1
EXHIBIT 10.9
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into this 13-day of November, 1999,
by and among THE SUMMIT NATIONAL BANK, a wholly-owned subsidiary of SUMMIT BANK
CORPORATION, a Georgia corporation (hereinafter called "Seller"), and THREE
RIVERS LAND DEVELOPMENT, L.L.C., a Georgia limited liability company
(hereinafter called "Buyer") and SILFEN, SEGAL, FRYER & XXXXXXX, P.C., a Georgia
professional corporation (hereinafter called "Escrow Agent").
W I T N E S S E T H:
1. Agreement to Sell and Purchase. For and in consideration of the
Xxxxxxx Money, hereinafter defined, in hand paid by Buyer to the Escrow Agent
(as specified in Section 3 of this Agreement), the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Seller and Buyer,
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase and take from Seller, subject to and in accordance with all of the
terms and conditions of this agreement the following:
(a) All that certain lot, tract or parcel of improved real
estate more particularly described on Exhibit "A" attached hereto, together with
all plants, shrubs and trees located thereon, and together with all rights, ways
and easements appurtenant thereto, including, without limitation, all of
Seller's right, title and interest in and to the land underlying and the air
space overlying any public or private ways or streets crossing or abutting said
real estate (hereinafter called the "Land");
(b) All buildings, structures and other improvements of any
and every nature located on the Land and all fixtures attached or affixed,
actually or constructively, to the Land or to any such buildings, structures or
other improvements (hereinafter collectively called "Improvements"), including
but not limited to the buildings collectively known as 0000 Xxxxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx (i.e., the Peachtree Comers Branch of Summit
National Bank) located on the Land (hereinafter called the "Building");
(c) All of the right, title and interest accruing to the owner
of the Land and Improvements in, to and under (i) those management, service and
other contracts and agreements, if any, scheduled and identified on Exhibit "B"
attached hereto (hereinafter called the "Service Agreements"); and (ii) all
warranties, guaranties, certificates, licenses, permits, authorizations,
consents and approvals with respect to the use, occupancy, possession and
operation of the Land and Improvements (hereinafter called the "Permits").
The Land, Improvements, Service Agreements and Permits are hereinafter
collectively referred to as the "Property". In no event shall the Property
include any signage containing Seller's name (limited, however to only panels
containing Seller's name on any monument sign, and excluding any monument or
pylon structure), or Seller's automated
2
teller machines (i.e., ATM), night deposit box, drive-in equipment, or safes,
safe deposit boxes, TELLER COUNTERS, furniture, fixtures or equipment used in
the ordinary course of Seller's business, Buyer acknowledging that same shall
remain the property of the Seller and Seller's affiliates. Notwithstanding the
foregoing, should Seller elect to remove such items from the Property, Seller
shall promptly repair any damage caused by such removal, if any, and shall
restore the Property to a complete and suitable condition following such
removal.
2. Purchase Price; Method of Payment. The purchase price for the
Property (hereinafter called the "Purchase Price"), shall be Eight Hundred
Thousand and No/100 Dollars ($800,000.00). The Purchase Price, after crediting
the Xxxxxxx Money, and subject to the prorations and adjustments hereinafter
described, shall be paid by Buyer to Seller on the Closing Date by wire transfer
of funds to an account designated in writing by Seller.
3. Escrow Agent. Silfen, Segal, Fryer & Xxxxxxx, P.C. shall serve as
Escrow Agent pursuant to the terms and conditions of this Agreement. In
performing any of its duties hereunder, the 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 (i) 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 instrument, 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 the 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 Escrow Agent is hereby
specifically authorized to refuse to act except upon the written consent of
Seller and Buyer. Seller and Buyer hereby agree to indemnify and hold harmless
the Escrow Agent against any and all losses, claims, damages, liabilities and
expenses, including, reasonable costs of investigation and counsel fees and
disbursements, which may be imposed upon the Escrow Agent or incurred by the
Escrow Agent in connection with its acceptance or the performance of its duties
hereunder, including any litigation arising from this Contract or involving the
subject matter hereof. In the event of a dispute between Seller and Buyer
sufficient in the discretion of the Escrow Agent to justify its doing so, the
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
Contract, together with such legal pleadings as it deems appropriate, and
thereupon be discharged from all further duties and liabilities under this
Contract. Any such legal action may be brought in any court of competent
jurisdiction located in Xxxxxx County, Georgia or in such other court as the
Escrow Agent shall determine to have jurisdiction thereof. Seller and Buyer
shall bear all costs and expenses of any such legal proceedings. Seller
acknowledges, understands and agrees that (i) Escrow Agent is Buyer's counsel
and as such Escrow Agent has not and will not exercise any independent
professional judgment on Seller's behalf, and (ii) notwithstanding its role as
Escrow Agent hereunder, Escrow Agent may, in the event of a dispute between
Seller and Buyer act as Buyer's counsel and represent
-2-
3
Buyer in any dispute or litigation, whether or not Escrow Agent resigns and
appoints a successor or substitute escrow agent, which Seller and Buyer
specifically agree Escrow Agent may do. By executing this Agreement, Escrow
Agent acknowledges receipt of the Xxxxxxx Money.
