EXHIBIT 10.7
LOT/LAND PURCHASE AND SALE AGREEMENT DATED APRIL 18, 2001
BY AND BETWEEN CHEROKEE BANK, N.A. AND XXXXX HOLDING COMPANY, INC.
LOT/LAND PURCHASE AND SALE AGREEMENT
Date: April 09, 2001
1. PURCHASE AND SALE. The undersigned buyer ("Buyer") agrees to buy and the
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undersigned seller ("Seller") agrees to sell all that tract or parcel of land,
with such improvements as are located thereon, described as follows: All that
tract of land lying and being in Land Xxx 00 xx xxx 00xx Xxxxxxxx, 0xx Xxxxxxx
xx Xxxxxxxx Xxxxxx, Georgia, and being known as [ ] Xxxxxxxx Xxxxxxx, Xxxxxx,
Xxxxxxx 00000, according to the present system of numbering in and around this
area, being more particularly described as Xxx x/x, Xxxxx x/x, Xxxx x/x,
Xxxxx/Xxxxxxx x/x of n/a subdivision, as recorded as Plat Book n/a, Page n/a,
Cherokee County, Georgia, records together with all fixtures, landscaping,
improvements, and appurtenances, all being hereinafter collectively referred to
as the "Property." The full legal description of the Property is the same as is
recorded with the Clerk of the Superior Court of the county in which the
Property is located and is made a part of this Agreement by reference.
2. PURCHASE PRICE. Buyer warrants that Buyer will have sufficient cash at
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closing, which when combined with the loan(s), if any, referenced herein, will
allow Buyer to complete the purchase of the Property. Buyer does not need to
sell or lease other real property in order to complete the purchase of the
Property. The purchase price of the Property to be paid by Buyer at closing is:
[SELECT ONE. THE OTHER IS NOT A PART OF THIS AGREEMENT.]:
A. [X] Six Hundred Thousand U.S. Dollars, ($600,000)
OR
B. [ ] shall have a survey made of the Property by a registered Georgia
Surveyor; if said survey is not mutually acceptable, the parties agree to
resolve that issue in accordance with the provisions of the "Survey Resolution
Exhibit" attached and made a part hereof by reference thereto. The total
purchase price shall be determined by multiplying the total number of acres, to
the nearest one one-hundredth of an acre determined by survey, by $
per acre.
3. METHOD OF PAYMENT. The purchase price of the Property shall be paid by
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the buyer at closing subject to the following: [SELECT SECTIONS A, B, C, AND/OR
D BELOW. THE SECTIONS NOT MARKED ARE NOT A PART OF THIS AGREEMENT.]:
[X] A. ALL CASH AT CLOSING: At closing, Buyer shall pay the purchase
price to Seller in cash, or its equivalent. Buyer's obligations to
close shall not be contingent upon Buyer's ability to obtain
financing. Buyer shall pay all closing costs.
[ ] B. LOAN TO BE ASSUMED: See Exhibit "_______."
[ ] C. NEW LOAN TO BE OBTAINED: This Agreement is made conditioned
upon Buyer's ability to obtain a loan (except if the loan is denied
because of Buyer's lack of sufficient cash to close excluding the
amount of the loan and/or because Buyer has not sold or leased other
real property) in the principal amount of _______% of the purchase
price listed above, with an interest rate at par of not more than
________% per annum on the unpaid balance, to be secured by a first
lien security deed on the Property; the loan to be paid in consecutive
monthly installments of principal and interest over a term of not less
than ____ years. "Ability to obtain" as used herein mean that Buyer is
qualified to receive the loan described herein based upon lender's
customary and standard underwriting criteria. The loan shall be of the
type selected below: [THE SECTIONS NOT MARKED ARE NOT A PART OF THIS
AGREEMENT.]
(1) LOAN TYPE: CONVENTIONAL; FHA (see attached exhibit); VA (see
attached exhibit); OTHER (see attached exhibit);
(2) RATE TYPE: FIXED RATE MORTGAGE LOAN; ADJUSTABLE RATE MORTGAGE
("ARM") LOAN;
(3) CLOSING COSTS AND DISCOUNT POINTS: At closing, _____________ shall
pay a sum not to exceed $______________ to be used at Buyer's
discretion to pay for closing costs, loan discount points, survey
costs, insurance relating to the property or loan and if allowed by
lender, other cost to close, including escrow and prepaid items. Buyer
shall pay any additional fees, costs, insurance premiums, or escrow
amounts to fulfill lender requirements or to otherwise close this
transaction.
