EXHIBIT 10.1
AGREEMENT FOR THE SALE AND PURCHASE OF
REAL PROPERTY
THIS AGREEMENT FOR THE SALE AND PURCHASE OF REAL PROPERTY (the
"Agreement"), made as of this 30th day of May, 2001, by and between J. XXXXXXX
XXXXXX AND XXXXXX XXXXX, (hereinafter referred to as "Seller") and WEST METRO
FINANCIAL SERVICES, INC., (hereinafter referred to as "Purchaser").
WITNESSETH
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase from Seller, certain real property more particularly described upon the
terms and conditions hereinafter set forth.
NOW THEREFORE, for and in consideration of the premises and of the xxxxxxx
money herein below described and for other valuable consideration, in hand paid
by Purchaser to Seller, the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser hereby covenant and agree as follows:
1. Sale of Property. Seller agrees to sell to Purchase, and Purchaser
agrees to purchase from Seller, upon the terms and conditions hereinafter
provided, that certain 3.15 acres, more or less, tract of land (hereinafter
referred to as the "Property") lying and being in Land Xxxx 000, 000 & 000, 0xx
Xxxxxxxx, 0xx Section in Dallas, Paulding County, Georgia, and being more
particularly described in Exhibit "A" attached hereto and by reference made a
part hereof as "Tract A," together with all right, title, and interest of Seller
in and an unrestricted easement to all public rights of way and private drives
adjacent thereto (all of which property is hereinafter referred to as the
"Property").
2. Purchase Price and Time of Payment. The purchase price to be paid
by Purchaser to Seller for the Property (hereinafter referred to as the
"Purchase Price") shall be Five Hundred Fifty Thousand and 00/100 Dollars
($550,000.00), and shall be payable as described in paragraph 2.A. below. Upon
execution of this Agreement, Purchaser will deposit One Thousand and 00/100
Dollars ($1,000.00) of xxxxxxx money (the "Xxxxxxx Money"), to be deposited into
Seller's general operating account. Said Xxxxxxx Money and any additional
Xxxxxxx Money paid hereunder shall be refunded to Purchaser at Closing of the
transaction contemplated by this Agreement. Except as provided in paragraph 9
hereof, said Xxxxxxx Money shall be non-refundable.
2.A. The property is owned by J. Xxxxxxx Xxxxxx ("Xxxxxx") and Xxxxxx
Xxxxx ("Xxxxx") with each owning a one-half joint undivided interest. Purchaser
and Seller agree that the Purchase Price of the property is Five Hundred Fifty
Thousand and
no/100 dollars, ($550,000), with Xxxxxx and Aiken each equally dividing the
proceeds. It is agreed, however, that Aiken will exchange his one-half interest
in the property for no less than 10,000 shares of common stock in West Metro
Financial Services, Inc. pursuant to the terms of an offering memorandum to be
provided to Seller when that document is prepared and released for review by
prospective investors. The value of these shares is hereby accepted by the
parties to this agreement to be $10.00 per share. The balance of the amount due
to Aiken on the exchange will be paid in dollars. For example, if Aiken elects
to receive 10,000 shares, the balance will be $175,000. Xxxxxx will exchange his
one-half interest in the property for either dollars or shares at his election.
Both Purchaser and Seller intend that the exchange of stock for land will be
governed by the terms of Section 351 of the Internal Revenue Code whereby no
immediate taxable income will be generated by the exchange.
3. Survey. Purchaser may obtain, prior to Closing, and at Purchaser's
expense, a survey of the property certified to Purchaser by a Georgia Registered
Land Surveyor (hereinafter referred to as the "Survey"). The Survey shall (a)
show and locate all improvements (if any) upon the Property, (b) show and locate
all easements affecting the Property, (c) show and locate any portions of the
Property lying and being in the Flood Plain per FIA Official Flood Hazard Maps,
and (d) indicate to the nearest one-ten-thousandth (1/10,000th) of an acre the
number of acres comprising the Property, exclusive of any presently existing
publicly dedicated road rights-of-way (hereinafter referred to as the "Total
Acreage").
4. Test, Borings and Examinations. Seller will permit representatives
of Purchaser to enter upon the property for the purposes of conducting soil
tests, environmental tests, borings, perculation tests, and any other tests,
inspections, or examinations that Purchaser desires in regard to the engineering
and planning for development of the Property, including (but not by way of
limitation) such other test, inspections, or examinations as Purchaser may
request to determine subsurface or topographic conditions of the Property.
