EXHIBIT 10.1 PURCHASE AND SALE AGREEMENT BETWEEN

THIS PURCHASE AND SALE AGREEMENT (the “ Agreement ”) is executed as of the Effective Date by and between DTC Eastgate 1, LLC, a Mississippi limited liability company (“ Seller ”), and Helen of Troy L.P., a Texas limited partnership (“ Purchaser ”).

1.      SALE OF PROPERTY; DEFINITIONS

1.1      Description of the Property .     In consideration of the purchase price and upon the terms and conditions hereinafter set forth, Seller shall sell to Purchaser and Purchaser shall purchase from Seller a single story office/warehouse/distribution building containing approximately 1,197,516 square feet and being all of the following described property (collectively, the “ Property ”): 

(a)      Land .     The real property, consisting of approximately 59.47 acres,   located in Southaven, Mississippi, which is described on Exhibit “A” attached hereto and to be depicted on the Survey (as hereafter defined), together with all rights and appurtenances pertaining to such real property, including, without limitation, all cross access/reciprocal access easements and any and all right, title, and interest in and to adjacent roads, alleys, easements, streets and ways to the extent that such are appurtenant to the Property (the “ Land ”) subject to the Permitted Exceptions, as defined below in Section 3.1 .

(b)      Improvements .     All improvements, structures and fixtures to be placed, constructed or installed on the Land by Seller, as provided in this Agreement (the “ Improvements ”);

(c)      Personal Property .     All (i) mechanical systems and related equipment to be attached to the Improvements or located upon the Land, including, but not limited to, electrical systems, plumbing systems, heating systems and air conditioning systems, (ii) other machinery, equipment, supplies and personal property of every kind and character to be located in or on the Land or the Improvements or used in connection with the operations thereon, except the Installed Equipment, (iii) interest of Seller, if any, in the Installed Equipment, and (iv)  all utilities, waste water capacity and related utility rights relating to the Improvements and the Land (the “ Personal Property ”);

(d)      Warranties, etc .     Seller's interest in all warranties and guaranties relating to the Improvements or the Personal Property;

(e)      Plans .     All site plans, surveys and plans and specifications (including, but not limited to the Final Construction Plans) which relate only to the Land, the Improvements or the Personal Property (but excluding any of the foregoing that relate to any other property owned by Seller);

(f)      Intangible Property .     All intangible property owned or held by Seller or in which Seller has an interest, if any, in connection with the Land or the Improvements or the operations thereon, and the right to the use thereof, including but not limited to Seller’s rights under governmental permits, certificates, approvals, licenses, authorizations or certifications (to the extent same are assignable) to the extent same relate to the Land, Improvements or operations thereon, (the “ Intangible Property ”); and

(g)      General Construction Contract .     All of Seller’s rights and interest under the General Construction Contract.

1.2      Definitions .     As used in this Agreement, the following terms shall have the meanings assigned to them below:

“ Abandoned Installed Equipment ” is defined in Section 11.3 hereof.

“ Adjusted Costs ” means the total net price of all Change Orders on a cumulative basis.

“ Applicable Bankruptcy Law ” means, collectively, the Federal Bankruptcy Code or any other present or future federal or state insolvency, bankruptcy or similar law.

“ Approved CC&R ” means the Declaration of Protective Covenants to be executed by Seller, as Declarant thereunder and to be recorded before Closing in the real property records of Desoto County, Mississippi, which Approved CC&R shall be substantially in the form attached hereto as Exhibit “N” .

“ Approved Survey Matters ” is defined in Section 3.2 hereof.

“ Bill of Sale ” is defined in Section 6.1(a)(ii) hereof.

  “ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601   et   seq .), as amended from time to time, and regulations promulgated thereunder.

“ Change Orders ” is defined in Section 5.2(a) hereof.

“ Change Order Request ” is defined in Section 5.2(b)(i) hereof.

“ Changes ” is defined in Section 5.2(a) hereof.

“ Closing Conditions Satisfaction Date ” means the date upon which Seller has satisfied all of the conditions to Closing set forth in Section 6.2 hereof.

“ Closing ” and “ Closing Date ” are defined in Section 6.1 hereof.

“ Closing Due Diligence Items ” is defined in Section 6.2(c) hereof.

“ Code ” means, collectively, the Internal Revenue Code of 1986, as amended, and Treasury Regulations promulgated thereunder.

“ Contractor ” means the General Contractor.

“ Earnest Money ” is defined in Section 2.3.

“ Design Architect ” means GSR Andrade Architects.

“ Effective Date ” means the date on which this Agreement has been executed by all parties hereto.

“ Environmental Report ” means, collectively, that certain Phase I Environmental Site Assessment dated February 9, 2004 prepared by Cirrus.

“ EPCRA ” means the Emergency Planning and Community Right-To-Know Act (42 U.S.C. Section 11001 et seq.) as amended from time to time, and regulations promulgated thereunder.

“ Evidence of Completion ” is defined in Section 4.3(b)(2) hereof.

“ Final CO ” means a permanent certificate of occupancy and any other certificates issued by the City of Southaven, Mississippi (or any other applicable Governmental Authority) that permit the use and occupancy of the Improvements as an office/warehouse/distribution facility and are required for the purpose of permitting such use and occupancy.

