EXHIBIT 10.10
STATE OF SOUTH CAROLINA )
) CONTRACT OF SALE AND PURCHASE
COUNTY OF GREENVILLE )
THIS CONTRACT OF SALE AND PURCHASE (hereinafter referred to as the
"Agreement") is made and entered into as of the date this Agreement is executed
by both the hereinbelow defined Seller and Purchaser and an executed original
thereof is delivered to Purchaser (the "Effective Date") by and among Church at
Hampton, LLC c/o Xxxxxxx X. Xxxxx, (hereinafter referred to as "Seller") and
First South Bank and/or assigns (hereinafter referred to as "Purchaser").
WITNESSETH:
In consideration of the mutual covenants and agreements set forth below
to be kept and performed, the hereinbelow defined Xxxxxxx Money, and other good
and valuable consideration passing between the parties, the receipt and
sufficiency of which is hereby acknowledged, the parties covenant and agree that
Seller shall sell to Purchaser, and Purchaser shall purchase from Seller, the
Property described below for the price and upon the terms and conditions
specified herein:
1. THE PROPERTY. Seller agrees to grant, sell, convey, assign, transfer and
deliver to Purchaser and Purchaser agrees to purchase, acquire and take from
Seller:
(a) The property containing approximately 0.907 acres commonly known as
tax map # 0188010901201 located at 0000 Xxxxx Xxxxxx Xxxxxx in
Greenville, South Carolina, being more particularly described on
EXHIBIT A attached hereto and incorporated herein by reference (the
"Land"); and
(b) All improvements situated upon and to the Land including, but not
limited to, a two story brick building containing 7650 square feet to
be determined by final as-built drawings completed and delivered to
the purchaser within ten (10) business days from the execution of this
agreement (the "Building") located on the above described land; and
(c) All personal property (the "Personal Property") situated upon the land
(including, without limitation, fixtures to the Building; and
(d) Together with all easements and rights-of-way (including, without
limitation, for parking, ingress, egress and access), hereditaments
and appurtenances thereunto belonging or in any way appertaining to
the Land.
All of the property and rights described in (a), (b), (c) and (d) above
are hereinafter collectively referred to as the "Property".
2. XXXXXXX MONEY. Within Five (5) business day after Purchaser's receipt of a
fully executed original of the Agreement from Seller, Purchaser shall deliver to
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NAI Xxxxx Xxxxxx, LLC, as escrow agent hereunder (hereinafter referred to as
"Escrow Agent"), an xxxxxxx money deposit (hereinafter referred to as the
"Xxxxxxx Money") in the amount of Ten Thousand and No/100 Dollars ($10,000.00),
payable to the order of Escrow Agent.
Escrow Agent agrees to hold and disburse the Xxxxxxx Money in a trust
account in accordance with the terms of this Agreement. All Xxxxxxx Money shall
be applied toward the Purchase Price at Closing (as each capitalized term is
hereinafter defined).
3. ESCROW AGENT. The Xxxxxxx Money shall be held by the Escrow Agent until
the Closing Date or sooner termination of this Agreement and Escrow Agent shall
pay over the interest or income earned thereon, if any, to the party entitled to
the Xxxxxxx Money and the party receiving such interest or income shall pay any
income taxes due thereon. In the event the Closing shall occur in accordance
with the provisions of this Agreement, then, Escrow Agent shall deliver the
Xxxxxxx Money to the settlement agent disbursing funds at Closing. If, for any
reason, the Closing does not occur pursuant to the provisions of this Agreement
and either party makes a written demand upon Escrow Agent, by registered or
certified mail (return receipt optional), Federal Express or other reputable
national overnight delivery service, for the payment of the Xxxxxxx Money, then
Escrow Agent shall give written notice in accordance with the provisions hereof
to the other party of the receipt of such demand. If Escrow Agent does not
receive a written objection from the other party to the proposed payment of the
Xxxxxxx Money pursuant to the demand within ten (10) days after the delivery of
such notice by Escrow Agent, Escrow Agent is hereby authorized to make such
payment in accordance with the aforesaid demand. If Escrow Agent receives
written abjection from the other party to the proposed payment of the Xxxxxxx
Money pursuant to the aforesaid demand within such ten (10) day period or if,
for any other reason, Escrow Agent in good faith shall elect not to make such
payment, Escrow Agent shall continue to hold the Xxxxxxx Money until otherwise
directed by written instructions from Seller and Purchaser or a final judgment
