EX-10
4
ex10-7_032106.htm
032106
Exhibit 10.7
Commercial Purchase Agreement between
Xxxx Xxxxxxx, Jr. and the Company dated February 8, 2006.
Exhibit 10.7
BEACH FIRST NATIONAL BANK,
hereinafter designated as SELLER, has received from XXXX XXXXXXX, JR., hereinafter
designated as BUYER, the amount set forth below as DEPOSIT in Section 1.A on account of
the TOTAL PURCHASE PRICE of One Million Five Hundred Thousand and no/100 Dollars
($1,500,000.0O) (the “Purchase Price”), for the land and building located at
0000 Xxx Xxxxxx, Xxxx of Xxxxxx Xxxxx, Xxxxxx xx Xxxxx, Xxxxx xx Xxxxx Xxxxxxxx, more
specifically described on the attached Exhibit A (the
“Property”). This conveyance of the Property does not include furniture,
furnishings, equipment and personal property of Seller located on the Property.
1.
FINANCING TERMS AND LOAN PROVISIONS
A. $ 50,000.00 DEPOSIT (the
“Deposit”) evidenced by check payable to Xxxxxx Xxxxxxx Xxxxx &
Xxxxxxxxxxx, LLP, and deposited as required by South Carolina law and South
Carolina Real Estate Commission Rules and Regulations to be held in trust by
Xxxxxx Xxxxxxx Xxxxx & Scarborough, LLP as Escrow Agent.
B. $ 1,450,000.00
balance of Purchase Price payable at closing.
2.
CLOSING. On or before March 6, 2006, SELLER agrees to convey marketable
title by delivery of a general warranty deed, free of encumbrances, except as
herein stated. “Marketable Title” shall mean title for which Chicago
Title Insurance Company (the “Title Company”) will issue, at its
regular rates, an Owner’s and Lender’s Policy subject only to its
standard exceptions, the Permitted Exceptions set forth in Section 11 and the
restriction set forth in Section 4. SELLER agrees to pay the statutory deed
recording fee, formerly know as documentary stamp taxes. At closing, BUYER
agrees to pay by wire transfer to the trust account of the closing attorney the
balance of the Purchase Price plus all costs.
3.
CONDITION OF PROPERTY: SELLER IS CONVEYING THE PROPERTY “AS IS”
AND PURCHASER HAS INSPECTED THE PROPERTY, IS THOROUGHLY ACQUAINTED WITH ITS
CONDITION AND AGREES TO TAKE THE PROPERTY “AS IS.” PURCHASER
UNDERSTANDS AND ACKNOWLEDGES THAT EXCEPT FOR THE PROVISION OF SECTION 17, SELLER
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTY. PURCHASER HAS INSPECTED THE PROPERTY AND
IS THOROUGHLY ACQUAINTED WITH ITS PRESENT CONDITION. PURCHASER IS RELYING SOLELY
ON PURCHASER’S KNOWLEDGE, INSPECTION AND INVESTIGATION OF THE PROPERTY IN
ENTERING INTO THIS AGREEMENT WITHOUT RELYING IN ANY MANNER ON ANY
REPRESENTATIONS OR WARRANTY BY SELLER, OR ITS AGENTS, OR ANY LISTINGS,
ADVERTISEMENTS OR BROCHURES.
1
4.
VESTED TITLE AND RESTRICTION. The deed shall be prepared in a name to be
determined by the BUYER and shall state the true consideration of $1,500,000.00.
The deed shall contain a restriction that the Property shall not be used for a
Bank for a period of six (6) months after expiration of the lease set forth in
Section 26.C. For the purposes of this restriction “Bank” shall be
defined as a financial company which keeps insured deposits.
5.
SURVIVAL. The omission from closing of any provision herein shall not
waive the right of any party. All representations or warranties shall survive
the conveyance of the property.
6.
DEFINITIONS.
“Days”
means calendar days unless otherwise specified.