4. Xxxxxxx Money. Within twenty-four (24) hours of full execution of
this Agreement, Buyer shall deliver to Escrow Agent the sum of Ten Thousand and
No/100 ($10,000.00) Dollars (hereinafter referred to as the "Xxxxxxx Money")
which shall be held by the Escrow Agent in accordance with the terms hereof. On
the Closing Date, the Xxxxxxx Money shall be applied as part payment of the
Purchase Price and paid to Seller. By executing the Escrow
Agreement, Escrow Agent acknowledges receipt of the Xxxxxxx Money.
5. Closing. The closing of the purchase and sale of the Property
(hereinafter called "Closing,") shall be held at the offices of Silfen, Segal,
Fryer & Xxxxxxx, P.C., Suite 410, 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
00000, at such time and on such date (hereinafter called the "Closing Date") as
may be specified by written notice from Buyer to Seller not less than three (3)
business days prior thereto; provide, however, that the Closing Date shall be
not more than thirty (30) days after expiration of the Due Diligence Period.
6. Access and Inspection; Delivery of Documents and Information by
Seller; Examination by Buyer.
(a) Between the date of this Agreement and the Closing Date,
Buyer and Buyer's agents and designees shall have the right to enter the
Property during normal business hours only for the purposes of inspecting the
Property, conducting, soil tests, and making surveys, mechanical and structural
engineering studies, zoning and permitting studies, lender feasibility studies,
appraisals, and any other investigations and inspections as Buyer may reasonably
require to assess the condition of the Property; provided, however, that such
activities by or on behalf of Buyer on the Property shall not materially damage
the Property, or unreasonably interfere with the use and occupancy of the
Property by Seller. Seller grants Buyer the right, during the period between the
date of this Agreement and the Closing Date, to commission any necessary or
prudent environmental assessments of the Property in a scope and by an
environmental firm acceptable to Buyer, and Seller shall assist and cooperate in
and with said assessment as reasonably requested by Buyer. The costs of the
foregoing examinations, studies and inspections shall be paid by Buyer. Buyer
shall and hereby does indemnify and hold Seller harmless from and against any
and all liability due to the acts or negligence of Buyer and its agents due to
such parties' entry upon the Property for the purpose of either inspecting the
Property or any other exercise of the rights of Buyer under this Agreement.
(b) Within five (5) days after the execution hereof, Seller
shall deliver to Buyer, if not previously delivered, or make available to Buyer
for examination and/or
-3-
4
copying by Buyer, at the address for Buyer set forth herein, the following
documents and information with respect to the Property:
(i) All plans, specifications, engineering and
mechanical and reports, including environmental reports, relating to the
Property which are in Seller's possession;
(ii) Copies of all maintenance records, Permits and
Service Agreements relating to the
Property;
(iii) Unless other-wise provided hereunder, copies of
all maintenance records relating to Capital Repairs of the Property. For
purposes of this Agreement, "Capital Repairs" shall mean the repair or
replacement of the roof, floors, appliances, structural elements, or the
plumbing, HVAC or electrical systems serving, the Property, and such other items
having a useful economic life of at least three (3) years, which do not
constitute maintenance or repair of "ordinary wear and tear" to the Property,
and which add value to the Property;
(iv) Seller's title insurance policies with respect
to the Property; and
(v) Such other documents in Seller's possession or
control regarding the Property which Buyer may reasonably request.
(c) Buyer shall have until forty-five (45) days after deposit
of the Xxxxxxx Money (the "Due Diligence Period"), in which to examine and
investigate the Property, and to determine whether the Property is suitable and
satisfactory to Buyer. In the event that Buyer shall determine, in Buyer's sole
and absolute judgment and discretion, that the Property is in any manner
unsuitable or unsatisfactory to Buyer, Buyer shall have the right, at Buyer's
option, to terminate this Agreement by giving written notice thereof to Seller
on or before such date, in which event the Xxxxxxx Money shall be refunded to
Buyer immediately upon request, all rights and obligations of the parties under
this agreement shall expire, and this Agreement shall become null and void.