“ Final Construction Plans ” means the Preliminary Design Documents as revised and supplemented in sufficient detail to facilitate the construction and government approval of the Improvements.

“ Force Majeure ” is defined in Section 5.7 .

“ General Contractor ” means Hillwood Construction Services, L.P.

“ General Construction Contract ” means the contract to be entered into between Seller and the General Contractor for the construction of the Improvements, subject to Section 5.5 of this Agreement, which shall be substantially in the form of the attached Exhibit “D”.

“ Governmental Authorities ” means the United States, the state, county and city (or other political subdivision) in which the Property is located and any other political subdivision, agency or instrumentality exercising jurisdiction over Seller, Purchaser or the Property.

“ Governmental Requirements ” means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of a Governmental Authority.

“ Hazardous Materials ” means (i) any “ hazardous waste ” as defined by RCRA; (ii) any “hazardous substance” as defined by CERCLA (including petroleum-based products as described therein); (iii) other petroleum and petroleum-based products; (iv) asbestos in any quantity or form which would subject it to regulation under any applicable Hazardous Materials Law; (v) polychlorinated biphenyls; (vi) any substance, the presence of which on the Property is prohibited by any Hazardous Materials Law; (vii) any “ extremely hazardous substance ” or “ hazardous chemical ” as those terms are defined in EPCRA; (viii) any “chemical substance” as that term is defined in TSCA; (ix) any hazardous substances identified under Mississippi law; and (x) any other substance, including toxic substances, which, by any Hazardous Materials Laws, requires special handling in its collection, storage, treatment, management, recycling or disposal (excluding items that are used in the normal course of the operation of the Property in a manner consistent with the manufacturer’s instructions and in compliance with Governmental Requirements).

“ Hazardous Materials Contamination ” means the contamination (whether presently existing or hereafter occurring) of the Improvements, facilities, soil, groundwater, air or other elements on or of the Property by Hazardous Materials, or the contamination of the buildings, facilities, soil, groundwater, air or other elements on or of any other property as a result of Hazardous Materials at any time originating from the Property, in either event either above levels permitted under and/or otherwise in violation of Hazardous Materials Laws.

“ Hazardous Materials Laws ” means all Governmental Requirements, including, without limitation, RCRA and CERCLA, relating to the handling, storage, existence of or otherwise regulating any hazardous wastes, hazardous substances, toxic substances, radioactive materials, pollutants, chemicals, contaminants or industrial substances or relating to the removal or remediation of any of the foregoing.

“ Improvements ” is defined in Section 1.1(b) hereof.

“ Installed Equipment ” is defined in Section 5.4(a) hereof.

“ Intangible Property ” is defined in Section 1.1(f) hereof.

“ Land ” is defined in Section 1.1(a) hereof.

“ Obligatory Change Orders ” means any Change Order required because of a change in Governmental Regulations enacted after the Effective Date.

“ Owner’s Policy ” means an ALTA Standard Form Owners’ Policy of Title Insurance in an amount not less than the Purchase Price, subject to payment by Purchaser of its share of the costs payable to the Title Company under Section 7.6 of this Agreement for issue of the Owner’s Policy.

“ Permitted Exceptions ” is defined in Section 3.1 hereof.

“ Personal Property ” is defined in Section 1.1(c) .

“ Preliminary Design Documents ” means preliminary plans listed in Schedule 5.1.

“ Private Utility Providers ” means Entergy for the provision of electricity, Mississippi Valley Gas for the provision of gas, Bell South for the provision of telephone service, and Horn Lake Water Association for the provision of water.

“ Property ” is defined in Section 1.1 hereof.

“ Punchlist Escrow ” is defined in Section 6.4(a) hereof.

“ Punchlist Items ” means minor punchlist items which are non-structural in nature and which are capable of being completed within forty-five (45) days and which do not materially adversely affect the operation of Purchaser’s business at the Property.

“ Purchase Price ” is defined in Section 2.1 .

“ Purchaser ” is defined in the Preamble of this Agreement.

“ Purchaser Change Order ” is defined in Section 5.2(b)(iv) hereof.

“ Purchaser’s Construction Representative ” means _____________.

“ Purchaser Notice ” means a written notice from Purchaser to Seller that requires action by Seller under the terms of this Agreement, which notice includes, in bold face capital letters, the following statement: “THIS NOTICE IS SENT PURSUANT TO THE PURCHASE AND SALE AGREEMENT (THE “PSA”) BETWEEN YOU AND THE UNDERSIGNED. FAILURE TO RESPOND TO THIS NOTICE WITHIN _____ BUSINESS DAYS HEREOF MAY CAUSE ADVERSE CONSEQUENCES UNDER THE PSA.” If no response is required from Seller, or if Seller is not required to respond within a specific number of days under this Agreement, then “N/A” shall be inserted in the blank above .

“ RCRA ” means the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901   et   seq .), as amended from time to time, and regulations promulgated thereunder.

“ Removal Period ” is defined in Section 11.1(c) hereof.

“ Required Completion Date ” means the date which is One Hundred Ninety-Five (195) days following the Effective Date, provided such date will be extended day for day (i) for any delay caused by Purchaser, and (ii) for Force Majeure.