“Date
of Acceptance” means the date the SELLER accepts the offer or the BUYER accepts the
counteroffer.
“Delivered”
means personally delivered or mailed by certified mail; in the event of mailing, delivery
shall be deemed to have been made on the day following the xxxx of mailing evidenced by
the postmark on the envelope containing the delivered mail.
7.
TIME IS OF THE ESSENCE. TIME IS OF THE ESSENCE FOR THIS AGREEMENT. All
modifications and extensions shall be in writing and signed by all parties.
8.
CONDITIONS SATISFIED/WAIVED IN WRITING. Each condition or contingency,
approval and disapproval herein shall be satisfied according to its terms or
waived in writing by the benefiting party within the time limits specified (or
any extension thereof agreed to by the parties in writing), or this Agreement
shall terminate and all of the Deposit returned to BUYER to the date of
cancellation of this transaction. This paragraph contemplates that each party
shall diligently pursue the completion of this transaction.
9.
DESTRUCTION OF IMPROVEMENTS. If the improvements located on the Property
are destroyed, materially damaged, or found to be materially defective prior to
closing, BUYER shall have the option for ten (10) days thereafter of proceeding
hereunder or of terminating this Agreement. In the event BUYER elects to
terminate this Agreement, BUYER may terminate this transaction by written notice
to SELLER’S and the Deposit shall be returned to BUYER.
In the event BUYER does not elect to
terminate this Agreement, BUYER shall be entitled to receive in addition to the Property
any insurance proceeds payable on account of the damage or destruction of the Property
provided, however, in the event the insurance proceeds payable exceed the Purchase Price,
the SELLER shall be entitled to the insurance proceeds in excess of the Purchase Price.
2
10.
NOTICE OF VIOLATIONS. By acceptance hereof, SELLER warrants that SELLER
has no notice of violations relating to the Property from city, county, or state
agencies or governmental authorities.
11.
EXAMINATION OF TITLE. In addition to any encumbrances referred to herein,
BUYER shall take title to the property subject to the Permitted Exceptions as
hereinafter defined. Within twenty (20) days of the execution of this Agreement
Buyer shall order from the Title Company at Buyer’s expense, a Title
Commitment with an effective date no earlier than thirty (30) days prior to the
date of this Agreement issued through the Title Company and setting forth the
state of title to the Property and all exceptions to coverage which would appear
in an owner’s policy of title insurance, if issued, together with copies of
all instruments identified in the Title Commitment as exceptions to title. If on
or before ten (10) days of receipt of the Title Commitment, Buyer determines
that the status of title reflected in such Title Commitment is unacceptable for
any reasonable objection, Buyer shall so notify Seller in writing specifying
such objectionable matters. Seller shall have a period of thirty (30) days
following the receipt of such notice from Buyer to cure such defect; provided,
however, that Seller shall not be obligated to cure any such defects. If Seller
is unable or elects not to cure such defects or provide an alternative Title
Commitment within the thirty (30) day period, within twenty (20) days following
the expiration of such period Buyer may either terminate this Agreement or, at
its election, maintain this Agreement in effect with the right to take title
subject to such defects not cured by Seller, without any deduction or adjustment
in the Purchase Price. If Buyer fails to notify Seller within ten (10) days of
receipt of the Title Commitment of any objectionable matters set forth in the
Title Commitment, then all matters set forth in Schedule B-2 of the Title
Commitment shall be the “Permitted Exceptions.” Also, any
objectionable matters which Seller is unable or elects not to cure which are
accepted by Buyer shall also be Permitted Exceptions.
12.
PHYSICAL POSSESSION. SELLER shall remain in physical possession after
Closing of the Property pursuant to the Lease Agreement described in Paragraph
26.c.
13.
ACCESS TO PROPERTY. Subject to bank security requirements, SELLER agrees
to provide reasonable access to the property to BUYER and inspectors
representing BUYER as provided in this Agreement and to representatives of
lending institutions for appraisal purposes, as well as agents and contractors
of BUYER.