Seller acknowledges that Buyer will expend time, money and other resources in
connection with the examination and investigation of the Property hereinabove
described, and that, notwithstanding the fact that Buyer may terminate this
Agreement pursuant to this paragraph, such time, money and other resources
expended constitutes good, valuable, sufficient and adequate consideration for
Seller's execution of and entry into this Agreement. In the event that Buyer
does not terminate this Agreement on or before expiration of the Due Diligence
Period, the Xxxxxxx Money shall be non-refundable, except as otherwise may be
provided hereunder,
7. Prorations and Adjustments to Purchase Price. The following
prorations and adjustments shall be made between Buyer and Seller as of the day
of Closing, or thereafter if Buyer and Seller shall agree:
-4-
5
(a) All city, state and county ad valorem taxes and similar
impositions levied or imposed upon or assessed against the Property (hereinafter
called the "Taxes"), for the year in which Closing occurs shall be prorated as
of the Closing Date. In the event the Taxes for such year are not determinable
at the time of Closing, said taxes shall be prorated on the basis of the best
available information, and the parties shall re-prorate the Taxes for such year
promptly upon the receipt of the tax bills for such year and shall make between
themselves any equitable adjustment required by reason of any difference between
the estimated amount of the Taxes used as a basis for the proration at Closing
and the actual amount of the Taxes for such year. In the event any of the Taxes
are due and payable at the time of Closing, the same shall be paid at Closing.
If the Taxes are not paid at Closing, Seller shall deliver to Buyer the bills
for the Taxes promptly upon receipt thereof and Buyer shall thereupon be
responsible for the payment in full of the Taxes within the time fixed for
payment thereof and before the same shall become delinquent.
(b) All utility charges for the Property (including, without
limitation, telephone, water, storm and sanitary sewer, electricity, gas,
garbage and waste removal) shall be prorated as of the Closing Date, transfer
fees required with respect to any such utility shall be paid by or charged to
Buyer, and Seller shall be credited with any deposits transferred to the account
of Buyer; provided, however, that at either party's election any one or more of
such utility accounts shall be closed as of the Closing Date, in which event
Seller shall be liable and responsible for all charges for service incurred by
Seller through the Closing Date and shall be entitled to all deposits
theretofore made by Seller with respect to such utility, and Buyer shall be
responsible for reopening and reinstituting such service in Buyer's name, and
shall be responsible for any fees, charges and deposits required in connection
with such new account.
(c) Any other items which are customarily prorated in
connection with the purchase and sale of properties similar to
the Property shall be prorated as of the Closing Date.
8. Title.
(a) Seller covenants to convey to Buyer at Closing a good and
marketable fee simple title in and to the Property via Warranty Deed. For the
purposes of this agreement, "good and marketable fee simple title" shall mean
fee simple ownership which is: (i) free of all defects, claims, liens and
encumbrances of any kind or nature whatsoever other than the Permitted
Exceptions, hereinafter defined; and (ii) insurable by a title insurance company
reasonably acceptable to Buyer, at then current standard rates under the
standard form of ALTA owner's policy of title insurance, with the standard
printed exceptions therein deleted and without exception other than for the
Permitted Exceptions.
-5-
6
(b) For the purposes of this Agreement, the term "Permitted
Exceptions" shall mean: (i) Seller's existing first mortgage; (ii) current city,
state and county ad valorem taxes not yet due and payable; (iii) easements for
the installation or maintenance of public utilities serving only the Property;
and (iv) such other matters, if any, as may be listed as permanent exceptions in
Seller's title insurance policy together with subsequent matters not materially
or adversely affecting the marketability of Seller's title.
Buyer shall have until thirty (30) days after deposit of the Xxxxxxx Money in
which to examine title to the Property and in which to give Seller written
notice of objections which render Seller's title to the Property less than good
and marketable fee simple. Thereafter, Buyer shall have until the Closing Date
in which to reexamine title to the Property and in which to give Seller written
notice of any additional objections of any subsequent matters arising since the
initial title examination disclosed by such reexamination. Seller shall have
until the Closing Date in which to satisfy all valid objections specified in any
notice by Buyer of title objections.
