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EXHIBIT 10.1
AGREEMENT TO PURCHASE LAND
THIS AGREEMENT is made as of the Effective Date (as defined in the
last section of this Agreement) by and between MALL DEVELOPERS, LLC a limited
liability company (hereinafter referred to as "Seller"), LAND SOUTH PROPERTIES,
LLC, a Georgia limited liability company (hereinafter referred to as
"Purchaser"), HALL, BLOCK, GARLAND AND XXXXX (hereinafter referred to as
"Escrow Agent"), XXX XXXXXX ASSOCIATES, L.L.C., a Georgia limited liability
company, and XXXXX XXXXXXXX PROPERTIES, LLC, a Georgia limited liability
company (hereinafter collectively referred to as "Broker").
WHEREAS, Seller is the owner of the Property (as hereinafter defined):
and Seller has agreed to sell and Purchaser has agreed to purchase the
Property;
NOW, THEREFORE, in consideration of the agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Property: Seller hereby agrees to sell and Purchaser hereby
agrees to purchase from Seller, all that approximately 1 acre tact of land
located in District 7, Land Lot 186, in Gwinnett County, Georgia, and depicted
on Exhibit "A" attached hereto as Lot 4, together with all rights,
hereditaments, and appurtenances thereto, and together with all improvements
and fixtures located thereon (the "Property").
2. Xxxxxxx Money: Within three (3) business days after the
Effective Date, Purchaser shall deliver to the undersigned Escrow Agent the sum
of Twenty Thousand Dollars ($20,000.00) by check as Xxxxxxx Money in connection
with the transaction contemplated hereby. Such funds, together with any and all
notes, checks, letters of credit or cash that may be deposited as additional
Xxxxxxx Money hereunder, any and all proceeds thereof, and any and all interest
earned thereon is hereinafter referred to as the "Xxxxxxx Money". Escrow Agent
shall hold the Xxxxxxx Money in an account at an FDIC insured commercial bank.
The Xxxxxxx Money shall be retained or refunded, as the case may be, in
accordance with the terms of this Agreement and shall be applied as a credit to
the amount of cash required of Purchaser at Closing. Escrow Agent's duties are
more specifically defined in Section 10. Escrow Agent of the Agreement. In the
event of Purchaser's default pursuant to the Agreement, the Xxxxxxx Money shall
be paid to the Seller in full and final liquidated damages resulting from
Purchaser's default and Seller shall not have the right to xxx for specific
performance.
3.01 Purchase Price: The purchase price of the Property shall be
approximately Six Hundred Ninety Six Thousand Nine Hundred and Sixty Dollars
($696,900) which is calculated by multiplying the purchase price per square
foot (" Price Per Square Foot") to Sixteen Dollars ($16.00) by the number of
square feet comprising the Property which is estimated at 43,560 square feet.
The exact square footage of the Property shall be determined by a survey
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pursuant to Section 12 herein and the exact purchase price (the "Purchase
Price") of the Property shall be determined by multiplying the Price Per Square
Foot by the total number of square feet to the nearest 100th as determined by
the survey. After said new survey has been completed, Exhibit "A" hereto shall
automatically be amended to conform to a legal description based on said
survey.
3.02 The Purchase Price shall be paid as follows:
(a) Cash at Closing
4. Taxes and Expenses: Ad Valorem taxes constituting a lien
against the Property for the year in which the Closing occurs and all other
unpaid assessments shall be prorated as of the day of Closing. If the current
year's taxes and/or other applicable assessments have not been determined at
the time of Closing, the proration shall be based upon the previous year's
taxes and/or assessments. After Closing, at such time when any said taxes or
assessments are capable of an exact determination, the party having the
information permitting the exact determination shall send to the other party a
detailed report of the exact determination so made. Within twenty (20) days
after both Seller and Purchaser shall have received such report, Seller and
Purchaser shall adjust the amounts apportioned pursuant to the estimates made
at Closing to reflect the exact determinations contained in the report, and
Seller or Purchaser, as the case may be, shall pay to the other whatever amount
shall be necessary to compensate for the difference. Seller shall pay real
estate transfer tax. Purchaser shall pay the cost of title examination, title
insurance, survey, any cost associated with studies performed in the Inspection
Period and recording the Deed of Transfer. Each party shall pay its own
attorney's fees.
