XXXXXXX 00.0
XXXXX XX XXXXX XXXXXXXX )
) AGREEMENT
COUNTY OF HORRY )
THIS AGREEMENT, made and entered into in the County and State aforesaid,
by and between SEA GARDEN, LLC, a South Carolina limited liability company
(herein designated "Seller"), and SEA GARDEN FUNDING, LLC, a South Carolina
limited liability company (herein designated "Buyer"):
WITNESSETH THAT:
For and in consideration of One Thousand Dollars ($1,000.00) in hand paid
by Buyer to Seller, receipt of which is hereby acknowledged, and the mutual
covenants contained herein, the parties agree as follows:
1. Sale. Seller hereby agrees to sell and Buyer agrees to purchase the
real and personal property hereinafter described, upon the terms and conditions
hereinafter stated.
2. Property. The Property, which is the subject of this Agreement, are all
of the Assets of the Seller including the real property described on Exhibit A
together with all improvements located on said real property and the Other
Assets described on Exhibit B. Exhibit A and Exhibit B are attached hereto and
made a part hereof.
3. Deposit and Return or Credit of Xxxxxxx Money. Buyer will deposit, upon
the signing of this contract, with Xxx & Associates, Inc., which shall serve as
escrow agent hereunder, xxxxxxx money of One Thousand and No/100 Dollars
($1,000.00) in cash. Buyer shall be entitled to immediate return of its xxxxxxx
money deposit for non-satisfaction of any Contract term, condition or
contingency, or upon any default by Seller. Otherwise, all of Buyer's xxxxxxx
money deposit shall be credited against the purchase price at closing. The
balance of said purchase price is to be paid in cash at closing.
4. Purchase Price. The purchase price of the Property consists of cash to
be paid to the members of the Seller and the assumption of liabilities of the
Seller. The purchase price is itemized in detail on Exhibit C, attached hereto
and made a part hereof, and includes:
(a) One Thousand and No/100 Dollars ($1,000.00) thereof paid at the
signing of this Agreement;
(b) The balance of the purchase price shall be paid in cash and by
the assumption of liabilities as of the date of closing.
5. Specific Contingencies. The obligations of Buyer under this Agreement
shall, at the option of Buyer, be subject to the following contingencies:
(a) Availability of public, or private water and sewer service
(including both sanitary sewer and storm drainage system) as necessary to
gravity feed at minimum depths the entire tract with adequate pressure and flow,
at the Property boundary, including all necessary easements, agreements, permits
or approvals, at no cost to Buyer or at costs acceptable to Buyer.
(b) Availability of electrical and telephone (and natural gas if
applicable) service to the Property.
(c) Availability of access to the Property, including all necessary
permits and approvals, with all existing roads, highways, rights-of-way and road
or highway plans having no adverse effect upon access to and full use of
Property acreage.
(d) Absence of any pending or proposed utilities service
moratoriums, eminent domain proceedings or adverse actions of other kinds by any
governmental authorities, private or public organizations or individuals.
(e) Absence of any laws, ordinances, regulations, restrictive
covenants, rights-of-way, easements, dedications or other public or private
encumbrances which would restrict Buyer's use of the property.
(f) Availability of flood hazard insurance for Property acreage
within any flood hazard area,
(g) Absence of any title defects or unapproved encumbrances and
absence of any survey disputes with respect to boundaries and acreage.
(h) Verification of Liabilities being assumed.
Buyer is to have 30 days from the date hereof to satisfy any and all
contingencies and to complete any other due diligence investigation Buyer deems
necessary. After the expiration of this 30-day period, unless Buyer and Seller
agree to an extension, the deposit described in paragraph 3, above, becomes
non-refundable and this agreement becomes firm.
6. Closing and Title. Closing shall be held on or before the expiration of
sixty (60) days after the date hereof, on such other date as the parties hereto
may agree. Seller agrees that upon the closing of the transaction contemplated
hereby, it will convey to Buyer good, marketable title to said real and personal
property by general warranty deed free and clear of all liens, restrictions,
easements and other encumbrances except current year's real property taxes and
by Assignment and/or Xxxx of Sale. Buyer shall have the right to have title to
the property examined by its attorney, and any time prior to closing, may advise
Seller of any objections to title. In the event of such notification, Seller
shall have fifteen (15) days from the date of such notification to remove or
correct such objections and Seller shall take all steps necessary to cure the
defects prior to closing. In the event Seller requires more than fifteen (15)
days to cure any title defect, then Buyer and Seller agree to extend the closing
by the actual days needed beyond the fifteen (15) day period, but in no event
shall the closing be extended past fifteen (15) days of the original contract
closing date. If Seller fails to remove or correct such objections, Buyer may
terminate this Agreement. Both Buyer and Seller contemplate that Seller will be
able to compromise any mechanics liens, judgments or other liabilities with the
cash proceeds of the sale contemplated herein. If this proves to be impossible,
Buyer shall have the option to terminate this Agreement or Buyer shall have the
option to increase the Purchase Price by such amounts as necessary to compromise
such mechanics liens, judgments or other liabilities. In the event Buyer elects
to terminate this Agreement, Seller shall return to Buyer any and all amounts
paid by Buyer to Seller hereunder, and in such event neither party shall have
any further liability or responsibility to the other arising out of this
Agreement. In the alternative, Buyer may waive its right to terminate this
Agreement and close this transaction without reduction of the purchase price.
