
of this Agreement.
25. Counterpart and
Facsimile. This Agreement may be executed and delivered with
the exchange by facsimile or overnight air courier of separate signature
pages.
26. Waiver of
Jury Trial. SELLER AND BUYER HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL UNDER THE LAWS OF THE STATE OF TENNESSEE OR
OTHERWISE OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY
OR INDIRECTLY, THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS AMONG
BUYER OR SELLER RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS
BEING ESTABLISHED AMONG BUYER AND SELLER. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
11
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the day and year
first above written.
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SELLER:
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COVENANT TRANSPORT, INC.,
a Tennessee corporation
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By:
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/s/
Joey B. Hogan
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Name:
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Joey
B. Hogan
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Title:
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EVP/CFO
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S-1
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BUYER:
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CT CHATTANOOGA TN, LLC,
a Delaware limited liability company
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By:
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SunTrust
Equity Funding, LLC, its manager
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By:
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/s/R.
Todd Shutley
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Name:
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R.
Todd Shutley
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Title:
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Senior
Vice President and Manager
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S-2
EXHIBIT
A
PROPERTY
DESCRIPTION
BEING A
PART of the Covenant Transport, Inc. property described in Deed Book 4443, Page
260, of the Register’s Office of Hamilton County, Tennessee, located in the City
of Chattanooga, Hamilton County, Tennessee, and being more particularly
described as follows:
BEGINNING
AT AN OLD PIPE, said point being in the line dividing Sections Thirteen (13) and
Fourteen (14), Township Two (2) South, Range Five (5), West of the Basis Line,
Ocoee District, the said iron pipe also marking the Northwestern corner of Lot
24, Interchange City, as shown on plat recorded in Plat Book 34, Page 22, in the
Register’s Office of Hamilton County, Tennessee, said point also being in the
Southern right-of-way of New Cummings Road; thence South 24 degrees 38 minutes
31 seconds West, along the dividing line of said Sections 13 and 14, a distance
of 2,285.13 feet to a 5/8 inch rebar with cap set; thence leaving said Section,
North 46 degrees 32 minutes 46 seconds West, a distance of 1,582.91 feet to an
old rebar found, said point being in the Eastern right-of-way of U.S. Highway
No. 11 (Birmingham Highway); thence, as follows; with a curve to the right, said
curve having a delta angle of 04 degrees 41 minutes 18 seconds, a radius of
5,690.00 feet, a length of 465.58 feet, and a chord of North 43 degrees 11
minutes 06 seconds East, 465.45 feet to a mag nail set; thence South 44 degrees
28 minutes 15 seconds East, a distance of 50.00 feet to a 5/8 inch rebar with
cap set; thence, with a curve to the right, said curve having a delta angle of
05 degrees 41 minutes 23 seconds, a radius of 5,643.85 feet, a length of 560.46
feet to a 5/8 inch rebar with cap set, said point being the end point of said
curve; thence North 51 degrees 13 minutes 15 seconds East, a distance of 60.81
feet to a 5/8 inch rebar with cap set; thence, leaving said right-of-way
crossing the Covenant Transport, Inc. property, South 78 degrees 34 minutes 19
seconds East, a distance of 92.12 feet, to a 5/8 inch rebar with cap set; thence
South 68 degrees 35 minutes 08 seconds East, a distance of 147.50 feet, to a 5/8
inch rebar with cap set; thence South 74 degrees 19 minutes 42 seconds East, a
distance of 225.85 feet, to a 5/8 inch rebar with cap set; thence North 34
degrees 00 minutes 05 seconds East, a distance of 431.88 feet, to a 5/8 inch
rebar with cap set; thence North 72 degrees 56 minutes 18 seconds East, a
distance of 53.57 feet to a 5/8 inch rebar with cap set; thence South 66 degrees
11 minutes 11 seconds East, a distance of 271.94 feet, to a 5/8 inch rebar with
cap set; thence South 85 degrees 56 minutes 14 seconds East, a distance of 56.12
feet, to a 5/8 inch rebar with cap set; thence North 50 degrees 53 minutes 23
seconds East, a distance of 51.03 feet, to a 5/8 inch rebar with cap set; thence
North 29 degrees 48 minutes 32 seconds East, a distance of 193.24 feet, to a 5/8
inch rebar with cap set, said point being in the Southern right-of-way of New
Cummings Road; thence South 63 degrees 18 minutes 12 seconds East, along said
right-of-way, a distance of 116.36 feet, to the POINT OF
BEGINNING. All as shown on that Survey prepared by Wesley M. James,
R.L.S. Tennessee No. 811, dated January 26, 2006.
Being a
portion of the property conveyed to Covenant Transport, Inc., a Tennessee
Corporation, by Warranty Deed from John C. Grant, Jr., unmarried, only child and
sole heir at law of John C. Grant, recorded December 14, 1994 in Book 4443, Page
260, in the Register’s Office of Hamilton County, Tennessee.
EXHIBIT
B
FORM
OF LEASE
(Incorporated
by reference to Exhibit 10.5 to this Form 10-K)
EXHIBIT
C
FORM
OF LEASE GUARANTY
(Incorporated
by reference to Exhibit 10.20 to Covenant Transportation Group,
Inc.'s
Report on
Form 8-K, filed April 7, 2006 (SEC Commission File No.
0-24960))
SCHEDULE
1
SELLER
INFORMATION DELIVERED BEFORE CONTRACT EXECUTION
None
SCHEDULE
2
PERMITTED
EXCEPTIONS AT CONTRACT EXECUTION
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1.
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Any
discrepancies or conflicts in boundary lines, any shortages in area, or
any encroachment or overlapping of
improvements.
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2.
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Any
facts, rights, interest or claims which are not shown by the public record
but which could be ascertained by an accurate survey of the land or by
making inquiry of persons in possession
thereof.
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3.
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Easements,
liens or encumbrances or claims thereof, which are not shown by the public
record.
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4.
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Any
lien, or right to a lien, for services, labor or material imposed by law
and not shown by the public record.
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5.
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Taxes
for the year 2006
and thereafter for tax parcel number 165-010, not yet due and
payable.
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