(4) LOAN OBLIGATIONS: Buyer agrees to: (a) make application for the
loan within ________ (______) days from the Binding Agreement Date;
(b) immediately notify Seller of having applied for the loan and the
name of the lender; and (c) pursue qualification for and approval of
the loan diligently and in good faith. Should Buyer not timely apply
for the loan, Seller may terminate the Agreement if Buyer does not
within five (5) days after receiving written notice thereof cure the
default by providing Seller with written evidence of loan application.
Buyer agrees that a loan with terms consistent with those described
herein shall satisfy this loan contingency. Buyer may also apply for a
loan with different terms and conditions and close the transaction
provided all other terms and conditions of this Agreement are
fulfilled, and the new loan does not increase the costs charged to the
Seller. Buyer shall be obligated to close this transaction if Buyer
has the ability to obtain a loan with terms as described herein and/or
any other loan for which Buyer has applied and been approved.
[ ] D. SECOND LOAN TO BE OBTAINED, see Exhibit "_____."
4. XXXXXXX MONEY. Buyer has paid to Century-21-Xxx Xxxxxxx ("Holder") xxxxxxx
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money of $5,000.00 check, OR $0.00 cash, which has been received by Holder.
The xxxxxxx money shall be deposited in Holder's escrow/trust account (with
Holder retaining the interest if the account is interest bearing) within
five (5) banking days from the Binding Agreement Date and shall be applied
toward the purchase price of the Property at the time of closing. In the
event any xxxxxxx money check is not honored, for any reason, by the bank
upon which it is drawn, Holder shall promptly notify Buyer and Seller.
Buyer shall have three (3) banking days thereafter to deliver good funds to
Holder. In the event Buyer does not timely deliver good funds, the Seller
shall have the right to terminate this Agreement upon written notice to the
Buyer. Holder shall disburse xxxxxxx money only as follows: (a) upon the
failure of the parties to enter into a binding agreement; (b) at closing;
(c) upon a written agreement signed by all parties having an interest in
the funds; (d) upon order of a court or arbitrator having jurisdiction over
any dispute involving the xxxxxxx money; or (e) upon a reasonable
interpretation of this Agreement by Holder. Prior to disbursing xxxxxxx
money pursuant to a reasonable interpretation of this Agreement, Holder
shall give all parties fifteen (15) days notice by certified mail (to each
party's last known address), stating to whom the disbursement will be made.
Any party may object in writing to the disbursement, provided the objection
is received by Holder prior to the end of the fifteen (15)-day notice
period. All objections not raised in a timely manner shall be waived. In
the event a timely objection is made, Holder shall consider the objection
and shall do any or a combination of the following: (1) hold the xxxxxxx
money for a reasonable period of time to give the parties an opportunity to
resolve the dispute; (2) disburse the xxxxxxx money and so notify all
parties; and/or (3) interplead the xxxxxxx money into a court of competent
jurisdiction. Holder shall be reimbursed for and may deduct from any funds
interpleaded its costs and expenses, including reasonable attorneys' fees.
The prevailing party in the interpleader action shall be entitled to
collect from the other party the costs and expenses reimbursed to Holder.
No party shall seek damages from Holder (nor shall Holder be liable for the
same) for any matter arising out of or related to the performance of
Holder's duties under this xxxxxxx money paragraph. If Buyer breaches
Buyer's obligations or warranties herein, Holder may pay the xxxxxxx money
to Seller by check, which if accepted and deposited by Seller shall
constitute liquidated damages in full settlement of all claims of Seller.
5. CLOSING AND POSSESSION.
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A. PROPERTY CONDITION: Seller warrants that at the time of closing or upon
the granting of possession if at a time other than at closing, the Property
will be in the same condition as it was on Binding Agreement Date, normal
wear and tear excepted. Seller shall deliver Property clean and free of
debris at time of possession. If the Property is destroyed or substantially
damaged prior to closing, Seller shall promptly notify Buyer of the amount
of insurance proceeds available to repair the damage and whether Seller
will complete repairs prior to closing. Buyer may terminate this Agreement
not later than five (5) days after receiving such notice by giving written
notice to Seller. If Buyer does not terminate this Agreement, Buyer shall
receive at closing such insurance proceeds as are paid on the claim which
are not spent to repair the damage.
B. TAXES: Real estate taxes on said Property for the calendar year in which
the sale is closed shall be prorated as of the date of closing. Seller
shall pay State of Georgia property transfer tax.