14.
ADJUSTMENTS. Since SELLER is remaining in possession under the lease
described in Paragraph 26.C, there shall be no proration of taxes, rents or
insurance at closing.
15.
PROVISIONS. The following provisions are included in this Agreement.
A.
SUBJECT TO BUYER’S APPROVAL OF PEST CONTROL INSPECTION REPORT. Cost of Pest
Control Report to be paid by SELLER. The main building and all structures on the
property are to be inspected by a licensed pest control operator chosen by the
BUYER. If such inspector recommends repair and/or treatment and/or if the
inspecting pest control operator recommends further inspection of inaccessible
areas, the SELLER, at SELLER’S option, may perform recommended repairs
and/or treatment and/or may agree to the additional
3
costs of such inspection and if there
is damage, perform the additional repairs prior to the closing. If the SELLER does not
elect to correct the damage or provide for treatment or perform the additional inspection,
the BUYER’S obligation under this Agreement shall terminate and BUYER shall have all
of the Deposit returned. If additional inspections are done and no such infestation or
infection is discovered, the additional costs of inspecting such inaccessible areas and
the work required to repair any damage caused by such additional inspections shall be paid
by BUYER.
B.
INSPECTION OF PHYSICAL CONDITION OF PROPERTY. Prior to Closing, BUYER shall have
the privilege and responsibility, at BUYER’S expense, to select licensed
contractors or other qualified professionals to inspect the Property (including
land and improvements), including but not limited to structural matters,
geological, plumbing, heating, air conditioning, electrical, built-in
appliances, well, pool, septic tank, hazardous and toxic materials, and survey.
BUYER shall, upon SELLER’S written request, finish SELLER at no cost,
copies of all inspection reports obtained. BUYER shall approve or disapprove all
inspection reports obtained in writing within twenty (20) days of the acceptance
of this Contract. If SELLER does not agree to correct any conditions
unacceptable to BUYER within three (3) days from receipt of such notice, BUYER
may elect to terminate this Agreement. In the event of such termination, all
deposits shall be returned to BUYER and the parties shall have not further
obligations hereunder.
X.
XXXXX HAZARD ZONE. BUYER has been advised that the Property is not located in an
area which the Secretary of HUD has found to have special flood hazards.
D.
CERTIFICATE OF OCCUPANCY. SELLER warrants that a certificate of occupancy for
the Property is in effect.
16.
FIXTURES. Except for the property listed on the attached Exhibit
B, all items permanently attached to the property, including but not
limited to attached floor covering, draperies, with hardware, shades, blinds,
window and door screens, storm sash, combination doors, awnings, light fixtures,
outdoor plants and trees, are included this conveyance free of liens, as well as
any and all outdoor ornamental fixtures, or decorations unique to subject
property.
17.
MAINTENANCE. SELLER covenants that the heating, air-conditioning,
electrical, sewer, septic system, drainage, sprinkler, plumbing systems
(including water heaters), as well as built-in appliances and other mechanical
apparatus shall be in normal working order on the date possession is delivered.
18.
DEFAULT. If the BUYER shall default under this Agreement, the SELLER
shall have the option of suing for damages or specific performance, including
but not limited to, reasonable attorney’s fees or rescinding this
Agreement. In the event the Agreement is rescinded, the xxxxxxx money shall be
paid to SELLER.
Upon default by SELLER, the BUYER
shall have the option of suing for damages or specific performance, or rescinding this
Agreement. Upon default by the SELLER, if the BUYER elects to rescind this Agreement,
BUYER will be refunded all sums paid hereunder.
4
19.
ATTORNEY FEE. In any action or proceeding involving a dispute between
BUYER and SELLER arising out of the execution of this Agreement or the sale, the
prevailing party shall be entitled to receive from the other party a reasonable
attorney’s fee to be determined by a court of competent jurisdiction.
20.