9. Survey. Buyer shall have the right to cause an as-built survey of
the Property to be prepared by a surveyor registered and licensed in the State
of Georgia and designated by Buyer. Such survey shall depict such information as
Buyer shall require. In addition to delivery of the Warranty Deed to the
Property, the Seller shall be obligated to deliver to Buyer at Closing a Quit
Claim Deed to any land depicted on said survey not included within the
description of the Property described on Exhibit "A" hereto.
10. Proceedings at Closing. On the Closing Date, the Closing shall
take place as follows:
(a) Seller shall deliver to Buyer the following documents and
instruments, duly executed by Seller:
(i) a Warranty Deed in recordable form conveying and
demising the Property as described on Exhibit "A";
(ii) a Quitclaim Deed in recordable form conveying
the land described by the survey but not included in the Property;
(iii) a seller's affidavit with respect to the
Property in a form and substance reasonably satisfactory to Buyer and Buyer's
title insurer;
(iv) if Seller is not a Foreign Person (as defined in
Section 1445 of the Internal Revenue Code of 1986, as amended), a certificate
and affidavit of non-foreign status in a form and substance reasonably
satisfactory to counsel for Buyer;
-6-
7
(v) all such certificates and affidavits, in a form
and substance reasonably satisfactory to counsel for Buyer, with respect to any
tax withholding requirements imposed on sellers of real property under the laws
of the State of Georgia;
(vi) a certificate in form and substance reasonably
satisfactory to counsel for Buyer that the representations and warranties of
Seller in this Agreement are true and correct on and as of the Closing Date; and
(vii) the signed lease referenced in Section 14(b).
(b) Seller shall deliver to Buyer the following, if the same
have not been theretofore delivered by Seller to Buyer:
(i) Evidence in form and substance reasonably
satisfactory to Buyer that Seller has the power and authority to execute and
enter into this Agreement and to consummate the purchase and sale of the
Property, and that any and all actions required to authorize and approve the
execution of and entry into this Agreement by Seller, the performance by Seller
of all of Seller's duties and obligations under this Agreement, and the
execution and delivery by Seller of all documents and other items to be executed
and delivered to Buyer at Closing have been accomplished;
(ii) To the extent the same are in the possession of
Seller on the date of Seller's execution of this Agreement, the most recent
prior survey of the Land or any portion thereof and all plans and specifications
for any of the Improvements; and
(iii) The Service Agreements and the Permits.,
(c) Buyer shall deliver to Seller the following documents,
instruments and things, duly executed by Buyer:
(i) The Purchase Price, in accordance with the
provisions of this Agreement;
(ii) A certificate, in form and substance reasonably
satisfactory to counsel for Seller, to the effect that the representations and
warranties of Buyer in this Agreement are true and correct on and as of the
Closing Date;
(iii) The signed lease referenced in Section 14(b);
and
(iv) Evidence in form and substance reasonably
satisfactory to Seller that Buyer has the power and authority to execute and
enter into this Agreement and to consummate the purchase and sale of the
Property, and that any and all actions required to
-7-
8
authorize and approve the execution of and entry into this Agreement by Buyer,
the performance by Buyer of all of Buyer's duties and obligations under this
Agreement, and the execution and delivery by Buyer of all documents and other
items to be executed and delivered to Seller at Closing have been accomplished.
11. Costs of Closing. Seller shall pay Seller's attorneys' fees, the
State of Georgia Realty Transfer Tax payable on the transfer of the Property and
all recording costs of the conveyance documents but not the Buyer's loan
documents. Buyer shall pay the cost of any survey obtained pursuant to Section 9
hereof, the premium for any owner's policy of title insurance issued in favor of
Buyer insuring Buyer's title to the Property (if Buyer elects to purchase same),
and Buyer's attorneys' fees. All other costs and expenses of the transaction
contemplated hereby shall be borne by the party incurring the same.
12. Warranties, Representations and Additional Covenants of Seller.
Seller represents, warrants and covenants to and with Buyer, knowing that Buyer
is relying on each such representation, warranty and covenant, that:
(a) Seller is duly organized, validly existing, and in good
standing under the laws of the State of Georgia. Seller has the power to own its
properties and assets and to carry on its business as it is now being conducted.
Seller has good and marketable fee simple title to all of the Property (other
than deeds to secure debt and related collateral documentation securing
indebtedness which will be cancelled and satisfied of record at Closing). Seller
has full power to execute and perform this Agreement and to transfer the
Property as herein provided, and such execution and performances does not
conflict with any provisions of its organizational documents or with any
contract or other instrument to which Seller is a party or to which it is bound.