5. Closing:
(a) The closing or settlement ("Closing") of the
transaction contemplated hereby shall be held in or near Atlanta, Georgia at a
location acceptable to Seller and Purchaser on the earlier to occur of that
date that is the thirtieth (30th) day (or the next business day if such
thirtieth (30th) day is not a business day) after Southern Bank receives
confirmation of a State or Federal Bank charter or March 31, 2000. Purchaser
shall have the right to extend the Closing date to April 30th, 2000 by
providing Seller with written notice of its intention to extend said Closing on
or before March 31, 2000, accompanied by a check in the amount of $5,000
payable to Seller, which shall be nonrefundable to Purchaser in the event
Closing fails to occur but shall offset the Purchase Price in the event Closing
does occur. Notwithstanding anything in the Purchase Agreement to the contrary,
should Closing fail to occur by March 31, 2000 (or April 30,2000 as extended as
provided herein), the Purchase Agreement shall terminate and neither party will
have any further obligations hereunder.
(b) At closing, subject to the terms hereof, and as
contained in the Purchase Agreement:
(1) Purchaser shall pay to Seller the Purchase
Price, less a credit for the amount of the Xxxxxxx Money, and Escrow Agent
shall pay the Xxxxxxx Money to Seller.
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(2) Seller will transfer good and marketable
title to the Purchaser, subject to Seller's Declaration of Covenants,
Conditions and Restrictions a copy of which shall be provided to Purchaser no
later than thirty (30) days prior to the expiration of the Inspection Period,
and other matters of record, free and clear of all liens, encumbrances and any
other indebtedness or claim whatsoever, except for such other title exceptions
as are approved by Purchaser and specifically referenced in the Agreement.
6. Title: At Closing, Seller shall convey good, marketable and
insurable title to the Property to Purchaser by limited warranty deed. The
Title may be subject to current and future ad valorem property taxes,
easements, covenants and restrictions of record, including a management
association, the standard exceptions of the ALTA owners policy (excluding
survey exception), and zoning ordinances affecting the Property. The property
shall not be subject to any (a) mortgage, deed to secure debt, deed of trust,
security agreement judgment, lien or claim of lien, or any other title
exception or defect unacceptable to Purchaser that are monetary of nature, or
any other (b) leases, rental agreements or other rights of occupancy of any
kind, whether written or oral. Seller hereby agrees to pay and satisfy of
record at its expense any title exception or defect that is in the nature of a
Lien or other encumbrance to secure the payment of money. If the defects or
objections are not satisfied by Seller, Purchaser may elect to terminate this
Agreement, in which case the entire Xxxxxxx Money shall he returned to
Purchaser and neither party shall have any further rights, obligations or
duties under this Agreement. If Seller does so cure or satisfy the defects or
objections, then this Agreement shall continue in effect. Purchaser shall have
the right at any time to waive any objection that it may have made and thereby
to preserve this Agreement in effect. Seller agrees not to further alter or
encumber in any way Sellers Title to the Property after the Effective Date.
7. Inspection Period: Purchaser shall have seventy five (75)
days after the Effective Date (which period shall be referred to as the
"Inspection Period.") to conduct Purchaser's due diligence as to the
feasibility of developing the Property for its intended uses. Such
determinations may include sewer availability and cost feasibility, access
availability, engineering studies, wetlands studies and related Corp of
Engineers approvals and any other investigations as Purchaser in its sole
discretion deems appropriate. Prior to the end of the Inspection Period,
Purchaser shall notify Seller in writing if Purchaser elects to proceed with
its obligations under this Agreement. If Purchaser fails to give notice of
Purchaser's election to proceed within the Inspection Period, this Agreement
shall be thereby terminated, whereupon Escrow Agent shall pay to Seller as
option money Fifty Dollars ($50.00) of the Xxxxxxx Money and the remainder of
the Xxxxxxx Money shall be refunded to Purchaser.
8. Seller's Representations and Warranties: As of the Effective
Date and as of the date of Closing, Seller represents and warrants to Purchaser
that Seller owns fee simple absolute title to the Property subject to those
items specified in Section 6, and neither Seller's execution, delivery, nor
performance of this Agreement is prohibited by or will cause a default under
any other agreement, covenant, document, or instrument.
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9.01 Contingencies:
(a) The Closing, but not the return of the Xxxxxxx
Money, shall be contingent upon Purchaser or its assignee obtaining prior to
March 31, 2000, approval from the City of Xxxxxx and/or Gwinnett County for a
commercial building for use as a bank or other use acceptable to Seller. The
Closing shall also be contingent upon satisfactory water and sewer capacity.
(b) Prior to Closing, Seller shall rough grade the site
and compact the site to a 95% Xxxxxxx per a grading plan that shall be prepared
by Seller and delivered to Purchaser for its review within 15 days of the
Effective Date. Seller shall also constrict at its sole cost and expense the
Mill Creek Parkway as shown on the attached Exhibit A which shall be completed
no Later than 90 days after Closing.