Purchaser shall hold Seller harmless for any damages resulting from the failure
by Purchaser or the representatives of the Purchaser to exercise reasonable care
in the conduct of such tests, inspections, or examinations; and further agrees
to pay Seller for any loss or damage to the Property or its timber as a result
of such tests. In the event the transaction contemplated by this Agreement fails
to close for any reason whatsoever, Purchaser agrees to turn over all tests
performed pursuant to this paragraph to Seller. The Purchaser shall bear the
costs of any and all testing performed and will indemnify and hold Seller
harmless from any and all liens arising from said testing.
5. Examination of Title and Defects in Title. The Purchaser shall have
until August 30, 2001, in which to examine the title and in which to furnish to
the Seller a written statement of objections affecting the insurability of said
title. The Seller shall have until September 30, 2001, to satisfy same. If the
Seller fails to remedy the objections affecting the insurability of title, the
Purchaser may, at its election, declare this contract null and void.
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6. Closing. Closing will be held on or before December 31, 2001, in
the offices of Vinson, Talley, Xxxxxxxxxx and Cable. At the Closing, the parties
will execute and deliver all deeds and other documents necessary to consummate
the sale and purchase of the Property pursuant to the terms of this Agreement.
Seller, at the Closing, will pay all amounts required for transfer taxes arising
from the conveyance of the Property and all amounts required for the execution,
delivery, or recording of the instruments of conveyance for the Property.
Purchaser will pay all other closing costs.
7. Conveyance of Property. At the Closing, Seller will execute and
deliver to Purchaser a general warranty deed with full warranties of title
against claims of all persons whomsoever, conveying marketable fee simple title
to the Property. The Seller agrees to provide Purchaser with marketable title in
fee simple, being title which in insurable by Lawyer's Title Insurance Company
or other reputable title insurance company at its standard rates on ALTA form
then in use in Paulding County, Georgia, with permitted exceptions and standard
printed exceptions only appearing therein. The legal description contained in
the general warranty deed shall be based upon the Survey.
8. Warranties of Seller. Seller warrants to Purchaser as follows (but
Purchaser shall have the right, at is sole election and in its sole discretion,
to waive Seller's failure to warranty any of the following):
a. Seller will deliver good and marketable fee simple title to the
Property;
b. The Property will be in substantially the same condition at time
of Closing as on the date hereof;
c. No party is in possession of the Property or any portion thereof,
whether as a lessee or tenant at sufferance, other than Seller or
an entity owned or controlled by Seller;
d. To the best knowledge of Seller, no part of the Property has been
used for as a landfill or toxic waste site or has any hazardous
material situated thereon;
e. To the best knowledge of Seller, there are no assessment,
condemnation or eminent domain actions or proceedings pending or
threatened against the Property or any portion thereof;
f. There is no option to purchase, right of first refusal to
purchase or agreement for the sale and purchase of the Property
or any portion thereof to any person or entity, except for this
Agreement; and
g. No consent or approval of any other person or entity is required
in order for this Agreement to be legal, valid and binding upon
Seller;
h. Water and sewer utilities services are contiguous to the
Property.
9. Termination/Extension. In addition to all other rights of Purchaser
under this Agreement and as provided by law (and not in lieu of any such
rights), Purchaser, at Purchaser's sole election and in Purchaser's sole
discretion, may cancel and terminate this
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Agreement by Written notice to Seller, in which event all Xxxxxxx Money paid by
Purchaser as of the date of termination with all interest accruing thereon is to
be returned to the Purchaser if any one or more of the following conditions or
states of fact shall exist at the time of Closing (but in the alternative,
Purchaser may, in Purchaser's sole election and in Purchaser's sole discretion,
decline to cancel and terminate this Agreement by reason of any such condition
or state of fact, and proceed to consummate the transaction contemplated
hereby):
A. Any notice shall be given of proceedings filed or commenced
by any governmental authority or other agency having powers of condemnation
concerning the Property or any portion thereof.
B. The Property or any substantial portion thereof shall be
substantially damaged by earthquake, erosion, flooding, or by force of nature or
act of God after the date first above written.
C. Seller's warranties set forth in paragraph 8 hereinabove shall
fail to be true and correct on the date of Closing in the same manner and with
the same effect as if then made, Seller hereby expressly agreeing that Seller
will not cause or permit any action to be taken or omitted between the date
first above written and the date of Closing which would cause any of such
representation to be untrue on the date of Closing.
D. Seller shall fail to deliver to Purchaser at Closing the
general warranty deed described in Paragraph 7 hereinabove, which general
warranty deed would convey to Purchaser title to the Property as provided in
paragraph 8 hereinabove.