“ Required Improvements ” means and include (i) the “shell” of the building, the interior improvements, and all other construction and installations required under the Final Construction Plans (including Punchlist Items) (ii) all streets, curbs, parking lots, landscaping, detention ponds, signage, sidewalks, sewers and other utilities, site improvement work (offsite and onsite) and infrastructure required by the Final Construction Plans, Governmental Requirements, Private Utility Providers or Permitted Exceptions (iii) the installation of the Personal Property, (iv) any other items required by the Final Construction Plans and Governmental Requirements, (v) removal of all temporary structures and utility poles utilized for construction purposes and all portable buildings (provided Seller shall not be required to remove trees or fences from the undeveloped portion of the Property except as necessary for the completion of the Required Improvements in compliance with the Final Construction Plans and Governmental Requirements), and (vi) cleaning the Property of all construction debris and delivery to Purchaser “broom clean.”

“ Seller ” is defined in the Preamble to this Agreement.

“ Seller’s Construction Representative ” means Joe Bass and/or Tal Hicks, or such other person designated by Seller from time to time by written notice to Purchaser.

“ Seller’s Cure ” is defined in Section 11.1(a) .

“ Seller’s Default Notice ” is defined in Section 11.2(a) .

“ Seller’s Notice ” shall mean a written notice from Seller to Purchaser that requires action by Purchaser under the terms of this Agreement which notice includes, in bold face capital letters, the following statement: “THIS NOTICE IS SENT PURSUANT TO THE PURCHASE AND SALE AGREEMENT (THE “PSA”) BETWEEN YOU AND THE UNDERSIGNED. FAILURE TO RESPOND TO THIS NOTICE WITHIN _______ BUSINESS DAYS HEREOF MAY CAUSE ADVERSE CONSEQUENCES UNDER THE PSA.”

If no response is required from Purchaser, or if Purchaser is not required to respond within a specific number of days under this Agreement, then “N/A” shall be inserted in the blank above .

“ Service Contracts ” is defined in Section 1.1(d) hereof.

“ Stated Rate ” means the lesser of the maximum amount allowed by applicable law or eight percent (8%) per annum.

“ Survey ” means a current ALTA Survey of the Land prepared and certified by a duly licensed engineer or land surveyor reasonably acceptable to the Title Company and Purchaser.

“ Temporary CO ” means a temporary certificate of occupancy/completion or similar certificate issued by the City of Southaven (or other applicable Governmental Authority) that permits the occupancy and use of the Improvements as an office/warehouse/distribution facility subject only to completion of the Punchlist Items . A Temporary CO   does not include any certificates or permits issued by the City of Southaven (or other applicable Governmental Authority) with regard to the Installed Equipment.

“ Termination Default ” is defined in Section 11.1(c) hereof.

“ Title Commitment ” means a Title Commitment issued by the Title Company for the Property.

“ Title Company ” means Chicago Title Insurance Company, Memphis, Tennessee office, or such other nationally recognized title insurance company as Purchaser may select.

“ TSCA ” means the Toxic Substances Control Act (15 U.S.C. Section 2601 ) as amended from time to time, and regulations promulgated thereunder.

“ Unadjusted Required Completion Date ” means the date which is One Hundred Ninety-Five (195) days following the Effective Date, provided such date will be extended day for day for any delay caused by Purchaser, but not for Force Majeure.

2.      PURCHASE PRICE AND EARNEST MONEY

2.1      Amount .     The purchase price (the “ Purchase Price ”) for the Property shall be (a) $32,893,058, plus or minus (b) any Adjusted Costs, minus (c) any Liquidated Damages Payment (defined below). The Purchase Price shall be paid on Closing by wire transfer or the delivery of other immediately available funds to the Title Company subject to the adjustments and prorations set forth in Section 7 hereof and the establishment of the Punchlist Escrow, as provided in Section 6.4 hereof. The portion of the Purchase Price which is deposited into the Punchlist Escrow shall be released as described in Section 6.4 hereof. The “Liquidated Damages Payment” is an amount equal to $3,500 per day for 15 days after the Required Completion Date and thereafter $5,000 per day, not to exceed the total sum of $900,000, which the parties acknowledge shall constitute just compensation for any delay by Seller to meet the Required Completion Date, as liquidated damages due to the inconvenience of ascertaining and measuring actual damages, and the uncertainty thereof. If the Closing shall have occurred, such Liquidated Damages Payment shall only compensate Purchaser for damages resulting from a delay in meeting the Required Completion Date and shall not preclude Purchaser from asserting a claim against Seller to correct or compensate for any deficiencies in the Improvements to be constructed hereunder or other Default by Seller as otherwise provided in this Agreement. The Liquidated Damages Payment is only payable as a deduction from the Purchase Price on Closing; and if the Closing shall not have occurred, the Liquidated Damages Payment will not apply and the parties may seek such other remedies as otherwise provided in this Agreement. 

2.2      Independent Consideration .     Seller has received a check from Purchaser in the amount of TWENTY-FIVE AND NO/100 DOLLARS ($25.00) (the “ Independent Contract Consideration ”), which amount Purchaser and Seller hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Agreement. The Independent Contract Consideration is in addition to and independent of any other consideration or payment provided for in this Agreement and is non-refundable in all events. At the Closing, the Independent Contract Consideration shall not be applied to the Purchase Price. 