(c) In the event Purchaser has not received confirmation
that Southern Bank has received a state or federal bank charter by February 28,
2000, the Purchase Agreement shall at Purchasers option, terminate and one-half
of the Xxxxxxx Money shall be returned to Purchaser and the other half will be
delivered to Seller and the parties shall have no further obligations under the
Purchase Agreement. In the event Purchaser does not elect to terminate the
Purchaser Agreement, the entire Xxxxxxx Money Deposit shall become
nonrefundable subject only to Sellers default.
(d) Purchaser represents that Southern Bank will file
for a state or federal bank charter prior to the end of the Inspection Period
and Purchaser agrees to provide Seller with written notice of such filing.
9.02 Conduct Prior to Closing: Subsequent to the date a Purchase
Agreement is executed by both parties, and until the date of closing:
(a) Seller will not
(1) Transfer, sell, assign, or otherwise convey
any other property adjacent to the Property, without first notifying Purchaser
who is purchasing said property and what the intended use they are
contemplating.
(2) Enter into any lease, contract, commitment,
or transaction in respect to the Property outside the ordinary course of
business, without the prior written consent of Purchaser.
(b) Seller shall at all times prior to Closing and at
its expense continue to maintain the Property in its present condition and
repair.
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9.03 Work Product: In the event Purchaser terminates the contract
under the terms hereunder or fails to close for any reason other than Seller
default, Purchaser shall deliver to Seller all engineering or other work
product related to the Property that has been prepared by Purchaser or its
agents or consultants.
10. Escrow Agent: In performing any of its duties hereunder,
Escrow Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for willful default or breach of trust, and it shall
accordingly not incur any such liability with respect (a) to any action taken
or omitted in good faith upon advice of its counsel or (b) to any action taken
or omitted in reliance upon any instruments, including any written notice or
instruction provided for in this Agreement, not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which Escrow Agent shall in
good faith believe to be genuine, to have been signed or presented by a proper
person or persons and to conform with the provisions of this Agreement. The
parties hereby agree to indemnify and hold harmless Escrow Agent against any
and all losses, claims, damages, liabilities and expenses, including reasonable
costs of investigations and counsel fees and disbursements, which may be
imposed upon Escrow Agent or incurred by Escrow Agent in connection with its
acceptance of the performance of its duties hereunder, including any litigation
arising from this Agreement or involving the subject matter hereof except for
willful default and breach of trust by Escrow Agent. In the event of a dispute
between any of the parties hereto sufficient in the discretion of Escrow Agent
to justify its doing so, Escrow Agent shall be entitled to tender into the
registry or custody of any court of competent jurisdiction all money or
property in its hands under this Agreement, and thereupon be discharged from
all further duties and liabilities under this Agreement. The Purchaser and
Seller shall bear all costs and expenses of any such legal proceedings.
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11. Brokers and Broker's Commission: Seller shall pay a
commission of five percent (5%) of the Purchase Price to Xxx Xxxxxx Associates,
LLC and Xxxxx Xxxxxxxx Properties, LLC ("Broker") at Closing to be split evenly
between the two. Seller and Purchaser acknowledge that Broker has represented
Seller in this transaction. Purchaser and Seller each warrant and represent to
the other that, with the exception of the Broker identified in this Section 11
hereof, such party has not employed a real estate broker or agent in connection
with the transaction contemplated hereby. Each party agrees to indemnify and
hold the other harmless from any loss of representation herein being untrue.
Seller hereby covenants and agrees to defend, indemnify, and hold harmless the
Purchaser against and from any and all loss, expense, liability, cost, claim,
demand, damages, action, cause of action, and suit arising out of or in any
manner relating to the alleged employment or use by Seller of any real estate
broker other than the above referenced Broker in connection with this
transaction. Purchaser hereby covenants and agrees to defend, indemnify, and
hold harmless the Seller against and from any and all loss, expense, liability,
cost, claim, demand, damages, action, cause of action, and suit arising out of
or in any manner relating to the alleged employment or use by Purchaser of any
real estate broker other than the above referenced Broker in connection with
this transaction. Purchaser and Seller each agree to release and hold Broker
harmless with respect to any information furnished to such party by Broker,
unless such party furnishes clear and convincing evidence that Broker have
knowingly furnished false information. Seller acknowledges that Purchaser is a
licensed real estate broker active in the State of Georgia.
12. Survey and Inspection: Seller shall provide, at Seller's
cost, a survey of the property by a Georgia licensed and registered surveyor,
which survey shall contain a calculation of the square footage within the
property to the nearest 100th of a square foot, exclusive of any areas
dedicated to the public, subject to any private right-of-way or constituting a
public street, road or highway, no later than the end of the Inspection Period.