E. Seller shall fail to deliver to Purchaser at closing an
affidavit of Seller stating that there are not outstanding indebtedness,
security agreement, financing statements, or title retention contracts
concerning any improvements, equipment, appliances, or other fixtures attached
to the Property; that there are no unpaid or unsatisfied mortgages, security
deeds, liens or other encumbrances which could constitute a lien against the
Property, except those matters set forth in paragraph 8; that there are no
disputes concerning the location of the lines and comers of the Property; that
there are no pending suits, proceedings, judgments, bankruptcies, liens, or
execution against or affecting Seller in either the county in which the Property
is located or any other county in the state of Georgia which would affect title
to the Property; that there are no outstanding bills incurred for labor and
materials used in making improvements or repairs on the Property or for services
of architects, surveyors, or engineers incurred in connection therewith which
have not been paid or otherwise provided for in a manner satisfactory to
Purchaser.
F. Purchaser shall determine prior to Closing that the Property
is zoned for intended use.
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10. Possession of Property. Seller shall deliver possession of the
Property to Purchaser on the date of Closing.
11. Broker's Conunission. The Purchaser and Seller mutually covenant
to the other that no real estate agent or broker is a party to this agreement.
Both mutually warrant and hold the other harmless from any claims from any real
estate agent or broker.
12. Prorations. At the Closing, all state, county and municipal ad
valorem taxes, if any, and all rents will be prorated as of the date of Closing.
If the amount of such taxes is not known at the time of Closing, proration of
such taxes will be made upon the basis of the most recent billing.
13. Liquidated Damages to Seller; Remedies of Purchaser. In the event
that Purchaser refuses to accept title of the Property as required by this
Contract, or otherwise defaults in Purchaser's obligations hereunder, through no
fault of the Seller, the Xxxxxxx Money shall be retained by Seller as fixed and
full liquidated damages, and in such event neither Purchaser nor Seller shall
have any further rights or obligations hereunder or any remedies provided by law
or equity. In the event that Seller refuses to convey title to the Property when
required by this Contract to do so, or otherwise defaults in Seller's
obligations hereunder, Purchaser shall be entitled to exercise all rights and
remedies available at law or inequity, including specific performance.
14. Prior Discussions and Amendments. This Agreement supersedes all
prior discussions and agreements between Seller and Purchaser with respect to
the conveyance of the Property and all other matters contained herein and
constitutes the sole and entire agreement between Seller and Purchaser with
respect thereto. This Agreement may not be modified or amended unless such
amendment is set forth in writing and signed by both Seller and Purchaser.
15. Survival of Provisions. All covenants, warranties,
representations, and agreements set forth in this Agreement will survive the
Closing of the purchase and sale of the Property, and will survive the execution
of all deeds and other documents at any time executed and delivered under,
pursuant to, or by reason of this Agreement.
16. Successors and Assigns. This Agreement shall apply to, insure to
the benefit of, and be binding upon and enforceable against Seller and Purchaser
and their respective successors and assigns to the same extent as if specified
at length throughout this Agreement. Purchaser shall have the right to assign
its interest in this Agreement, or any portion thereof, provided, however, that
no such assignment shall be effective as to Seller until an executed counterpart
of the instrument of assignment has been delivered to Seller. Purchaser will
assign this contract or transfer this property to First National Bank of West
Metro, its subsidiary, pursuant to that bank receiving its banking charter and
receiving approval from regulators.
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17. 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.
18. Time of the Essence. Time of the essence of this Agreement.
19. Governing Law. This Agreement shall be governed by and construed
according to the Laws of the State of Georgia.
20. Notices. All notices required or permitted by the terms hereof
shall be given by hand delivery or by U.S. Mail, Certified Return-Receipt
Requested, at the following addresses or at such other address as either party
hereto shall in writing advise the other:
A. To Seller:
J. Xxxxxxx Xxxxxx and Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
B. To Purchaser:
First National Bank of West Metro (in organization)
X/X X. Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
All notice shall be deemed given as of the time of hand delivery or the
time such are deposited with the U.S. Mail for transmittal as aforesaid;
provided, however, that the time in which a response or action in response to
any notice must be given or taken shall run from the time of actual receipt of
such notice.
21. Construction. No provision of this Agreement shall be construed by
any Court or other judicial authority against any party hereto by reason of such
part's being deemed to have drafted or structured such provision.
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IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
affixed their seals as of the day and year first above written.
SELLER:
/s/ J. Xxxxxxx Xxxxxx
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J. Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
PURCHASER:
/s/ Xxxxxxx X. Xxxxxxx
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West Metro Financial Services,Inc.
Xxxxxxx X. Xxxxxxx, Vice Chairman of
the Boad of Directors
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