EXPIRATION OF OFFER. This offer shall expire unless acceptance is
delivered to BUYER on or before 5:00 PM, February 13, 2006.
21.
COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which is deemed to be an original hereof, and all of which shall
together constitute one and the same instrument.
22.
ENTIRE AGREEMENT. This document contains the entire agreement of the
parties and supersedes all prior agreements or representations with respect to
the property which are not expressly set forth herein. This Agreement may be
modified only in writing signed and dated by both parties.
23.
MEDIATION CLAUSE. Any dispute or claim arising out of or relating to this
Agreement, the breach of this Agreement or the services provided in relation to
this Agreement, shall be submitted to mediation in accordance with the Rules and
Procedures of the Dispute Resolution System of the NATIONAL ASSOCIATION OF
REALTORS®. Disputes shall included representations made by the BUYER,
SELLER, or other person or entity in connection with the sale, purchase,
financing, condition or other aspect of the property to which this Agreement
pertains, including without limitation allegations of concealment,
misrepresentation, negligence and/or fraud. Any agreement signed by the parties
pursuant to the mediation conference shall be binding. This mediation clause
shall be in effect for a period of 120 days after the date of closing. The
following matters are excluded from mediation hereunder (a) judicial or
non-judicial foreclosure or other action or proceeding to enforce a deed of
trust, mortgage, or land contract (b) an unlawful detainer action; (c) the
filing or enforcement of a mechanic’s lien; or (d) any matter which is
within the jurisdiction of a probate court. The filing of a judicial action to
enable the recording of a notice of pending action, order of attachment,
receivership, injunction, or other provisional remedies, shall not constitute a
waiver of the right to mediate under this provision, nor shall it constitute a
breach of the duty to mediate.
24.
FOREIGN INVESTMENT AND REAL PROPERTY TAX ACT (IRS SECTION 1445). The
Foreign Investment and Real Property Tax Act requires a BUYER purchasing real
property from a foreign person to withhold tax from the sale proceeds unless an
exemption applies, SELLER agrees to provide Broker with a certification
establishing that no federal income tax is required, unless it is established
that the transaction is exempt and the BUYER intends to use the property as
personal residence due to existing laws at time of closing.
5
25.
SELLER COVENANTS. SELLER covenants and agrees to comply with South
Carolina Section 12-8-580 (as amended from time to time), regarding withholding
requirements of sellers who are not residents of South Carolina as defined in
this given statute. SELLER also agrees to provide to BUYER a Certificate of
Compliance from the S.C. Department of Revenue reflecting that no tax liability
is outstanding or to provide a Transferor Affidavit as provided is SC Revenue
Ruling # 03-1/13/03.
26.
ADDITIONAL TERMS AND CONDITIONS. The BUYER’s obligations to proceed
under the terms of this Contract are expressly contingent upon the following
additional conditions:
A. This contract is expressly contingent upon BUYER
obtaining financing in the amount of no less than seventy percent (70%) of the
appraised value.
B.
This contract is expressly contingent upon BUYER obtaining an appraisal from a
licensed South Carolina appraiser either equal to or higher than the purchase
price.
C. This contract is expressly contingent upon BUYER and SELLER entering
into a lease agreement wherein SELLER shall lease back the Property from BUYER
upon the following general terms and conditions:
| 1) | Term: Closing until July 31, 2006; |
| 2) | Rental: $9500.00 per month; |
| 3) | Renewal: Monthly basis until September 30, 2006; |
| 4) | Maintenance, Taxes and Insurance: Paid by Seller. |
27.
FACSIMILE: The parties agree that the offer, any counteroffer and the
acceptance of any counteroffer may be communicated by use of a fax and the
signatures, initial and handwritten or typewritten modification to any of the
foregoing shall be deemed to be valid and binding upon the parties as if the
original signature, initials and handwritten or typewritten modifications were
present on the documents in the handwriting of each party.
28.