of a court of competent jurisdiction. Escrow Agent, however, shall have the
right at any time to deposit the Xxxxxxx Money with the clerk of any court of
competent jurisdiction in the state where the Property is located, and Escrow
Agent shall give written notice of such deposit to the Seller and the Purchaser,
and upon such deposit being made, Escrow Agent shall be discharged from all
obligations and responsibilities hereunder. The parties acknowledge that Escrow
Agent is acting solely as a stakeholder at their request and for their
convenience, that Escrow Agent may act upon any writing believed by it in good
faith to be genuine and to be signed and presented by the proper person, and
that Escrow Agent shall not be liable to either of the parties for any act or
omission on its part unless taken or suffered in bad faith, in willful disregard
of this Agreement or involving gross negligence. Escrow Agent shall have no
duties or responsibilities relating to escrow except as set forth in this
paragraph. Escrow Agent shall not be bound by any modification of the Agreement
unless the same is in writing and signed by the Purchaser and Seller and if
Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have
given prior written consent thereto. The Seller and Purchaser hereby jointly and
severally indemnify and hold the Escrow Agent harmless from and against all
costs, claims and expenses (including reasonable attorney's fees) incurred in
connection with the performance by the Escrow Agent of its duties in accordance
with the provisions of this Section of this Agreement.
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4. PURCHASE PRICE. The total purchase price (hereinafter referred to as the
"Purchase Price") for the Property shall be One Million One Hundred Thousand and
No/100 Dollars ($1,100,000.00), which shall be paid by the purchaser by cash,
wire transfer or certified check at Closing.
5. DOCUMENTS. Within ten (10) days after the Effective Date hereof, Seller
shall provide Purchaser with copies of the following documents reasonably
available to Seller:
(a) Any boundary, topographic or other surveys or plats of the Property
and all environmental studies, engineering studies or reports, soil
tests or similar reports on the Property, if any;
(b) Any title insurance policy or policies on the Property;
(c) A true and complete copy of all Service Agreements (hereafter defined)
(including, but not limited to any landscaping contract, dumpster
contract and/or janitorial contract) for the Property including all
amendment thereto;
(d) Copies of all as-built construction, architectural and engineering
drawings of the Property or any portion thereof;
(e) Copies of any documents relating to any obligations which have been
incurred directly or indirectly by the Property's owner for which a
new owner would be responsible or must comply with, including, but not
limited to any commissions payable after Closing, any real estate
management or leasing contracts, including but not limited to, the
Personal Property, etc.;
(f) Tax bills for the Property including, but not limited to, the Personal
Property, for year 2006;
(g) A detailed written description of any current problems with the
Property which are known to Seller, such as, building and roof leaks,
utility systems and equipment, structural or foundation problems.
Additionally, Seller shall provide Purchaser with a written
description of any maintenance (excluding routine grounds
maintenance), repair, or replacement work, the cost of which was
greater than $1,000.00;
(h) Copies of any and all documentation, if any, relating to any
government or municipal codes, regulations or ordinances violation of
the Property or its operation, of which Seller has received notice;
(i) Copies of all documents relating to any notice which Seller has
received from government or municipal agency, any utility provider or
adjoining land owner, which may have any future impact on the access
to the Property or any future impact on utility services for the
Property; and
(j) A list/inventory of all of the Seller's Personal Property associated
with the operation of the Property as of the Effective Date, if any.
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(k) Current Common Area Maintenance charge list (if any).
(l) Copies of all environmental reports, studies and assessments performed
or rendered with respect to or in connection with the Property or any
part thereof (including, without limitation any part of the Building).
(m) Copies of all insurance policies insuring against hazard or casualty
loss currently held by Seller, as insured, with respect to the
Property (including, without limitation, with respect to the
Building).