If Seller's survey is not acceptable to Purchaser, Purchaser shall have the
right at Purchaser's sole cost and expense to appoint a second Georgia licensed
and registered surveyor whose survey (Purchaser's Survey) shall then be used in
computing the exact square footage to be used in computing the total Purchase
Price. If Purchaser's Survey is not acceptable to Seller, then Seller's
surveyor and Purchaser's surveyor shall appoint a third Georgia licensed and
registered surveyor whose survey shall be conclusive as to the exact square
footage to be used in calculating the Purchase Price. The cost of any such
third survey shall be borne equally by Purchaser and Seller. Purchaser and
Purchaser's agents, employees, and independent contractors shall have the right
and privilege to enter upon the property prior to Closing to survey and inspect
the Property and to conduct soil borings and geological testing and engineering
tests or studies. Purchaser hereby covenants and agrees to indemnify and hold
harmless Seller from any and all loss, liability, costs, claims, demands,
damages, actions, causes of action, and suits arising out of or in any manner
related to the exercise by Purchaser of Purchaser's rights under this section,
except that any loss, liability, cost, claims, demands, damages, actions,
causes of action, or suits caused by Seller's negligence, fraud, or willful
misconduct.
13. Eminent Domain: If, after the Effective Date and prior to
Closing, Seller shall receive notice of the commencement or threatened
commencement of eminent domain or other like proceedings against the Property
or any portion thereof, Seller shall promptly notify
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Purchaser in writing, and Purchaser shall elect within thirty (30) days from
and after such notice, but at all times prior to the otherwise established
closing, to: (a) terminate this transaction, in which event the Xxxxxxx Money
shall be refunded to Purchaser and the Agreement shall be void and of no
further force and effect; or (b) to close the transaction contemplated hereby
in accordance with its terms but subject to such proceedings, in which event
the Purchase Price shall remain the same and Seller shall transfer and assign
to Purchaser at Closing all condemnation proceeds and rights to additional
condemnation proceeds, if any. If Purchaser elects to purchase after receipt of
such notice, all actions taken by Seller with regard to such eminent domain
proceedings, including but not limited to, negotiations, litigation,
settlement, appraisals, and appeals, shall be subject to the approval of
Purchaser, which approval shall not be unreasonably withheld. If Purchaser does
not make such election within the aforesaid time period, Purchaser shall be
deemed to have elected to close the transaction contemplated hereby in
accordance with clause (b) above.
14. Environmental Matters: Seller warrants that to the best of
his knowledge, (i) no portion of the Property has been used as a landfill, (ii)
the Property does not contain, no activity on the Property has produced, and
the Property has not been used in any manner for the storage of any hazardous
or toxic materials, waste, discharge, deposit, dumping or contamination,
whether soil, ground water or otherwise, (iii) the Property does not contain
any underground tanks of any type, and there are no surface or subsurface
conditions that constitute, or with the passage of time may constitute a public
or private nuisance, and (iv) the Property does not contain any materials
containing or producing any polychlorinated biphenyls or asbestos. During the
Inspection Period, Purchaser shall he granted the opportunity to enter the
Property and perform, or have performed, any investigation which may be useful
to Purchaser in seeking to detect the presence of hazardous or toxic wastes or
other conditions referred to in this paragraph on the Property. In the event
that evidence of such contamination or conditions is discovered prior to
Closing, Purchaser shall have the right to terminate this Agreement and have
returned to it all Xxxxxxx Money paid under this Agreement.
15. Notice: Each notice required or permitted to be given
hereunder shall be delivered in person or by courier or by depositing it with
the United States Postal Service by certified mail, return receipt requested,
with adequate postage prepaid, addressed to the appropriate party (and marked
to a particular individual's attention) as hereinafter provided. Each such
notice that is delivered in person or by courier shall be effective when
delivered to the address specified herein, and each such notice that is sent by
certified mail shall be effective upon being so deposited with the United
States Postal Service, by the time period in which a response to any such
notice must be given or any action taken with respect thereto shall commence to
run from the earlier of the date of receipt of the notice by the addresses
thereof, or three (3) days after being deposited with the United States Postal
Service, if applicable. The addresses of the parties to which notices are to be
sent shall be those set forth on the signature pages of this Agreement. Any
party shall have the right from time to time to change the address to which
notices to it shall be sent by giving to the other party or parties at least
thirty (30) days prior notice of the changed address or additional addresses.