EXTENSION: The parties agree that if, through no fault of either party,
the Closing does not occur on or before March 6, 2006, then either party may
request and shall receive an automatic extension for up to fifteen (15) days.
29.
REAL ESTATE BROKER. BUYER and SELLER represent that neither have dealt
with any broker, agent or other finder with respect to this Contract and the
transaction contemplated hereby. Each party hereto agrees to indemnify, defend
and save harmless the other party from and against any and all claims, losses,
damages, costs or expenses of any kind or character arising out of or resulting
from any agreement, arrangement or understanding alleged to have been made by
such party or on its behalf with any broker or finder in connection with this
Contract or transactions contemplated hereby.
6
30.
TAX-DEFERRED EXCHANGE. In the event Seller desires to effect a
tax-deferred exchange in connection with conveyance of the Property, Buyer
agrees to cooperate in effecting such exchange; provided, however, that Seller
shall be responsible for all additional costs associated with such exchange, and
provided further, that Buyer shall not assume any additional liability with
respect to such tax-deferred exchange. Buyer shall execute such additional
documents, at no cost to Buyer as shall be required to give effect to this
provision.
THIS IS A LEGALLY BINDING AGREEMENT.
BOTH BUYER AND SELLER SHALL SEEK FURTHER ASSISTANCE IF THE CONTENTS ARE NOT UNDERSTOOD.
7
RECEIPT AND
ACKNOWLEDGMENT OF BUYER
THE UNDERSIGNED BUYER ACKNOWLEDGES
THAT BUYER HAS THOROUGHLY READ AND APPROVED EACH OF THE PROVISIONS CONTAINED HEREIN AND
AGREES TO PURCHASE THE HEREIN DESCRIBED PROPERTY FOR THE PRICE AND ON THE TERMS AND
CONDITIONS SPECIFIED. BUYER ACKNOWLEDGES RECEIPT OF A COPY OF THIS AGREEMENT. THE
UNDERSIGNED BUYER FURTHER UNDERSTANDS THAT UNLESS STATED OTHERWISE HEREIN, THE PROPERTY IS
BEING SOLD IN ITS PRESENT CONDITION ONLY, WITHOUT WARRANTIES OR GUARANTEES OF ANY KIND BY
SELLER OR ANY OTHER BROKER OR AGENT. BUYER STATES THAT NO REPRESENTATIONS CONCERNING THE
CONDITION OF THE PROPERTY ARE BEING RELIED UPON BY BUYER EXCEPT AS STATED HEREIN. BUYER
ACKNOWLEDGES THAT NEITHER ANY BROKER OR AGENT INVOLVED IN THIS TRANSACTION IS AN EXPERT AT
DETECTING OR REPAIRING PHYSICAL DEFECTS IN THE PROPERTY.
| | |
| Buyer: /s/ Xxxx Xxxxxxx, Jr. | | | Date February 7, 2006 | | | Time 1:10 p.m. | | |
| Xxxx Xxxxxxx, Jr. | | | | | | | | |
| | | |
| Witness: /s/ x
| | | | | | | | |
RECEIPT AND
ACKNOWLEDGEMENT OF SELLER
THE UNDERSIGNED SELLER ACKNOWLEDGES
THAT SELLER HAS THOROUGHLY READ THE PROVISIONS OF THIS AGREEMENT ANT) AGREES TO SELL THE
HEREIN DESCRIBED PROPERTY FOR THE PRICE AND ON THE TERMS AND CONDITIONS SPECIFIED. SELLER
ACKNOWLEDGES RECEIPT OF A COPY 0F THIS AGREEMENT.
| | |
| Seller: BEACH FIRST NATIONAL BANK | | | Date February 8, 2006 | | | Time 7:45 p.m. | | |
| | | |
| By: Xxxxxx X. Xxxxxxxx, III | | | | | | | | |
| Its: President
| | | | | | | | |
| | | |
| Witness: /s/ x
| | | | | | | | |
8
EXHIBIT A
DESCRIPTION OF PROPERTY
9