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Closing to be held by the law firm of Xxxxxxxx Xxxxx & Xxxxxxxx, LLP in
Myrtle Beach, South Carolina.
Real and Personal property taxes in relation to the Property shall be
assumed by the Buyer. Seller shall at its own expense prepare the Deed of
General Warranty conveying the property to Buyer, in form satisfactory to Buyer
and pay the recording fee formerly known as deed stamps. Buyer shall pay all
other closing costs. Each of the parties hereto shall be responsible for the
payment of its own attorney's fees in the preparation and review of all
documents and agreements, which are a part of this transaction.
Seller shall on the Closing date deliver to Buyer full and exclusive
possession of the Property.
7. Survey. Property boundaries and improvements shall be determined by
reference to a recent survey of the property to be provided by Buyer.
8. Title Insurance. Seller will provide a title insurance commitment to
Buyer prior to closing insuring title to the property in Buyer's name, which
commitment shall contain only such specific record exceptions as will not impair
title to the Property, affect its value or affect Buyer's intended use or
development plans, and which shall insure without exception for, or delete or
insure over, all pre-printed and other standard exceptions, including but not
limited to rights of parties in possession, matters of survey, marital rights or
claims, unrecorded easements, unrecorded liens, and taxes or assessments not
shown as liens by the public records. Buyer shall, pay the title insurance
premium.
9. Risk of Loss; Insurance. The risk of loss or damage by fire or other
casualty prior to closing shall be upon Seller.
10. Access. Buyer, its employees, its agents, representatives and
contractors shall have reasonable rights of access to the Property for any
purpose related to this Agreement, on 24 hours' notice. Any damage diminishing
the fair market value of the Property shall be repaired at Buyer's expense in
the event that closing does not occur.
11. Closing Costs. Closing costs shall be paid as hereinabove provided.
12. Additional Closing Conditions.
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(a) The Property must be in substantially the same condition at
closing as on the date of this Agreement, reasonable wear and tear excepted.
(b) All mortgages, liens, unpaid taxes or assessment liabilities,
except as provided herein, must be paid at Closing,
(c) Title to the entire Property must be delivered at closing by
general warranty deed, free of all encumbrances, utility easements and subject
only to unviolated restrictive covenants that do not materially affect the value
or use of the Property. The Property must have legal access to a public
right-of-way.
(d) Seller shall furnish at closing an affidavit and indemnification
agreement in form satisfactory to Buyer that all labor, materials and services
furnished to the Property within ninety (90) days prior to the date of closing
have been paid and agreeing to indemnify Buyer against all loss from any cause
or claim arising therefrom; existing liens shall be discharged by bond.
13. Seller's Representations and Warranties. Seller agrees not to encumber
the Property or directly or indirectly cause the value of the Property to
diminish during the term of this Agreement without Buyer's written consent.
14. Default by Buyer. If Buyer shall fail to close the transaction in
accordance with the terms hereof, Seller may enforce the resulting contract at
law or in equity, or, at its option, retain the xxxxxxx money paid at the
signing hereof.
15. Default by Seller. If Seller shall fail to perform or comply with any
term of this Agreement, Buyer shall notify Seller of such default as provided
herein. Seller shall have thirty (30) days from receipt of such notice to cure
any default. If Seller shall have failed to cure any default within the thirty
(30) day period, Buyer shall have the option to rescind the Agreement and
receive full reimbursement of all payments made to Seller or to enforce this
Contract at law or in equity.
16. Hazardous Materials. With regard to the Property
(a) the term "hazardous materials" means any hazardous or toxic
substances, materials or wastes, including, but not limited to, those
substances, materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 C.F.R. 1.72.101) or by the
Environmental Protection Agency as hazardous substances (40 C.F.R. Part 302) and
any amendments thereto, or such substances, materials and wastes which are or
become regulated under any applicable local, state or federal law, including,
without limitation, any material, waste or substance which is (i) petroleum,
(ii) asbestos, (iii) polychlorinated biphenyls, (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section
1251, et seq., (33 U.S,C. Section 1321) or listed pursuant to Section 307 of the
Clean Water Act (33 U.S.C. Section 1317); (v) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., (42 U.S.C. Section 6903) or (vi) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq., (402
U.S.C. Section 9601).