2.3      Earnest Money .     Within two days after the Effective Date, Purchaser shall deliver, in cash or immediately available funds, the amount of $750,000.00 (the “ Earnest Money ”) to the Title Company. The Title Company shall deposit the Earnest Money in a daily access interest bearing account at a financial institution whose accounts are insured by the Federal Deposit Insurance Corporation, with interest thereon to become part of the Earnest Money. The timely delivery of the Earnest Money is a condition precedent to Seller’s obligations hereunder, and the failure of Purchaser to timely deliver the Earnest Money as provided for herein shall at Seller’s option cause this Agreement to be terminated, and thereafter neither party shall have any further right or obligation under this Agreement, unless expressly provided otherwise in this Agreement. Except as otherwise expressly provided herein, the Earnest Money is nonrefundable to Purchaser. The Earnest Money, unless earlier returned to Purchaser or unless delivered to Seller as herein provided, at Purchaser’s option, either shall be applied to the Purchase Price or returned to Purchaser at the Closing.  

3.      TITLE COMMITMENT; SURVEY

3.1      Title .     Purchaser has approved the Title Commitment that is attached to this Agreement as Exhibit “K” . The following matters shall be “ Permitted Exceptions ”, which may be taken as exceptions to the coverage under the Owners Policy: 

(a)      all exceptions appearing in the Title Commitment except for those which will be released in connection with the approved plat;

(b)      those exceptions which will be created by or shown on the approved plat;

(c)      the Approved CC&R, and

(d)      any other matter that (i) is reasonably required in order for Seller to perform its obligations hereunder, (ii) does not materially interfere with the Purchaser’s intended use of the Property as a office/warehouse/distribution building, or (iii) does not create or constitute a material defect in marketable fee simple title to the Property.

Seller shall be obligated to eliminate at or prior to the Closing all mortgage liens, mechanic’s liens, judgment liens, absolute and/or collateral assignments and other similar encumbrances that are listed as exceptions to the title to the Property (excluding the lien of taxes and other items that are not yet due and payable); provided mechanics liens and judgment liens may exist provided they are resolved in accordance with Section 6.4(b) hereof. Seller shall, at or prior to Closing, satisfy all of the Requirements contained in Schedule B, Section I of the Title Commitment.

Exception Number 1 of Schedule B - Section II of the Title Commitment relating to discrepancies, conflicts or shortages in area or boundary lines or any encroachment or overlapping of improvements which a survey might show shall be deleted except for “shortages in area” with the premium for such deletion to be paid for by Purchaser, and Exception Number 7 of Schedule B - Section II of the Title Commitment relating to any lease, grant, exception or reservation of minerals or mineral rights on, and under the Property shall be deleted with the premium for such deletion to be paid for by Purchaser. Purchaser may obtain such additional endorsements to the Title Policy as Purchaser may desire, at Purchaser’s expense.

3.2      Survey .     Seller has delivered the Survey to Purchaser. Purchaser shall have a period of 2 days from the Effective Date to review the state of Seller’s title to the Property (the “ Title Review Period ”). If the Survey or Title Commitment reflects or discloses any defect, exception or other matter that is unacceptable to Purchaser in its sole discretion (“ Title Defects ”), then, prior to the expiration of the Title Review Period, Purchaser may provide Seller with written notice of its objections. Seller may, in Seller’s sole and absolute discretion, either (i) agree to remove or cure the Title Defects or (ii) terminate the Contract by giving written termination notice to Purchaser. Notwithstanding anything to the contrary in this Agreement, to the extent that Purchaser fails to identify any Title Defects in a written notice to Seller prior to the expiration of the Title Review Period, all such Title Defects shall be deemed to be waived and accepted by Purchaser and shall be Permitted Exceptions (hereinafter defined). Those matters shown on the Survey, shown on any other Surveys approved by Purchaser during the construction of the Improvements and matters which, pursuant to Sections 3.1(d) and 6.2(b) , do not require Purchaser’s approval, are herein called " Approved Survey Matters ". Upon the expiration of the Title Review Period, Exhibit “A” to this Agreement shall be deemed automatically amended to include the legal description contained in the Survey. Notwithstanding anything to the contrary herein, if Purchaser fails to acquire the Property for any reason (other than a termination by Seller pursuant to this Section 3.2 or a termination due to any Title Defect), Purchaser shall pay for 50% of the cost of the Survey (which amount shall be deducted from the Earnest Money before it is refunded to Purchaser if Purchaser is entitled to receive the Earnest Money pursuant to the terms hereof, or if the Earnest Money has previously been refunded to Purchaser, Purchaser shall pay 50% of the cost of the Survey upon being presented with an invoice therefor), even though such payment obligation is not repeated in the provisions of this Agreement providing for the return of the Earnest Money. Notwithstanding anything to the contrary contained herein, Purchaser’s obligation under the immediately preceding sentence shall survive the termination of this Agreement. Seller shall pay 100% of the Survey and Title Commitment if this Agreement is terminated because of any Title Defect or by Seller under this Section.