This Agreement, and the covenants and agreements of Seller under this Agreement,
are the valid and binding obligations of Seller, enforceable in accordance with
their terms;
(b) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will cause, or give any
person ground to cause, the maturity, acceleration or increase of any liability
or obligation of Seller. There are no actions, suits or proceedings pending or
threatened against, by or affecting Seller which affect title to the Property,
or which question the validity or enforceability of this Agreement or of any
action taken by Seller under this Agreement, in any court or before any
governmental authority, domestic or foreign. There are no pending, threatened or
contemplated condemnation actions involving all or any portion of the Property;
(c) The Property is not subject to any special taxes,
assessments, or unrecorded agreements. The Seller has not received any notice
that the Property has been constructed, occupied, used or operated in violation
of any zoning, building, health, environmental or other laws, codes, ordinances,
regulations, orders or requirements of any
-8-
9
city, county, state or other governmental authority having jurisdiction
thereof, or any private restrictive covenants affecting the Property. To the
best of Seller's knowledge, information and belief, all certificates, licenses,
permits, authorizations, consents and approvals required by any such
governmental authority for the continued use, occupancy and operation of the
Property have been obtained;
(d) There are no management, maintenance service or other
contracts with respect to the Property, other than those listed on Exhibit "B"
hereto. On the Closing Date, Seller will not be indebted to any contractor,
laborer, mechanic, materialman, architect or engineer for work, labor or
services performed or rendered, or for materials supplied or furnished, in
connection with the Property for which any such person could claim a lien
against the Property;
13. Warranties, Representations and Covenants of Buyer. Buyer
represents, warrants and covenants to and with Seller, knowing that Seller is
relying on each representation, warranty and covenant, that:
(a) Buyer is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Georgia.
Buyer has the power to own its properties and assets and to carry on its
business as it is now being conducted;
(b) There are no actions, suits or proceedings pending or
threatened against, by or affecting Buyer which question the validity or
enforceability of this Agreement or of any action taken by Buyer under this
Agreement, in any court or before any governmental authority, domestic or
foreign;
(c) The execution of and entry into this Agreement and the
performance by Buyer of Buyer's duties and obligations under this Agreement and
of all other acts necessary and appropriate for the full consummation of the
purchase and sale of the Property as contemplated by and provided for in this
Agreement, are consistent with and not in violation of, and will not create any
adverse condition under, any contract, agreement or other instrument to which
Buyer is a party, or any judicial order or judgment of any nature by which
Buyer, or any officer of Buyer, is bound;
(d) This Agreement, and the covenants and agreements of Buyer
under this Agreement, are the valid and binding obligations of Buyer,
enforceable in accordance with their terms; and
(e) Buyer will deliver on the Closing Date all documents and
instruments required by this Agreement and perform all acts necessary or
appropriate for the consummation of the purchase and sale of the Property as
contemplated by and provided for in this Agreement.
-9-
10
14. Conditions of Buyer's Obligations. Buyer's obligation to
consummate the purchase and sale of the Property on the Closing Date shall be
subject to the satisfaction or performance of the following, terms and
conditions, any one or more of which may be waived by Buyer, in whole or in
part, on or as of the Closing Date:
(a) Seller shall have fully and completely kept, observed,
performed, satisfied and complied with all terms, covenants, conditions,
agreements, requirements, restrictions and provisions required by this Agreement
to be kept, observed, performed, satisfied or complied with by Seller before, on
or as of the-Closing Date;
(b) The execution of a Lease Agreement between Buyer (as
Landlord) and Seller (as Tenant) for a portion of the Property, upon such terms
and conditions as are outlined in a non-binding letter of intent dated August
27, 1999 and accepted by Seller on September 2, 1999, together with such
additional terms and conditions as are agreed to by the parties.
(c) The representations and warranties of Seller in this
Agreement shall be true and correct, and certified by Seller to Buyer as such,
on and as of the Closing Date, in the same manner and with the same effect as
though such representations and warranties had been made on and as of the
Closing Date; and, notwithstanding the fact that such representations and
warranties may be limited to Seller's knowledge and belief of the truth of the
facts, assertions and matters contained therein, the facts, assertions and
matters contained in each of such representations and warranties shall be true
and correct on and as of the Closing Date; and
(d) Buyer shall not have terminated this Agreement pursuant to
an express right so to terminate set forth in this Agreement.