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16. Documents: At or prior to Closing, each party shall deliver
to the other party appropriate evidence to establish the authority of such
party to enter into and close the transaction contemplated hereby. Seller shall
also execute and deliver to Purchaser at Closing a (i) Limited Warranty Deed;
(ii) an affidavit for mechanics' or materialmen's liens, other statutory liens,
or for the rights of parties in possession; and (iii) a certificate with
respect to Section 1445 of the Internal Revenue Code stating, among other
things, that Seller is not a nonresident alien as defined in the Internal
Revenue Code and IRS Regulations. The parties shall also execute and deliver at
Closing any other documents reasonable necessary or appropriate to complete and
evidence the transaction contemplated hereby.
17. Remedies. If this transaction fails to close by reason of
Purchaser's failure to perform its obligations under this Agreement, the Escrow
Agent shall deliver, pursuant to this Agreement, the Xxxxxxx Money that Escrow
Agent has in its possession at that time to Seller as full liquidated damages,
the parties hereby acknowledging and agreeing that the amount of Seller's
actual damages in such circumstance would be difficult, if not impossible, to
determine and that the agreed upon liquidated damages are a reasonable
pre-estimate of the actual damages, are not punitive or penalties, and are
just, fair and reasonable, all in accordance with O.C.G.A. 13-6-7. Seller
expressly acknowledges and agrees that receipt of the Xxxxxxx Money as provided
herein shall be Seller's sole remedy in the event of Purchaser's failure to
perform its obligations hereunder, Seller expressly waiving all other rights or
remedies that Seller may have at law or in equity, including without
limitation, specific performance. In the event that Seller fails or refuses to
convey the Property in accordance with the terms of this Agreement or otherwise
fails to perform its obligations hereunder, then Purchaser shall have the right
to a refund of the Xxxxxxx Money or the right of specific performance, in
addition to all other rights and remedies available to Seller at law or in
equity for Seller's breach.
18. Miscellaneous: Time is of the essence with respect to each
and every provision of this Agreement. This Agreement constitutes the entire
agreement of the parties and may not be amended except by written instrument
executed by Purchaser and Seller. Escrow Agent and Brokers shall not be
necessary parties to amendments to this Agreement, but such amendments shall
not adversely affect or impair the rights or duties of Escrow Agent and Brokers
hereunder. The provisions of this Agreement relating to tax prorations after
Closing, Purchaser's indemnification with respect to its entering upon the
Property prior to Closing, and the mutual indemnification's concerning
brokerage commissions shall survive any Closing pursuant to this Agreement or
any termination of this Agreement by either party as a matter of right
hereunder or in breach Agreement, notwithstanding any other provisions in this
Agreement to the contrary. All other representations and agreements set forth
herein shall expressly survive the Closing of this transaction. This Agreement
shall he construed and interpreted in accordance with the laws of the State in
which the Property is located. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Purchaser may assign all or any portion of its rights under this
Agreement, and upon any such assignment, the assignor shall be released
automatically from all duties hereunder and Seller shall look solely to the
assignee for performance. If more than one person shall sign this Agreement as
a Seller, then each person so signing shall he jointly and severally liable.
The exhibits referred to in any attached document to this Agreement are
incorporated herein in full by reference. If the time
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period by which the Closing must he held expires on a Saturday, Sunday or legal
or bank holiday, then such time period shall automatically be extended through
the close of business on the next regularly scheduled business day.
19. Offer, Acceptance and Contract: This document shall
constitute an offer by Purchaser that shall be open for acceptance by Seller
until 5:00 p.m., Atlanta, Georgia, time, August 27, 1999. For purposes of this
Agreement, the "Effective Date" is that date that Purchaser shall have received
actual delivery of this Agreement properly executed by Seller.
IN WITNESS WHEREOF, the undersigned have set their hands and seals
hereto on the day and year indicated next to their respective signatures.
PURCHASER:
LandSouth Properties, LLC
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
By: /s/ Xxxx X. Xxxxxx Date: August 27, 1999
Its: Managing Member
SELLER:
Mall Developers, LLC
0000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
By: /s/ Xxxx X. Xxxxxx Date: September 7, 1999
Its: Member
Escrow Agent
Hall, Bloch, Garland and Xxxxx, LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
By: /s/ Hall, Bloch, Garland and Xxxxx, LLP Date: August 26, 1999
Its: Partner
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BROKER
Xxx Xxxxxx Associates, LLC (hereinafter referred to as BCA)
000 X. Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
By: /s/ Xxx Xxxxxx Associates, LLC Date: September 13, 1999
Xxxxx Xxxxxxxx Properties, LLC
00 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
By: /s/ Xxxxx Xxxxxxxx, Properties, LLC Date: September 9, 1999
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