3.3        Objections to Title .     If Purchaser shall object to any Title Defect contained in the Title Commitment and/or Survey on or before the expiration of the Title Review Period and Seller shall not have cured or agreed to cure such Title Defect within five (5) days following Seller’s receipt of Purchaser’s notice of such objection, then Purchaser may elect to either (a) terminate this Agreement, in which case the Earnest Money shall be repaid to Purchaser, or (b) waive such Title Defect and proceed to Closing in accordance with all the terms of this Agreement. Purchaser’s failure to give Seller written notice of waiver of any Title Defect within seven (7) days following Purchaser’s notice of such objection shall be deemed an election by Purchaser to terminate this Agreement.

4.      REPRESENTATIONS, WARRANTIES AND COVENANTS

4.1      Seller's Representations and Warranties .     Seller represents and warrants to Purchaser that all of the following representations and warranties are true and effective in all respects as of the Effective Date and shall be deemed remade on the Closing Date:

(a)      Existence; Authority .     Seller is a duly organized and legally existing limited partnership under the laws of the State of its organization and is duly qualified to do business in the State of Mississippi. The execution and delivery of, and Seller's performance under, this Agreement are within Seller's powers and have been duly authorized by all requisite action. The person executing this Agreement on behalf of Seller has the authority to do so. This Agreement constitutes the legal, valid and binding obligation of Seller enforceable in accordance with its terms, subject to laws applicable generally to creditor's rights. Performance of this Agreement will not result in any breach of, or constitute any default under, or result in the imposition of any lien or encumbrance upon the Property under, any agreement or other instrument to which Seller is a party or by which Seller or the Property might be bound. Seller has the financial capacity to fulfill its obligations under this Agreement.

(b)      Litigation; No Consent .     There is no pending or, to the knowledge of Seller, threatened litigation or administrative proceedings which could adversely affect title to the Property or any part thereof or the ability of Seller to perform any of its obligations hereunder or the use of the Property by Purchaser as an office/warehouse/distribution building or otherwise affect the Property in any way. No consent or approval of any person or entity or of any Governmental Authority is required with respect to the execution and delivery of this Agreement by Seller or the consummation and performance by Seller of the transactions contemplated hereby (other than in connection with the issue of the usual and customary consents and permits required for the development of the Property).

(c)      Title to Property .     Seller owns, or will acquire as provided in Section 16.23 , and will own at Closing, good and indefeasible fee simple title to the Property, subject only to the Permitted Exceptions.

(d)      Notice of Liens .     Seller has not received written notice of, nor to Seller's knowledge, are there any facts or circumstances which would allow any Governmental Authority the right to file or impose, any liens or special assessments against any of the Property, except for inchoate liens securing the payment of ad valorem taxes which are not yet due and payable.

(e)      Agreements to Acquire or Possess the Property .     No person, firm, corporation or other entity has any right or option to acquire the Property or any part thereof, from Seller. Except as reflected within the Permitted Exceptions, Seller has not entered into any agreement with any person, firm, corporation or entity granting the right to possess the Property.

(f)        Defects; Violations; Proceedings .     Seller has not received any written notice from any insurance company, Governmental Authority or any other party of, nor to the knowledge of Seller are there (i) any defects in materials or workmanship of any Improvements on the Property, (ii) any material violations of any restrictive covenant or deed restriction affecting the Property or any building codes and/or zoning ordinances or other Governmental Requirements, or (iii) any pending or threatened condemnation proceedings. Nothing in this paragraph shall be deemed to limit the warranty as to the Improvements in Section 5.6 of this Agreement.

(g)        Governmental Requirements .     At Closing, the Property will be in compliance with (i) all Permitted Exceptions and (ii) all Governmental Requirements pertaining to the design, zoning, land use, construction and development of the Required Improvements. To the best of Seller’s current actual knowledge, no changes in zoning are pending as to any of the Property.

(h)      Soil and Flood Issues .     The Property is not included in any area having special flood hazards, except as shown on the Survey. The Property complies, or will comply at Closing, with all Governmental Requirements regarding wetlands, drainage, or water or rainfall disposal of any kind. To Seller’s current actual knowledge, no part of the Property contains any sanitary or other fill from sources outside the Property and, to the best of Seller’s current actual knowledge, no part of the Property contains any other fill except normal grading needed for construction of the Improvements.

(i)        Utilities .     At Closing, all infrastructure for water, sanitary sewer, electric, natural gas, telephone, drainage facilities and all other utility infrastructure required for the use of the Property will be installed to the Property, will be connected with valid permits, will comply with all Governmental Requirements and, to the extent applicable, with the requirements of the Private Utility Providers, and subject to Force Majeure, will be operational.

(j)        Mechanic's Liens .     At Closing, there will not be any unpaid charges, debts, liabilities, claims or obligations of Seller arising from the construction, occupancy, ownership, use or operation of the Property which could give rise to any mechanics' or materialmen's or other statutory liens against any of the Property that will not be paid by Seller at the Closing except for any such liens that arise out of the acts or omissions of Purchaser or are allowed under Section 6.4(b) hereof.

(k)        Foreign Person .     Seller is not a “foreign person” within the meaning of Sections 1445 and 7701 of the Code.

(l)        Governmental Action .     Seller has received no written notice nor has any knowledge of any change contemplated in any Governmental Requirements applicable to the Property or any judicial or administrative action applicable to the Property or any action by adjacent land owners affecting the Property, which has not been disclosed in writing to Purchaser by Seller.

