PURCHASE AND SALE AGREEMENT
Exhibit
1.1
ARTICLE
1
PROPERTY/PURCHASE
PRICE
1.1 Certain Basic
Terms.
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(a)
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Purchaser
and Notice Address:
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Xxxx X. Xxxxxx MD
X.X. Xxx 0000
Xxxxxxxxxxx, XX
00000-0000
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(b)
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Seller
and Notice Address:
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First Federal Savings
Bank
ATTN: Xxxx
Xxxxxxxxxxx
X.X. Xxx 000
Xxxxxxxxxxx,
XX 00000-0000
(c) Effective
Date: The date the Agreement signed by Seller is received by
Purchaser as shown on the Signature Page.
(d) Purchase
Price: $700,000.00
(e) Xxxxxxx
Money: $1,000.00 to be paid to Seller upon the execution of this
Agreement.
(f) Closing
Date: As agreed to between Seller and Purchaser, but no later than 60
days after the effective date.
1.2 Terms of
Payment. At Closing, Purchaser shall pay to Seller the full
amount of the purchase price in full at closing.
ARTICLE
2
PROPERTY
2.1 Subject
to the terms of this Purchase and Sale Agreement (the “Agreement”), Seller
agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the
following property (the “Property”):
The real
property known as 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, more particularly described in Official Record Book Volume 194, Page
369, in the Register’s Office for Xxxxxxxxxx County, Tennessee, a copy of which
is attached hereto as Exhibit A; provided however, the attached legal
description shall be superceded by the survey obtained by Seller.
2.2 Xxxxxxx
Money. The Xxxxxxx Money, in immediately available federal
funds, evidencing Purchaser’s good faith to perform Purchaser’s obligations
under this Agreement, shall be deposited by Purchaser with Seller upon execution
of this Agreement. Such Xxxxxxx Money shall be applied to the
purchase price at closing.
ARTICLE
3
INSPECTIONS
3.1 Inspections in
General. Prior to closing, Purchaser, its agents, and
employees shall have the right to enter upon the Property for the purpose of
making non-invasive inspections at Purchaser’s sole risk, cost and
expense. All of such entries upon the Property shall be at reasonable
times during normal business hours and after at least 24 hours prior notice to
Seller, and Seller shall have the right to accompany Purchaser on any activities
performed by Purchaser on the Property. If any inspection or test
disturbs the Property, Purchaser will restore the Property to the same condition
as existed before the inspection or test.
3.2 Environmental Inspections
and Release. The inspections under Paragraph 3.1 may include a
non-invasive Phase I environmental inspection of the Property.
ARTICLE
4
TITLE AND SURVEY
REVIEW
4.1 Title
Exam. Purchaser may, at Purchaser’s expense, cause to be made
a preliminary report or title commitment covering the Property.
4.2 Survey. Seller
will obtain a new boundary survey at Seller’s expense.
4.3. Title
Policy. Purchaser may purchase a title policy at his
expense.
ARTICLE
5
OPERATIONS AND RISK OF
LOSS
5.1 Damage or
Condemnation. If at any time prior to the Closing Date, all or
any part of the Property is taken or appropriated by virtue of eminent domain or
similar proceedings or is condemned for any public or quasi-public use or is
destroyed by casualty, then Purchaser may terminate this
Agreement. If Purchaser terminates this Agreement, the Xxxxxxx Money
shall be refunded to Purchaser and Seller shall be entitled to receive all
insurance proceeds or condemnation proceeds paid for that portion of the
Property taken or destroyed. If Purchaser elects to maintain this
Agreement in full force and effect, then Purchaser shall be entitled to receive
all insurance proceeds or condemnation proceeds paid for that portion of the
Property taken or destroyed.
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ARTICLE
6
CLOSING
6.1 Closing. The
consummation of the transaction contemplated herein (“Closing”) shall occur on
the Closing Date at such location as Purchaser and Seller may
agree.
6.2 Conditions to the Parties’
Obligations to Close. The obligation of Seller, on the one
hand, and Purchaser, on the other hand, to consummate the transaction
contemplated hereunder is contingent upon the following:
(a) The
other party’s representations and warranties contained herein shall be true and
correct in all material respects as of the date of this Agreement and the
Closing Date;
(b) As
of the Closing Date, the other party shall have performed its obligations
hereunder and all deliveries to be made at Closing have been
tendered;
(c) There
shall exist no actions, suits, arbitrations, claims, attachments, proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, reorganization
or other proceedings, pending or threatened against the other party that would
materially and adversely affect the other party’s ability to perform its
obligations under this Agreement;
(d) There
shall exist no pending or threatened action, suit or proceeding with respect to
the other party before or by any court or administrative agency which seeks to
restrain or prohibit, or to obtain damages or a discovery order with respect to,
this Agreement or the consummation of the transaction contemplated
hereby;
(e) During
the inspection period, Purchaser may make any environmental
inspections. If Purchaser elects to close on the property, Purchaser
shall be purchasing same as is, and shall assume any and all liability for any
environmental issues that may exist at closing or at any time after with regard
to the subject realty.