6. INSPECTION PERIOD. Purchaser shall have thirty (30) days after the
Effective Date of this Agreement (hereinafter referred to as the "Inspection
Period") to make all inspections Purchaser may deem necessary and to determine
if the Property is satisfactory for its needs including, but not limited to, all
aspects of the operation of the Property and all documents and records relating
to the operation of the Property in the Seller's possession or reasonably
obtainable by Seller. In the event Purchaser determines within said thirty (30)
day Inspection Period that the Property does not meet its needs, or Purchaser is
not satisfied in its sole discretion with any of the inspection results, then
Purchaser shall so notify Seller in writing prior to the expiration of the
Inspection Period and this Agreement may be canceled by Purchaser and, if so
canceled, shall be deemed null and void and Purchaser's Xxxxxxx Money shall be
immediately refunded to Purchaser.
During the Inspection Period and thereafter if Purchaser does not
terminate this Agreement pursuant to the foregoing paragraph, Purchaser and/or
Purchaser's agents, employees and/or contractors shall have the right to enter
upon the Property during normal business hours with 24~hour prior notice to
conduct such inspections, tests and studies as Purchaser may deem necessary,
provided:
(a) Such inspections, tests and studies shall not damage the Property; and
(b) Purchaser shall leave the Property in not materially worse condition
as it was prior to the entry onto the Property by Purchaser or its
agents, employees or contractors or, in the event of any damage to the
Property (other than ordinary wear and tear), Purchaser shall
immediately repair and restore the Property to its prior condition.
Purchaser agrees to indemnify and hold harmless Seller from any loss
or damage, including reasonable attorneys' fees, arising out of the
inspections, tests or studies that Purchaser, its agents or employees,
may conduct pursuant to this Section 6 other than any liability
arising out of the discovery by Purchaser and/or its agent or
contractor of a latent construction defect or an environmental problem
or condition, or the obligation of Purchaser and/or its contractor to
warn of or report any latent structural defect or environmental
condition to a governmental authority. This indemnity shall survive
any early termination of this Agreement and the Closing of the
transaction contemplated hereunder.
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7. TITLE.
(a) Seller warrants that it has good marketable record fee simple title to
the Property subject only to applicable zoning ordinances and
regulations, taxes for the current year not yet due and payable, and
utility and drainage easements; provided, however, Purchaser shall
accept title to the Property subject only to such easements as
Purchaser shall reasonably determine will not interfere with the
development and operation of the Property as a commercial development.
Seller shall, at the closing, convey the Property to Purchaser by
general warranty deed, with good and marketable title in fee simple,
free and clear of all liens or encumbrances except as set forth above.
"Good and marketable title", as used herein, shall mean title which is
insurable by a reputable national title insurance company (the "Title
Company") at standard rates on the AL T A form then in use in the
county where the land lies and with only the exceptions set forth
above or which are otherwise acceptable to Purchaser (the "Permitted
Exceptions"). The availability of such title insurance shall be
conclusive evidence of the marketability of title to the Property,
and, conversely, the inability of Purchaser to obtain such policy
shall be conclusive evidence that title to the Property is not
marketable as required herein.
(b) Within twenty five (25) days after this Agreement is executed by the
parties, Purchaser shall obtain, if available based upon the status of
Seller's title, a title insurance commitment (the "Commitment") issued
by the Title Company to provide a standard AL TA owner's title
insurance policy (the "Title Policy") to Purchaser and shall forward a
copy of the Commitment to Seller upon receipt from the Title Company.
Approval as to all easements and exceptions which show on the
Commitment shall be deemed given five (5) days after Purchaser's
receipt of the Commitment unless on or before the 5th day of said
period, Purchaser shall give notice to Seller that it disapproves an
item or items. In such case, the removal of each item so disapproved
shall be a condition to Purchaser's obligation to close. Seller will
have ten (10) days from the receipt of such notice within which to
take steps to cure such defects. If Seller is unable to cure such
defects within said ten-day period, Purchaser shall have the right to
terminate this Agreement and receive a prompt refund of Purchaser's
Xxxxxxx Money and this Agreement shall be void and without further
recourse to the parties. In the alternative, Purchaser may elect to
accept such title as Seller can deliver to the Property in its then
condition and pay the Purchase Price without deduction. At closing,
Seller will execute and deliver an affidavit to the effect that to the
best of Seller's knowledge, there are no judgments, bankruptcies,
liens, leases or other claims of any nature whatsoever against or with
respect to the Property or against Seller which would in any way
create an encumbrance upon the Property (except for the Permitted
Exceptions).