If any of the foregoing conditions have not been satisfied or performed on or as
of the Closing Date, Buyer shall have the right, at Buyer's option, either (i)
to terminate this Agreement by giving written notice to Seller on or before the
Closing Date, in which event all rights and obligations of the parties under
this Agreement shall expire, and this Agreement shall become null and void, or
(ii) if such failure of condition constitutes a default by Seller under this
Agreement, to exercise such rights and remedies as may be provided for in
Section 18(b) of this Agreement. In either of such events, the Xxxxxxx Money
shall be refunded to Buyer immediately upon request.
15. Conditions of Seller's Obligations. Seller's obligation to
consummate the purchase and sale of the Property on the Closing Date shall be
subject to the satisfaction or performance of the following terms and
conditions, any one or more of which may be waived by Seller, in whole or in
part, on or as of the Closing Date:
-10-
11
(a) Buyer shall have fully and completely kept, observed,
performed, satisfied and complied with all terms, covenants, conditions,
agreements, requirements, restrictions and provisions required by this Agreement
to be kept, observed, performed, satisfied or complied with by Buyer before, on
or as of the Closing Date;
(b) The execution of a Lease Agreement between Buyer (as
Landlord) and Seller (as Tenant) for a portion of the Property, upon such terms
and conditions as are outlined in a non-binding letter of intent dated August
27, 1999 and accepted by Seller on September 2, 1999, together with such
additional terms and conditions as are agreed to' by the parties; and
(c) The representations and warranties of Buyer in this
Agreement shall be true and correct, and certified by Buyer to Seller as such,
on and as of the Closing Date, in the same manner and with the same effect as
though such representations and warranties had been made on and as of the
Closing Date; and, notwithstanding the fact that such representations and
warranties may be limited to Buyer's knowledge and belief of the truth of the
facts, assertions and matters contained therein, the facts, assertions and
matters contained in each of such representations and warranties shall be true
and correct on and as of the Closing Date.
If any of the foregoing conditions have not been satisfied or performed on or as
of the Closing Date, Seller shall have the right, at Seller's option, either (i)
to terminate this Agreement by giving written notice to Buyer on or before the
Closing Date, in which event all rights and obligations of the parties under
this Agreement shall expire, and this Agreement shall become null and void, or
(ii) if such failure of condition constitutes a default by Buyer under this
Agreement, to exercise such rights and remedies as may be provided for in
Section 18(a) of this Agreement.
16. Other Offers and Exclusive Dealing. Unless and until this
Agreement is terminated or the transactions described herein consummated, Seller
shall neither directly nor indirectly, (a) solicit, initiate, encourage or
entertain submission of proposals or offers from any person or entity relating
to the sale of the Property or any portion thereof, (b) participate in any
discussions or negotiations regarding, or, except as required by a legal or
judicial process, furnish to any other person or entity any information with
respect to, or otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other person or entity to
purchase the Property or any portion thereof, or (c) consummate any transaction
involving sale or conveyance of the Property or any portion thereof. Seller
shall promptly communicate to Buyer the terms of any such proposal or offer upon
knowledge or receipt of such proposal or offer or upon knowledge that such a
proposal or offer is likely to be made.
-11
12
17. Possession at Closing. Seller shall surrender possession of the
Property to Buyer on the Closing Date.
18. Remedies.
(a) If the purchase and sale of the Property is not
consummated in accordance with the terms and conditions of this Agreement due to
circumstances or conditions which constitutes a default by Buyer under this
Agreement, the Xxxxxxx Money shall be delivered to Seller, and such amounts are
not intended as a penalty against Buyer, but rather as a pre estimate of the
probable loss and shall constitute the full liquidated damages for such default.
The parties acknowledge that Seller's actual damages in the event of a default
by Buyer under this Agreement will be difficult to ascertain, and that such
liquidated damages represent the parties' best estimate of such damages. The
parties expressly acknowledge that the foregoing liquidated damages, as
permitted by O.C.G.A. ss. 13-6-7, in the event of Buyer's default and as
compensation for Seller's taking the Property off the market during the term of
this Agreement. Such liquidated damages shall be the sole and exclusive remedy
of Seller by reason of a default by Buyer under this Agreement, and Seller
hereby waives and releases any right to xxx Buyer, and hereby covenants not to
xxx Buyer, for specific performance of this Agreement or to prove that Seller's
actual damages exceed the amount which is herein provided Seller as full
liquidated damages.