(m)        Environmental.      Except as otherwise referenced in the Environmental Report and to Seller’s current actual knowledge, no part of the Property has been used as a land fill or for the use, generation, processing, storage or disposal of any hazardous or toxic materials, and, to Seller’s current actual knowledge, no part of the Property contains any materials, whether brought to the Property, deposited thereon, used on the Property, generated on the Property as a product or by-product of activities on the Property, or otherwise present: (i) that are or contain polychlorinated biphenyls (PCB’s) or asbestos; (ii) that are hazardous substances or other regulated products as defined in the Comprehensive Environmental Response, Compensation and Liability Act, as amended (or regulations promulgated, adopted or incorporated thereunder); or (iii) that are otherwise classified as hazardous or regulated substances or waste under any federal, state or local law or regulation or Governmental Requirements. As of the Closing Date, there will be no underground or above ground storage tanks on the Property nor, to the best of Seller’s current actual knowledge, have there ever been any such tanks on the Property.

(n)        Performance.      Seller has no current actual knowledge of any fact or circumstance that would prevent it from performing its duties under this Agreement.

(o)      Litigation .     There are no claims, actions, suits, proceedings, audits, investigations, criminal proceedings or grievances (including worker’s compensation claims), at law or equity, before any court, tribunal, administrative agency, arbitrator or other governmental or regulatory authority or other forum pending against Seller or the Property or, to Seller’s current actual knowledge, threatened against Seller or the Property, which relate to the Property.

(p)      Condemnation .     Seller has not received written notice of any pending or threatened condemnation or similar proceeding affecting the Property, or any part thereof. No written notice has been received by Seller from any insurance company, court, administrative agency, arbitrator or other governmental or regulatory authority or any other party of, nor to Seller’s current actual knowledge, are there any facts or circumstances which would give rise to (i) any material condition, defect, or inadequacy affecting the Property that, if not corrected, would result in termination of insurance coverage or materially increase its cost, (ii) any violation of any restrictive covenant or deed restriction affecting the Property, (iii) any pending or threatened condemnation proceedings relating to the Property or any part thereof or (iv) any proceedings that would cause the change, redemption or other modification of the zoning classification or other legal requirements applicable to the Property.

(q)      Access/Dedications .     Except as expressly set forth on the Survey, the Property has, or will have as of the Closing Date, full and free access to and from public highways, streets or roads and Seller has no current actual knowledge of any pending or threatened governmental proceeding or any other fact or condition which would materially limit or result in the termination, with respect to the Property, of existing access to and from public highways, streets or roads. All roads necessary for the use of the Property for office/warehouse/distribution purposes have been completed, or will be completed as of the Closing Date, are physically open (or will be physically open as of the Closing Date) and dedicated (or will be dedicated as of the Closing Date) to public use and have been accepted pursuant to applicable laws. Except as expressly set forth on the Survey or recorded plats, all curb cut street opening permits or licenses required for vehicular access to and from the Property from any adjoining public street have been (or will have been as of the Closing Date) obtained and paid for and are in full force and effect. Except as otherwise set forth in the Permitted Exceptions, no commitments or other undertakings, whether written or oral, express or implied, have been made to any governmental authority, utility company, school board, church or other religious body, or any property owners' association or any other organization, group or individual, relating to the Property which would impose an obligation upon Purchaser to make any contribution or dedication of money or land or to construct, install or maintain any improvements of a public or private nature on or off any of the Properties.

(r)      Rollback Taxes .     None of the Property is subject to any rollback taxes. To the extent any rollback taxes are imposed as a result of the transaction contemplated under this Agreement, Seller shall be solely responsible for such taxes.

(s)      CC&R .     All of the land depicted on the attached Exhibit “L” that has been sold by Seller or any Affiliate (defined in Section 16.25(c) below) of Seller is and/or will be subject to restrictive covenants that are substantially the same as the Approved CC&R. Seller covenants and agrees that for such period of time that it or any Affiliate shall own any of the land depicted on the attached Exhibit “L” , Seller and/or Seller’s Affiliate shall comply with the Approved CC&R. Notwithstanding anything to the contrary herein, if restrictive covenants that are substantially the same as the Approved CC&R are recorded on all or any part of the land identified on Exhibit “L” , then Seller’s and/or Seller’s Affiliate’s obligations under this Section 4.1(s) shall terminate with respect to the land on which such restrictive covenants are recorded.

(t)      Seller has no knowledge of the existence of any fact that, if stated, would render any of Seller’s representations or warranties untrue.

4.2      Knowledge Defined .     All references in this Agreement to the "knowledge" and terms of similar import shall mean a person's existing, current, actual state of mind with respect to the given fact, situation, or occurrence, including any information which such person may have obtained through any investigation such person has conducted in the ordinary course of its business, but does not require any special investigation for the purposes of making or verifying any warranty or representation in this Agreement made by or on behalf of such person. In the context of Seller's representations and warranties made herein, the term “knowledge” is expressly limited to the actual current (and not constructive) knowledge of the employees of Seller and Seller’s Affiliates (collectively, the “ Knowledge Employees ”), and any reference to Seller’s receipt of “notice” shall mean the actual receipt of notice by the Knowledge Employees; provided, however, that the Knowledge Employees shall not have any personal liability in connection with any representations or warranties of Seller. Anything in this paragraph to the contrary notwithstanding, “knowledge” shall include any information obtained by any person employed by Seller or Seller’s Affiliates that (i) is intentionally and wrongfully withheld from Purchaser and (ii) would render any of Seller’s representations or warranties false in any material respect. As used in this Section 4.2 , “Seller’s Affiliates” means all entities which are controlled by Seller, control Seller, or are under common control with Seller.