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(b) Seller hereby warrants and represents that, to the best of
Seller's knowledge and belief, there are no Hazardous Materials on, under, in or
about the Property.
(c) Seller covenants and agrees that from the date hereof, and so
long as this Agreement shall remain in effect, not to cause or permit the
presence, use, generation, or release, discharge, storage, disposal or
transportation of any Hazardous Materials on, under, in, about, near, to or
from, the Property.
17. Brokers and Finders. Neither party has had any contact or dealings
regarding the Property, or any communications in connection with the subject
matter of this transaction, through any real estate broker or other person who
can claim a right to a commission or finder's fee in connection with the sale
contemplated herein.
18. Parties. This Agreement shall be binding and shall inure to the
benefit of the parties, their assignees, and their heirs, successors and
assigns.
The Buyer may assign this Agreement, provided such assignment shall cause
no delay in the closing, except as may be agreed by Seller.
19. Entire Agreement. This Agreement contains the entire agreement of the
parties and no representations, inducements, or other provisions shall be
binding upon the parties. All changes, additions or deletions to this Agreement
must be in writing and signed by all parties,
20. EXHIBIT C. CASH $210.000.00 that Xxxx Xxxxx, a principal in Sea
Garden, L.L.C. shall receive the sum of $39,273.51 from the $210,000.00 cash to
be paid by buyers in lieu of Certificate of Deposit number 330006228 issued and
held by Horry County State Bank as described in EXHIBIT B LISTING AND
DESCRIPTION OF OTHER ASSETS.
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WITNESSES:
WITNESS WHEREOF, the parties hereto have set their hands and seals this
21st day of October 2002.
WITNESSES: Seller:
SEA GARDEN, LLC
A South Carolina limited
liability company (SEAL)
By:
/s/Xxxxxxxxx Xxxxxxx /s/ illegible/President
----------------------------- -----------------------------------
Xxx & Associates, Inc., Member
/s/ Jetta Xxxx /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Xxxx X. Xxxxx, Member
Buyer:
SEA GARDEN FUNDING, LLC
A South Carolina limited
liability company (SEAL)
By Creative Holdings & Marketing
Corporation, Member
/s/ Xxxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
----------------------------- -----------------------------------
Xxxx X. Xxxxx, President and CEO
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EXHIBIT A
DESCRIPTION OF REAL PROPERTY:
LAND AND HNPrOVEMENTS: Xxxxxx 0-X., 0-X, 0-X, 0-X, 4-K, 0-X, 0-X, 0-X,
0-X, 4-P and 4-G (with improvements including a partially completed five unit
townhouse condominium building). Also, includiug portions of paved parking lots
with underground storm sewers. All of the aforementioned real property
consisting of 2.55 acres more or less as shown on the map of Closing Plat Phase
4 Sea Garden Toymhouses dated January 2, 2002, by Xxxxxx X. Xxxxxxx &
Associates, Inc. and recorded in Plat Book 181 at page 169 on January 25, 2002,
Also Xxxxxxxx 00 Xxxxx X, X, X, X and E of the Sea Garden Horizontal
Property Regime which was added to the regime by the twenty-sixth amendment to
the MASTER DEED FOR SEA GARDEN HORIZONTAL PROPERTY REGIME DATED AND RECORDED
JANUARY 10, 1997 IN DEED BOOK 1913 AT PAGE 0000, XXXXXXX XX XXX XXX XXXXXX XX
XXXXX XXXXXX. Said amendment recorded in Deed Book 2446 at Page 1387. The street
address of Building 34 is 000 0xx Xxxxxx, Xxxxx, Xxxxx Xxxxxx Xxxxx, Xxxxx
Xxxxxxxx.
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EXHIBIT B
LISTING AND DESCRIPTLOST OF OTHER ASSETS
All of the rights of Sea Garden, LLC as Developer of the Sea Garden
Horizontal Property Regime that are documented in the MASTER DEED FOR THE SEA
GARDEN HORIZONTAL PROPERTY REGIME DATED AND RECORDED JANUARY 10, 1997 IN DEED
BOOK 1913 AT PAGE 1002, RECORDS XX XXX XXX XXXXXX XX XXXXX XXXXXX as
subsequently amended. And all governmental permits, approvals, deposits, plans
and marketing materials and other assets of Sea Garden, LLC that axe in any way
related to or constitute a part of the development activities of Seller in its
development of the Sea Garden community and
Certificate of Deposit number 330006228 issued by Horry County State Bank
to Xxxx X. Xxxxx on August 18, 1997 in the amount of $50,000.00 less the amount
used to pay interest on the obligations of Sea Garden, LLC plus accrued interest
to the date of closing. On September 27, 2002 the value of this certificate of
deposit was $39,273.51. Homy County State Bank is holding the Certificate as
additional collateral four the obligations listed in Exhibit C, herein.
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