(b) If the purchase and sale of the Property is not
consummated in accordance with the terms and conditions of this Agreement due to
circumstances or conditions which constitute a default by Seller under this
Agreement, the Xxxxxxx Money shall be refunded to Buyer, immediately upon
request, and Buyer may exercise as its sole and exclusive remedies an action for
specific performance and/or damages up to, but not in excess of, $50,000.00 in
damages. In no event shall Buyer be entitled to assert a claim against Seller
for damages in excess of $50,000.00. Further, in the event Buyer desires to
assert a claim for specific performance against Seller, then Buyer must do so
within ninety (90) days of a default under this Agreement by Seller. After such
ninety (90) day period, Buyer shall not be entitled to bring a claim against
Seller for specific performance but shall be limited to a claim for damages up
to, but not in excess of, $50,000.00.
19. Risk of Loss and Insurance. (a) Between the date of this Agreement
and Closing, the risks and obligations of ownership and loss of the Property and
the correlative rights against insurance carriers and third parties shall belong
to Seller.
(b) In the event of the damage or destruction of a material
portion of the Property (which, for purposes hereof, shall mean that the cost of
repair shall be more than fifty percent (50%) of the Purchase Price), Buyer
shall have the right, at Buyer's option, to terminate this Agreement by giving
written notice thereof to Seller prior to Closing, in which event the Xxxxxxx
Money shall be refunded to Buyer, immediately upon request, all rights and
-12-
13
obligations of the parties under this Agreement shall expire, and this Agreement
shall become null and void. If Buyer does not so terminate this Agreement, at
Seller's option, (i) the parties shall consummate this transaction, without any
reduction in the Purchase Price, and the Seller promptly shall repair or restore
the Property to substantially the same condition as existed before the casualty,
or to such other condition consistent with the provisions of Section 19(d) as
Buyer and Seller shall mutually agree, or (ii) the Purchase Price shall be
reduced by Seller's insurance deductible and upon consummation of this
transaction, Seller shall assign to Buyer all insurance proceeds paid or payable
thereafter by reason of such damage or destruction, and following consummation
of this transaction, Buyer shall construct the improvements upon the Property in
accordance with the provisions of Section 19(d).
(c) Should the cost of repair of the damage to the Property
not be more than fifty percent (50%) of the Purchase Price, Buyer shall not have
the right to terminate this Agreement, and the Purchase Price shall be reduced
by Seller's insurance deductible and Seller shall assign to Buyer all insurance
proceeds paid or payable thereafter by reason of such damage or destruction, and
the Buyer shall construct the improvements upon the Property in accordance with
the provisions of Section 19(d).
(d) The exterior of the Property shall be restored, and the
interior of the Property shall be rebuilt in a manner to provide Seller with
approximately 2,500 rentable square feet on the first floor thereof, with
comparable finishes as existed prior to such casualty, together with such space
on the second floor thereof necessary to provide Seller with men's and women's
restrooms, a break room, a conference room, and a storage area. The parties
shall negotiate in good faith the exact configuration and other construction
details of the rebuilt improvements, and shall cooperate in the preparation of
plans and specifications for same.
20. Condemnation. In the event of the taking of all or any part of the
Property by eminent domain proceedings, or the commencement of any such
proceedings, prior to Closing, Buyer shall have the right, at Buyer's option, to
terminate this Agreement by giving written notice thereof to Seller prior to
Closing, in which event the Xxxxxxx Money shall be refunded to Buyer,
immediately upon request, and all rights and obligations of the parties under
this Agreement shall expire, and this Agreement shall become null and void. If
Buyer does not so terminate this Agreement, the Purchase Price shall not be
reduced, but Seller shall assign to Buyer all rights of Seller in and to any
awards or other proceeds paid or payable thereafter by reason of any taking.
Seller shall notify Buyer of eminent domain proceedings within five (5) days
after Seller learns thereof.
21. Assignment. This Agreement may be assigned by Buyer, in whole or in
part, to any entity under the control of Buyer or its members, and such
assignment shall relieve Buyer of liability for the performance of Buyer's
duties and obligations under this Agreement. For purposes of this Agreement, the
term "Buyer" shall include any assignee of the interest of Buyer under this
Agreement. No other assignments by Buyer shall be
-13-
14
permitted except with the prior written consent of Seller, which consent shall
not be unreasonably withheld, delayed or conditioned.
22. Parties. This Agreement shall be binding upon and enforceable
against, and shall inure to the benefit of, Buyer and Seller and their
respective heirs, legal representatives, successors and permitted assigns.