C. CLOSING DATE AND POSSESSION: This transaction shall be closed on July 9,
2001, or on such other date as may be agreed to by the parties in writing;
provided, however, that: (1) the loan described herein is unable to be
closed on or before said date; or (2) Seller fails to satisfy valid title
objections, Buyer or Seller may by notice to the other party (which notice
must be received on or before the closing date) extend this Agreement's
closing date up to seven (7) days from the above-stated closing date. Buyer
agrees to allow Seller to retain possession of the Property until and
through closing or until __________, whichever is later.
D. WARRANTIES TRANSFER: Seller agrees to transfer to Buyer, at closing,
subject to Buyer's acceptance thereof, Seller's interest in any
manufacturer's warranties, service contracts, termite bond or treatment
guarantee and/or other similar warranties which by their terms may be
transferable to Buyer.
E. PRORATIONS: Seller and Buyer agree to prorate all utility bills between
themselves, as of the date of closing (or the day of possession of the
Property by the Buyer, whichever is the later) which are issued after
closing and include service for any period of time the Property was
owned/occupied by Seller or any other person prior to Buyer.
F. CLOSING CERTIFICATIONS: Buyer and Seller shall execute and deliver such
certifications, affidavits, and statements as are required at closing to
meet the requirements of the lender and of federal and state law.
6. SELLER'S PROPERTY DISCLOSURE. Seller's Lot/Land Disclosure Statement is
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attached hereto and incorporated herein. Seller warrants that to the best
of Seller's knowledge and belief the information contained therein is
accurate and complete as of the Binding Agreement Date.
7. TITLE.
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A. WARRANTY. Seller warrants that at the time of closing, Seller will
convey good and marketable title to said Property by general warranty deed,
subject only to: (1) zoning, (2) general utility, sewer, and drainage
easements of record on the Acceptance Date upon which the improvements do
not encroach; (3) subdivision and/or condominium declarations, covenants,
restrictions, and easements of record on the Acceptance Date; and (4)
leases and other encumbrances specified in this Agreement. Buyer agrees to
assume Seller's responsibilities in any leases specified in this Agreement.
B. EXAMINATION. Buyer may, prior to closing, examine title and furnish
Seller with a written statement of objections affecting the marketability
of said title. If Seller fails to satisfy valid title objections prior to
closing or any extension thereof, then Buyer may terminate the Agreement
upon written notice to Seller, in which case Buyer's xxxxxxx money shall be
returned. Good and marketable title as used herein shall mean title which a
title insurance company licensed to do business in Georgia will insure at
its regular rates, subject only to standard exceptions.
C. SURVEY. Any survey of the Property attached hereto by agreement of the
parties prior to the Binding Agreement Date shall be a part of this
Agreement. Buyer shall have the right to terminate this Agreement upon
written notice to Seller if a new survey performed by a surveyor licensed
in Georgia is obtained which is materially different from any attached
survey with respect to the Property, in which case Buyer's xxxxxxx money
shall be returned. The term "materially different" shall not apply to any
improvements constructed by Seller in their agreed-upon locations
subsequent to Binding Agreement Date. Matters revealed in said survey shall
not relieve the warranty of title obligations of Seller referenced above.
8. INSPECTION. Buyer and/or Buyer's representatives shall have the right to
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enter the Property at Buyer's expense and at reasonable times (including
immediately prior to closing) to thoroughly inspect, examine, test, and
survey the Property. Seller shall cause all utility services, if any, to be
operational so that Buyer may complete all inspections under this
Agreement. The Buyer agrees to hold the Seller and all Brokers harmless
from all claims, injuries, and damages arising out of or related to the
exercise of these rights. [SELECT SECTION A. OR B. BELOW. THE SECTION NOT
MARKED SHALL NOT BE PART OF THIS AGREEMENT.]
[ ] A. INSPECTION PROCEDURE. Buyer shall have the right and
Buyer's responsibility to review and inspect all aspects of the
Initials Property in accordance with the attached "Lot/Land Special
Stipulations Exhibit" which is made a part hereof.
OR
[ ] B. PROPERTY SOLD "AS IS." All parties agree that the
Buyer's Property is being sold "as is," with all faults. The Seller
Initials shall have no obligation for repairs or replacements noted
in any inspection(s) made by or for Buyer, except as may be
otherwise required herein. Such repairs or replacements
shall be the sole responsibility of Buyer.
9. OTHER PROVISIONS.
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A. BINDING EFFECT, ENTIRE AGREEMENT, MODIFICATION, ASSIGNMENT: This
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Agreement shall be for the benefit of, and be binding upon, Buyer and
Seller, their heirs, successors, legal representatives and permitted
assigns. This Agreement constitutes the sole and entire agreement between
the parties hereto and no modification or assignment of this Agreement
shall be binding unless signed by all parties to this Agreement. No
representation, promise, or inducement not included in this Agreement shall
be binding upon any party hereto. Any assignee shall fulfill all the terms
and conditions of this. Agreement.