8. SELLER'S REPRESENTATIONS AND WARRANTIES. To induce Purchaser to enter
into this Agreement and to purchase the Property being conveyed hereunder,
Seller makes the following representations and warranties, each of which is
material and is being relied upon by the Purchaser and all of which Seller
represents and warrants are true as of the Effective Date hereof and shall be
true as of the Closing Date:
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(a) Good and Marketable Title to Property. Seller now has and will have at
Closing good and indefeasible title in fee simple to the Property and
no party, except as herein set forth, has or shall have any right in,
or to acquire, the Property;
(b) Free of Encumbrances. At the Closing, the Property shall be free and
clear of all encumbrances except Permitted Encumbrances;
(c) No Actions or Suits. There are no actions, suits, claims, assessments,
or proceedings pending or, to the knowledge of Seller, threatened,
that could materially adversely affect the ownership, operation, or
maintenance of the Property or Seller's ability to perform hereunder;
(d) Authority of Seller. Seller has full right, power, and authority to
execute, deliver, and perform this Agreement without obtaining any
further consents or approvals from, or the taking of any other actions
with respect to, any third parties and this Agreement, when executed
and delivered by Seller and Purchaser, will constitute the valid and
binding agreement of Seller, enforceable against Seller in accordance
with its terms;
(e) Existence of Security Interest. No uncured breach or default, whether
declared or not, including, without limitation, nonpayment of any sum
or nonperformance of any obligation, exists under, or with regard to,
any obligation of Seller that is secured by a lien on the Property;
(f) No Violation of Applicable Law. The location, construction, occupancy,
operation, and use of the Property does not violate any applicable
law, statute, ordinance, rule, regulation, order, or determination of
any governmental authority or any board of fire underwriters (or other
body exercising similar functions), or any restrictive covenant or
deed restriction (recorded or otherwise) affecting the Property,
including, without limitation, all applicable zoning ordinances and
building codes, flood disaster laws, and health and environmental laws
and regulations (hereinafter sometimes collectively called "Applicable
Laws");
(g) Compliance With Environmental Laws.
(1) Without limiting Section 6.6 above, Seller further represents
that (i) none of the Property has ever been used by Seller or, to
the best of Seller's knowledge (after due inquiry), by any
previous owners, occupants or the current lessees, if any, to
generate, manufacture, refine, transport, treat, store, handle or
dispose of any Hazardous Substances (as hereinafter defined), and
no such Hazardous Substances exist on the Property or any part
thereof (including, without limitation, the Building), or in its
soil or groundwater; (ii) to the best of Seller's knowledge
(after due inquiry), no portion of the Improvements has been
constructed with asbestos, asbestos containing materials, urea
formaldehyde insulation or any other chemical or substance which
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has been determined to be a hazard to health and/or the
environment; (iii) to the best of Seller's knowledge, there are
no, nor have there been, electrical transformers or other
equipment which have di-electric fluid-containing polychlorinated
biphenyls (PCBs) located in, on or under the Property; (iv) to
the best of Seller's knowledge, the Property has never contained
any underground storage tanks; and (v} Seller has not received
nor does it have any knowledge of any summons, citation,
directive, letter or other communication, oral or written, from
any local, state, or federal government agency concerning (a) the
existence of Hazardous Substances on the Property or in the
immediate vicinity, (b) the releasing, spilling, leaking,
pumping, pouring emitting, emptying, or dumping of Hazardous
Substances into the Property or into waters or other lands.
(2) The term "Hazardous Substances" as used in this Agreement shall
mean any hazardous or toxic material, substance, or waste,
pollutant or contaminant which is regulated under any statute,
law, regulation, rule or ordinance of any local, state, regional,
or federal authority having jurisdiction over the Property, or
its use, including, but not limited to, any material, substance
or waste which is (i) defined as a hazardous substance under any
Environmental Laws; (ii) a petroleum hydrocarbon, including crude
oil or any fraction thereof and all petroleum products; (iii)
polychlorinated biphenyls; (iv) lead; (v) urea formaldehyde; (vi)
asbestos; (vii) flammable explosives; (viii) infectious
materials; (ix) radioactive materials; or (x) defined or
regulated as a hazardous substance under rules or regulations
promulgated under any of the foregoing Environmental Laws.