23. Broker and Commission. None of the parties hereto have employed the
services of any other broker or sales agent, licensed or otherwise, in
connection with this purchase and sale of the Property. In the event of a claim
for any commission or fee by any other broker, agent, sales person or finder,
the party through whom such claim arose hereby agrees to indemnify and hold the
other parties hereto harmless from any and all such claims and any and all
demands, costs, expenses, and causes of action in connection therewith.
24. Further Assurances. At Closing, and from time to time thereafter,
Buyer and Seller shall do all such additional and further acts, and shall
execute and deliver all such additional and further deeds, affidavits,
instruments, certificates and documents, as Seller, Seller's counsel, Buyer,
Buyer's counsel or Buyer's title insurer may reasonably require fully to vest in
and assure to Buyer full right, title and interest in and to the Property to the
full extent contemplated by this Agreement and otherwise to effectuate the
purchase and sale of the Property as contemplated by and provided for in this
Agreement.
25. Survival. Each party's representations and warranties as set forth
in this Agreement, shall survive the consummation of the purchase and sale of
the Property on the Closing Date, the delivery of the deed and the payment of
the Purchase for a period of six (6) months, and shall not be deemed merged into
the deed of conveyance. Following such six (6) month period, each party's
representations and warranties shall be deemed merged into the deed of
conveyance.
26. Modification. This Agreement supersedes all prior discussions and
agreements between Seller and Buyer with respect to the purchase and sale of the
Property, including but not limited to that certain non-binding letter of intent
dated August 27, 1999, and other matters contained herein, and this Agreement
contains the sole and entire understanding between Seller and Buyer with respect
thereto. This Agreement shall not be modified or amended except by an instrument
in writing executed by or on behalf of Seller and Buyer.
27. Applicable Law. This Agreement shall be governed by, construed
under and interpreted and enforced in accordance with the laws of the State of
Georgia.
28. Time. Time is and shall be of the essence of this Agreement.
-14-
15
29. Captions. The captions and headings used in this Agreement are for
convenience only and do not in any way restrict, modify or amplify the terms of
this Agreement.
30. Exhibits. Each and every Exhibit referred to or otherwise mentioned
in this Agreement is attached to this Agreement and is and shall be construed to
be made a part of this Agreement by such reference or other mention occurs, in
the same manner and with the same effect as if each Exhibit were set forth in
full and at length every time it is referred to or otherwise mentioned.
31. Notices. All notices, requests, demands, tenders and other
communications under this Agreement shall be in writing. Any such notice,
request, demand, tender or other communication shall be deemed to have been duly
given if personally delivered or deposited in the United States Mail, Certified
Mail, Return Receipt Requested, with all postage prepaid, to the address for
each party as follows:
If to Buyer: Three Rivers Land Development, L.L.C.
Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Silfen, Segal, Fryer & Xxxxxxx, P.C.
0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Seller: The Summit National Bank
Attn: President
0000 Xxxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to Escrow Agent: Silfen, Segal, Fryer & Xxxxxxx, P.C.
Attn: Xxxxxxx X. Xxxxxxx, Esq.
0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
or at such address as may be furnished in writing from time to time by any party
hereto.
32. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
-15-
16
33. Mutual Representation as to Authority. Each individual whose
signature appears below warrants and represents to all parties hereto that such
individual has full right and authority to execute this Agreement in the
capacity designated, and further warrants and represents that all to the best of
such individual's knowledge, information and belief, that such signatures are
sufficient to bind the party on whose behalf this Agreement is being executed to
the terms and provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered under seal as of the date first above written.
BUYER: SELLER:
THREE RIVERS LAND
DEVELOPMENT L.L.C. THE SUMMIT NATIONAL BANK
By: /s/ Xxxx Xxxxxx (SEAL) By: /s/ Pin Pin Xxxx
-------------------- ---------------------
Xxxx Xxxxxx Pin Pin Xxxx
Member/Manger President
[CORPORATE SEAL]
ESCROW AGENT:
SILFEN, SEGAL, FRYER & XXXXXXX,
P.C.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx
Vice President
[CORPORATE SEAL]
-16-
17
EXHIBIT "A"
All that tract or parcel of land lying and being in Land Xxxx 000 &
000, 0xx Xxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx, containing 1,452 acres on
survey for Gwinnett County Bank, dated August 4, 1980, prepared by Xxxxxxx X.
Xxxxxxx, Registered Land Surveyor, recorded in Plat Book 13, Page 146A,
Gwinnett County Plat Records, which plat is by reference incorporated herein
and made a part hereof.
18
EXHIBIT "B"
LIST OF SERVICE AGREEMENTS