So long as a party is not in default
hereunder, if any condition to such party’s obligation to proceed with the
Closing hereunder has not been satisfied as of the Closing Date, such party may,
in its sole discretion, terminate this Agreement by delivering written notice to
the other party on or before the Closing Date, or elect to close,
notwithstanding the non-satisfaction of such condition, in which event such
party shall be deemed to have waived any such condition. If such party elects to
close, notwithstanding the nonsatisfaction of such condition, there shall be no
liability on the part of the other party for breaches of representations and
warranties of which the party electing to close had knowledge as of the
Closing.
The closing of this transaction is
subject to Purchaser’s ability to obtain financing for the purchase
price. If Purchaser has not been able to secure financing prior to
the closing date, the contract shall terminate.
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6.3 Seller’s
Deliveries. At the Closing Date, Seller shall deliver the
following:
(a) Deed. A
general warranty deed (warranting title for acts by, through or under Seller)
(the “Deed”) in the form provided for under the law of the state where the
Property is located, or otherwise in conformity with the custom in such
jurisdiction and satisfactory to Seller, executed and acknowledged by Seller,
conveying, to Purchaser Seller’s title to the Property, subject only to the
Permitted Exceptions;
(b) Survey. A
survey of the Property in conformity with the custom in such
jurisdiction.
(c) State Law
Disclosures. Such disclosures and reports as are required by
applicable state and local law in connection with the conveyance of real
property;
(d) FIRPTA. A
Foreign Investment in Real Property Tax Act affidavit executed by Seller;
and
(e) Additional
Documents. Any additional documents that Escrow Agent or the
Title Company may reasonably require for the proper consummation of the
transaction contemplated by this Agreement.
6.4 Purchaser’s
Deliveries. At the Closing Date, Purchaser shall deliver the
Purchase Price, less the Xxxxxxx Money that is applied to the Purchase Price,
plus or minus applicable prorations as set forth in Article 7
below.
6.5 Possession. Seller
shall deliver possession of the Property to Purchaser at the
Closing.
6.6 Closing
Costs. At closing, Seller shall pay for the cost of the Deed
and Survey; Purchaser shall pay all other closing costs.
ARTICLE
7
PRORATIONS
7.1 Taxes and
Assessments. Real estate taxes and assessments imposed by
governmental authority that are not yet due and payable shall be prorated as of
the Closing based upon the most recent ascertainable assessed values and tax
rates. Seller shall receive a credit for any taxes and assessments
paid by Seller and applicable to any period after the Closing.
ARTICLE
8
DEFAULT AND
DAMAGES
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8.1 Default by
Purchaser. If Purchaser shall default in its obligation to
purchase the Property pursuant to this Agreement, Purchaser agrees that Seller
shall have the right to keep the Xxxxxxx Money as liquidated damages to
recompense Seller for time spent, labor and services performed, and the loss of
its bargain. Purchaser and Seller agree that it would be
impracticable or extremely difficult to affix damages if Purchaser so defaults
and that the stated amount represents a reasonable estimate of Seller’s
damages.
8.2 Default by
Seller. If Seller defaults in its obligation to sell and
convey the Property to Purchaser pursuant to this Agreement, Purchaser’s sole
remedy shall be to elect one of the following: (a) to terminate this
Agreement, in which event Purchaser shall be entitled to the return of the
Xxxxxxx Money, or (b) to bring a suit for specific performance provided that any
suit for specific performance must be brought within 120 days of Seller’s
default, to the extent permitted by law, Purchaser waiving the right to bring
suit at any later date. This Agreement confers no present right,
title or interest in the Property to Purchaser and Purchaser agrees not to file
a lis pendens or other similar notice against the Property except in connection
with, and after, the proper filing of a suit for specific
performance. Notwithstanding the foregoing, if specific performance
is unavailable to Purchaser because has conveyed the Property to a third party,
then Purchaser may xxx Seller for reimbursement of its actual out-of-pocket
expenses up to a maximum amount equal to the Xxxxxxx Money.