4.3      Survival .     The representations and warranties in the above Section 4.1 shall survive the Closing for a period of 18 months following the date of the Closing.

4.4      Seller's Covenants .     Seller hereby covenants and agrees with Purchaser that, after the Effective Date through the Closing Date:

(a)      Service Contracts .     Seller shall not enter into any Service Contracts (except those which are terminable with or without cause on thirty (30) days notice without penalty) which would continue for a period subsequent to the Closing Date.

(b)      Completion of Improvements .

(1)      The Required Improvements will be substantially completed and installed using new and first class materials in accordance with the Preliminary Design Documents on or before the Required Completion Date:

(A)      in a good and workmanlike manner, in substantial accordance with the Final Construction Plans (excluding the Punchlist Items) and General Construction Contract,

(B)      in accordance with all Governmental Requirements (including, but not limited to, building, handicapped, employee safety, and other laws, rules, regulations and codes),

(C)      in accordance with the requirements of the Private Utility Providers, and

(D)      in accordance with the requirements of any Permitted Exceptions, including the Approved CCR.

(2)      Seller shall notify Purchaser in writing when the Required Improvements have been so completed and shall deliver to Purchaser (the “ Evidence of Completion ”)

(c)      Zoning of the Property .     Without the prior written consent of Purchaser, Seller will not initiate or permit any zoning reclassification of the Property or seek any variance under existing zoning ordinances applicable to the Property to use or permit the use of the Property in such a manner which would result in such use becoming a nonconforming use under applicable zoning ordinances or other Governmental Requirements.

(d)      Condemnation; Injury; Damages .     Promptly upon obtaining knowledge of the institution of any proceedings for the condemnation of the Property, or any portion thereof, or any other proceedings arising out of injury or damage to the Property, or any portion thereof, Seller will notify Purchaser of the pendency of such proceedings, as provided in Section 12.2 below.

(e)      Litigation .     Seller will advise Purchaser promptly of any material litigation, arbitration or administrative proceeding or change in Governmental Requirements concerning or affecting the Property or the ownership and/or operation thereof of which Seller has knowledge or written notice.

(f)      Liens .     Except for liens which (i) Seller shall be obligated to release at or prior to Closing, (ii) are created by, through or under Purchaser and (iii) have been resolved in accordance with Section 6.4 hereof, Seller shall not grant, consent or permit the filing of any lien or encumbrance against the Property or any portion thereof subsequent to the Effective Date.

(g)      As of the Closing Date, (i) the Temporary CO will be valid and in full force and effect and no violations shall exist with respect to such Temporary CO and (ii) the Property will be in compliance with all applicable federal, state and municipal laws, rules, regulations and ordinances, applicable restrictions, zoning ordinances, building codes and regulations, building lines and easements, including, without limitation, federal and state environmental protection law and the Americans with Disabilities Act of 1990, all state and local laws or ordinances related to handicapped access, and any statute, rule, regulation, ordinance, or order of governmental bodies or regulatory agencies, or any order or decree of any court adopted or enacted with respect thereto.

(h)      On or before the Closing Date, Seller shall provide to purchaser an update to the Environmental Report, which updated Environmental Report shall not create any exception to the representations and warranties made by Seller in Section 4.1(m) .

(i)      Insurance .     Seller shall maintain (and/or shall require the General Contractor to maintain) the following insurance:

 (ii)     commercial general liability insurance to protect against any bodily injury, death, or property damage resulting from any use of or accident occurring in or on the Property, with combined single limit coverage of $3,000,000 and $5,000,000 aggregate. Purchaser shall be named as an additional insured under this policy.

(iii)     all insurance required by the Construction Contract for subcontractors and/or the General Contractor, including builders risk and workers compensation coverage. Purchaser shall be named as an additional insured on all policies except the workers compensation policy.

(j)      Evidence of Insurance .     Seller shall deliver to Purchaser copies of certificates evidencing such insurance and shall deliver renewal certificates within thirty (30) days of the renewal of the policies required hereunder. All certificates shall contain a thirty (30) day notice of cancellation clause.

4.5      Purchaser's Representations and Warranties .     Purchaser represents, warrants and covenants to Seller as follows:

(a)      Authority .     Purchaser is duly a organized and legally existing limited partnership under the laws of the state of Texas and is duly qualified to do business in the State of Mississippi. The execution and delivery of, and the performance by Purchaser, of this Agreement is within Purchaser’s powers and has been duly authorized by all requisite action. The person or persons executing this Agreement on behalf of Purchaser has the authority to do so. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, subject to laws applicable generally to creditor's rights. Performance of this Agreement will not result in any breach of, or constitute any default under, any agreement or other instrument to which Purchaser is a party. Purchaser has the financial capacity to fulfill it obligations under this Agreement.