B. SURVIVAL OF AGREEMENT: All conditions or stipulations not fulfilled at
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time of closing shall survive the closing until such time as the conditions
or stipulations are fulfilled.
C. GOVERNING LAW: This Agreement is intended as a contract for the purchase
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and sale of real property and shall be interpreted in accordance with the
laws of the State of Georgia.
D. TIME OF ESSENCE: Time is of the essence of this Agreement.
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E. TERMINOLOGY: As the context may require in this Agreement: (1) the
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singular shall mean the plural and vice versa, and (2) all pronouns shall
mean and include the person, entity, firm, or corporation to which they
relate.
F. RESPONSIBILITY TO COOPERATE: All parties agree to timely take such
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actions and produce, execute, and/or deliver such information and
documentation as is reasonably necessary to carry out the responsibilities
and obligations of this Agreement.
G. NOTICES: Except as otherwise provided herein, all notices, including
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demands, required or permitted hereunder shall be in writing and delivered:
(1) in person; (2) by an overnight delivery service, prepaid; (3) by
facsimile transmission (FAX); or (4) by the United States Postal Service,
postage prepaid, registered or certified return receipt requested. Notice
shall be deemed to have been given as of the date and time it is actually
received. Notwithstanding the above, notice by FAX shall be deemed to have
been given as of the date and time it is transmitted if the sending FAX
produces a written confirmation with the date, time and telephone number to
which the notice was sent. Receipt of notice by the Broker representing a
party as a client shall be deemed to be notice to that party for all
purposes herein except in transactions where the Broker is practicing
designated agency, in which case, receipt of notice only by the designated
agent representing a party as a client shall be required to constitute
notice to that party.
10. DISCLAIMER. Buyer and Seller acknowledge that they have not relied upon any
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advice, representations or statements of Brokers and waive and shall not
assert any claims against Brokers involving the same. Buyer and Seller
agree that Brokers shall not be responsible to advise Buyer and Seller on
any matter, including but not limited to the following: any matter which
could have been revealed through a survey, title search or inspection of
the Property; the condition of the Property, any portion thereof, or any
item therein; building products and construction techniques; the necessity
or cost of any repairs to the Property; hazardous or toxic materials,
termites and other wood-destroying organisms; the tax or legal consequences
of this transaction; the availability and cost of utilities or community
amenities; the appraised or future value of the Property, any condition(s)
existing off the Property which may affect the Property, the terms,
conditions and availability of financing; and the uses and zoning of the
Property whether permitted or proposed. Buyer and Seller acknowledge that
Brokers are not experts with respect to the above matters and that, if any
of these matters or any other matters are of concern to them, they shall
seek independent expert advice relative thereto. Buyer further acknowledges
that in every
neighborhood there are conditions which different buyers may find
objectionable. Buyer shall therefore be responsible to become fully
acquainted with neighborhood and other off-site conditions which could
affect the Property.
11. AGENCY AND BROKERAGE.
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A. AGENCY.
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1. In this Agreement, the term "Broker" shall mean a licensed Georgia real
estate broker or brokerage firm and where the context would indicate the
broker's affiliated licensees. No Broker in this transaction shall owe any
duty to Buyer or Seller greater than what is set forth in their brokerage
engagements and the Brokerage Relationships in Real Estate Transactions
Act, O.C.G.A. Sec. 10-6A-1 et. seq.
2. Seller and Buyer acknowledge that if they are not represented by a
Broker they are each solely responsible for protecting their own interests,
and that Brokers role is limited to performing ministerial acts for that
party.
3. The Broker, if any, working with the Seller is identified on the
signature page as the "Listing Broker," and said Broker is [X] , OR, is not
[ ] representing the Seller.
4. The Broker, if any, working with the Buyer is identified on the
signature page as the "Selling Broker," and said Broker is [X] , OR, is not
[ ] representing the Buyer; and
5. If Buyer and Seller are both being represented by the same Broker, a
relationship of either designated agency [X] , OR, dual agency [ ] shall
exist.
(a) DUAL AGENCY DISCLOSURE. [APPLICABLE ONLY IF DUAL AGENCY HAS BEEN
SELECTED ABOVE.] Seller and Buyer are aware that Broker is acting as a dual
agent in this transaction and consent to the same. Seller and Buyer have
been advised that:
(1) In serving as a dual agent the Broker is representing two clients
whose interests are or at times could be different or event adverse;
(2) The Broker will disclose all adverse, material facts relevant to
the transaction and actually known to the dual agent to all parties in
the transaction except for information made confidential by request or
instructions from another client which is not otherwise required to be
disclosed by law;
(3) The Buyer and Seller do not have to consent to dual agency; and
(4) The consent of the Buyer and Seller to dual agency has been given
voluntarily and the parties have read and understood their brokerage
engagement agreements.