ARTICLE
9
MISCELLANEOUS
9.1 Parties
Bound. Neither party may assign this Agreement without the
prior written consent of the other, and any such prohibited assignment shall be
void. Notwithstanding the foregoing, Purchaser may assign its
interest in this Agreement at Closing to an affiliate entity (of which Purchaser
is controlled by or controls) but Purchaser shall remain liable for all
obligations hereunder. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the respective legal
representatives, successors, assigns, heirs, and devisees of the
parties.
9.2 Headings. The
article and paragraph headings of this Agreement are for convenience only and in
no way limit or enlarge the scope or meaning of the language
hereof.
9.3 Invalidity and
Waiver. If any portion of this Agreement is held invalid or
inoperative, then so far as is reasonable and possible the remainder of this
Agreement shall be deemed valid and operative, and effect shall be given to the
intent manifested by the portion held invalid or inoperative. The failure by
either party to enforce against the other any term or provision of this
Agreement shall not be deemed to be a waiver of such party’s right to enforce
against the other party the same or any other such term or provision in the
future.
9.4 Governing
Law. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the laws of the state of
Tennessee.
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9.5 Survival. Unless
otherwise expressly stated in this Agreement, each of the covenants,
obligations, representations, and agreements contained in this Agreement shall
survive the Closing and the execution and delivery of the Deed required
hereunder only for a period of 12 months immediately following the Closing
Date. Any claim based upon a misrepresentation or a breach of a
warranty contained in Article 8 of this Agreement shall be actionable or
enforceable if, and only if, notice of such claim is given to the party which
allegedly made such misrepresentation or breached such covenant, obligation,
warranty or agreement within 12 months after the Closing Date.
9.6 No Third Party
Beneficiary. This Agreement is not intended to give or confer
any benefits, rights, privileges, claims, actions, or remedies to any person or
entity as a third party beneficiary, decree, or otherwise.
9.7 Entirety and
Amendments. This Agreement embodies the entire agreement
between the parties and supersedes all prior agreements and understandings
relating to the Property except for any confidentiality agreement binding on
Purchaser, which shall not be superseded by this Agreement. This Agreement may
be amended or supplemented only by an instrument in writing executed by the
party against whom enforcement is sought.
9.8 Time. Time
is of the essence in the performance of this Agreement.
9.9 Attorneys’
Fees. Should either party employ attorneys to enforce any of
the provisions hereof, the party against whom any final judgment is entered
agrees to pay the prevailing party all reasonable costs, charges, and expenses,
including attorneys’ fees, expended or incurred in connection
therewith.
9.10 Notices. All
notices required or permitted hereunder shall be in writing and shall be served
on the parties at the addresses set forth in Paragraph 1.1. Any such
notices shall be either (a) sent by overnight delivery using a nationally
recognized overnight courier, in which case notice shall be deemed delivered one
business day after deposit with such courier, (b) sent by facsimile, with
written confirmation by overnight or first class mail, in which case notice
shall be deemed delivered upon receipt of confirmation of transmission of such
facsimile notice, or (c) sent by personal delivery, in which case notice shall
be deemed delivered upon receipt. Any notice sent by facsimile or
personal delivery and delivered after 5:00 p.m. Central Standard time shall be
deemed received on the next business day. A party’s address may be
changed by written notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual receipt of such notice.
Copies of notices are for informational purposes only, and a failure to give or
receive copies of any notice shall not be deemed a failure to give
notice.
9.11 Construction. The
parties acknowledge that the parties and their counsel have reviewed and revised
this Agreement and that the normal rule of construction, to the effect that any
ambiguities are to be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any exhibits or amendments
hereto.
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9.12 Calculation of Time
Periods. Unless otherwise specified, in computing any period
of time described herein, the day of the act or event after which the designated
period of time begins to run is not to be included and the last day of the
period so computed is to be included at, unless such last day is a Saturday,
Sunday or legal holiday for national banks in the location where the Property is
located, in which event the period shall run until the end of the next day which
is neither a Saturday, Sunday, or legal holiday. The last day of any
period of time described herein shall be deemed to end at 5:00 p.m. Clarksville,
Tennessee time.
9.13 Execution in
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of such
counterparts shall constitute one Agreement. To facilitate execution
of this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
9.14 WAIVER OF JURY
TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement on the day and year written below.
FIRST FEDERAL SAVINGS
BANK
Date: November
21,
2007 By:
/s/Xxx X.
Xxxxxxx
Title: Executive Vice
President
“SELLER”
Date: November
21,
2007 By:
/s/Xxxx X. Xxxxxx
MD
Xxxx X. Xxxxxx MD
“PURCHASER”
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