(b)      No Violation; Consent .     The execution and delivery by Purchaser of, consummation of transactions provided for in, and compliance by Purchaser with all of the provisions of this Agreement (i) will not violate the organizational documents of Purchaser and (ii) do not require any approval or consent of any parties for Purchaser.

(c)      Environmental.     Purchaser has received from Seller the Environmental Report for the Property.

4.6      Purchaser Covenants .     Purchaser hereby covenants and agrees with Seller that, after the Effective Date through the Closing Date: 

(a)      Diligent Efforts .     Purchaser will use diligent efforts to satisfy those Purchaser conditions to Closing set forth in Section 6.3 .

(b)      Insurance .     Purchaser shall maintain the following insurance:

(c)      Evidence of Insurance .     Purchaser shall deliver to Seller copies of certificates evidencing such insurance prior to Purchaser's occupancy of the Property or Purchaser’s contractor’s entry into the Property and shall deliver renewal certificates within thirty (30) days of the renewal of the policies required hereunder. All certificates shall contain a thirty (30) day notice of cancellation clause.

(d)      Improvements .     Purchaser acknowledges and agrees that, notwithstanding any term to the contrary in this Agreement, Purchaser shall have no right, title or interest (including, without limitation, any equitable right, title or interest) in or to the Improvements unless and until the Closing occurs as provided under this Agreement. Notwithstanding the preceding sentence, Purchaser shall have a right to remove Installed Equipment at any time during the pendency of this Agreement unless Purchaser is in default hereunder, in which event the Installed Equipment shall be treated in the manner described in Section 11.3.

4.7      Mutual Waiver of Subrogation .     Seller and Purchaser and all parties claiming under, by, or through them hereby waive any and all right of recovery, claim, action or cause of action against the other and against the General Contractor, all subcontractors and all sub-subcontractors, and each of their respective principals, beneficiaries, partners, officers, directors, agents, and employees, for any loss or damage that may occur to Seller or Purchaser or any party claiming by, through or under them with respect to their respective personal property, the Property or the Improvements or any additions or improvements thereto, or any contents therein, by reason of fire, the elements or any other cause or casualty, regardless of cause or origin, including the negligence of any of the foregoing parties, or their respective principals, beneficiaries, partners, officers, directors, agents and employees if such loss or damage is covered by property insurance (or would have been covered had the insurance required by this Agreement been carried) (regardless of whether the limits of the applicable policies are sufficient to cover the losses in question). Since this mutual waiver will preclude the assignment of any such claim by subrogation (or otherwise) to an insurance company (or any other person), Seller and Purchaser each agree to give each insurance company which has issued, or in the future may issue, policies of insurance, with respect to the items covered by this waiver, written notice of the terms of this mutual waiver and to have such insurance policies properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided by such insurance policies by reason of such mutual waiver. For the purpose of the foregoing waiver, the amount of any deductible applicable to any loss or damages shall be deemed covered by, and recoverable by the insured under the insurance policy to which such deductible relates. Seller and Purchaser shall indemnify the other against any loss or expense, including but not limited to reasonable attorney’s fees, resulting from the failure to obtain such insurance subrogation waiver. Provided, however, that nothing in this Section shall have the effect of releasing Seller, Purchaser, or the General Contractor from any representation or warranty made in this Agreement or in the Construction Contract.

5.      CONSTRUCTION AND CHANGE ORDERS

5.1      Construction Documents .     Seller and Purchaser hereby acknowledge their respective approval of the Preliminary Design Documents. Seller agrees to cause the preparation of Final Construction Plans that are consistent with the Preliminary Design Documents within 60 days after the Effective Date. To the extent that the Final Construction Plans materially and substantially deviate from the Preliminary Design Documents, Seller shall be required to obtain Purchaser’s prior written consent before allowing such material and substantial deviations to be constructed.  

5.2      Approval of Construction Contract .     Seller shall deliver to Purchaser a true and complete copy of  the General Construction Contract prior to the final execution thereof by Seller and General Contractor (with, if Seller desires, the economic terms therein redacted), which General Construction Contract shall be subject to Purchaser’s approval, which shall not be unreasonably withheld or delayed. If Purchaser shall not have given notice of disapproval of the General Construction Contract within five (5) business days following Purchaser’s receipt of such copy, then Purchaser shall be deemed to have approved said General Construction Contract.

5.3      Change Orders. 

(a)      Change Orders Requiring Purchaser Approval .     From and after the Effective Date, (i) all changes in the Preliminary Design Documents, in the Final Construction Plans, or resulting in a delay of the Required Completion Date, (ii) change orders under the General Construction Contract, and/or (iii) selection and changes of materials (including matters such as building materials, roof color, building colors, and project colors) (collectively, the “ Changes ”) shall require the prior written approval of Purchaser (such approval not to be unreasonably withheld or delayed) (the Changes, when approved, being “ Change Orders ”).

(b)      Change Order Review Procedure .

(i)      From time to time, (A) Purchaser may propose a Change which issues additional instructions, requires additional work or directs the omission of work previously ordered or (B) either party may identify and request a change required by a Governmental Authority (any request for a change pursuant to this Section 5.2 is herein called a “ Change Order Request ”). The Change Order Request shall be issued by the design architect on behalf of Seller, or by either the Purchaser’s Construction Representative on behalf of Purchaser as the case may be, and shall set forth in reasonable detail, the nature of the