(5) Material Relationship Disclosure. The Broker and/or affiliated
licensees have no material relationship with either client except as
follows: ____________________________________________________________.
(A material relationship means one actually known of a personal,
familial or business nature between the Broker and affiliated
licensees and a client which would impair their ability to exercise
fair judgment relative to another client.)
(6) Notwithstanding any provision to the contrary contained herein,
Seller and Buyer each hereby direct Broker, while acting as a dual
agent, to keep confidential and not reveal to the other party any
information which could materially and adversely affect their
negotiating position.
(b) DESIGNATED AGENCY ASSIGNMENT. [APPLICABLE ONLY IF THE DESIGNATED AGENCY
HAS BEEN SELECTED ABOVE.] The Broker has assigned Xxxxx Xxxxx to work
exclusively with Buyer as Buyer's Designated Agent and Xxxxxxx Xxxxxxx to
work exclusively with Seller as Seller's Designated Agent. Each Designated
Agent shall exclusively represent the party to whom each has been assigned
as a client and shall not represent in this transaction the client assigned
to the other Designated Agent.
B. BROKERAGE. The Broker(s) identified herein have performed valuable
brokerage services and are to be paid a commission pursuant to a separate
agreement or agreements. Unless otherwise provided for herein, the Listing
Broker will be paid a commission by the Seller, and the Selling Broker will
receive a portion of the Listing Broker's commission pursuant to a
cooperative brokerage agreement. The closing attorney is directed to pay
the commission of the Broker(s) at closing out of the proceeds of the sale.
If the sale proceeds are insufficient to pay the full commission, the party
owing the commission will pay any shortfall at closing. If more than one
Broker is involved in the transaction, the closing attorney is directed to
pay each Broker their respective portion of said commission. In the event
the sale is not closed because of Buyer's and/or Seller's failure or
refusal to perform any of their obligations herein, the non-performing
party shall immediately pay the Broker(s) the full commission the Broker(s)
would have received had the sale closed, and the Selling Broker and Listing
Broker may jointly or independently pursue the non-performing party for
their portion of the commission.
12. TIME LIMIT OF OFFER. This instrument shall be open for acceptance until
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5:00 o'clock P.M. on the 12 day of April, 2001.
13. EXHIBITS AND ADDENDA. All exhibits and/or addenda attached hereto, listed
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below, or referenced herein are made a part of this Agreement. If any such
exhibit or addendum conflicts with any proceeding paragraph, said exhibit
or addendum shall control: Exhibit "A" - Land/Lot Special Stipulations;
Exhibit "B" - Survey; Exhibit "C" - Seller's Property Disclosure.
SPECIAL STIPULATIONS: The following Special Stipulations, if conflicting with
any preceding paragraph shall control.
Xxxxx Xxxxx is a Director of Cherokee Bank
[ ] (Xxxx if additional pages are attached.)
CENTURY 21 Xxx Xxxxxxx Realty (STAN01)
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Selling Broker MLS Office Code Buyer's Signature: SS/FEI#
By: Xxxxx Xxxxx Cherokee Bank N.A., by Xxxxxx Xxxxxxxx Pres.
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Broker or Broker's Affiliated Licensee Print or Type Name
Xxxxx Xxxxx
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Print or Type Name Buyer's Signature: SS/FEI#
Bus Phone: (000) 000-0000 FAX # (000) 000-0000 --------------------------------------------
Print or Type Name
Multiple Listing #
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Seller's Signature: SS/FEI#
CENTURY 21 Xxx Xxxxxxx Realty (STAN01) Xxxxx Holding Company
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Listing Broker MLS Office Code Print of Type Name
By: Xxxxxxx Xxxxxxx
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Broker or Broker's Affiliated Licensee Seller's Signature: SS/FEI#
Xxxxxxx Xxxxxxx
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Print or Type Name Print of Type Name
Bus Phone: (000) 000-0000 FAX # (000) 000-0000
ACCEPTANCE DATE
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The above proposition is hereby accepted, 7 o'clock P.M. on the 18th day of
April, 2001.
BINDING AGREEMENT DATE
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This instrument shall become a binding agreement in the date ("Binding Agreement
Date") when notice of the acceptance of this Agreement has been received by
offeror. The offeror shall promptly notify offeree when acceptance has been
received.