(3) The term "Environmental Laws" as used in this Agreement shall
mean any international, federal, state, or local statute, law,
regulation, order, consent, decree, judgment, permit, license,
code, covenant, deed restriction, common law, treaty, convention,
ordinance, or other requirement relating to public health, safety
or the environment, including, without limitation, those relating
to releases, discharges or emissions to air, water, land or
groundwater, to the withdrawal or use of groundwater, to the use
and handling of polychlorinated biphenyls or asbestos, to the
disposal, treatment, storage or management of hazardous or solid
waste, or Hazardous Substances or crude oil, or any fraction
thereof, or to exposure to toxic or hazardous materials, to the
handling, transportation, discharge or release of gaseous or
liquid Hazardous Substances and any regulation, order, notice or
demand issued pursuant to such law, statute or ordinance, in each
case applicable to the Property, including, without limitation,
the following: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Re-Authorization Act of 1986; the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and the Hazardous and Solid Waste Amendments
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of 1984; the Hazardous Materials Transportation Act, as amended;
the Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1976; the Safe Drinking Water Act; the Clean Air
Act, as amended; the Toxic Substances Control Act of 1976; the
Occupational Safety and Health Act of 1977, as amended; the
Emergency Planning and Community Right-to-Know Act of 1986; the
National Environmental Policy Act of 1975; the Oil Pollution Act
of 1990, and any similar or implementing state law, and any state
statute and any further amendments to these laws providing for
financial responsibility for clean-up or other actions with
respect to the release or threatened release of Hazardous
Substances or crude oil, or any fraction thereof and all rules
and regulations promulgated thereunder.
(h) No Environmental Permits Required. Seller has not obtained, and is not
required to obtain or maintain, and Seller has no knowledge of any
reason Purchaser or Seller will be required to obtain or maintain, any
permits, licenses, or similar authorizations to construct, occupy,
operate, or use the Building, or any improvements, fixtures, and
equipment forming a part of the Property by reason of any
Environmental Laws;
(i) No Special Assessments or Other Taxes. There are, and will be, no
special taxes or assessments for any improvements, made or installed
on the Property prior to the Closing; to the best of Seller's
knowledge, all storm and sanitary sewers; the paving of roads and
streets; all curbs and gutters; all curb-cuts, all traffic signals;
the widening of all roads and streets; and the installation of
acceleration, deceleration, and stacking lanes, required by law or the
Leases at the time of the Closing have been installed and paid for; in
the event that any such item has not been paid for or in the event
that any special assessments are now or hereafter imposed, levied, or
fixed by reason of the installation of the foregoing, same will be
paid by Seller whether or not the same are a lien at the time of
closing;
(j) No Third-Party Contracts. There will be no contracts for services or
supplies on account of maintenance or repairs which expressly or
impliedly will be binding upon the Purchaser or upon the Property,
unless expressly agreed to in writing by Purchaser prior to Closing;
(k) Sewage Connections. The Property is serviced by the municipal water
and the municipal sewer system (including, without limitation,
sanitary and stormwater sewer); there are no cesspools or leaching
fields contained within or draining or leaching upon or into the
Property;
(l) Utility Connections. All utility lines (including sanitary and storm
sewers) enter the Property through public streets or through dedicated
rights of way or equivalent servitudes;
(m) No Zoning Violations. After due inquiry Seller has no knowledge of any
zoning, subdivision or building violations or of any action, suit, or
proceeding pending or threatened against or affecting the Property or
any portion thereof in any court or before or by any federal, state,
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county, or municipal department, commission board, bureau, or agency
or other governmental instrumentality;
(n) No Liens. Seller has and will pay for all labor performed and
materials provided or supplied with respect to the Property
(including, without limitation, the Building) prior to Closing. In
connection therewith Seller agrees to execute such affidavi1s and
other evidences as may be required by the Title Company to remove
exceptions for mechanic's and materialman's liens from the Commitment
and the Title Policy. Further, Seller agrees to indemnify and hold
Purchaser harmless in respect to any mechanic's and materialmen's
liens against the Property arising out of any work performed or
materials furnished by or on Seller's behalf or request on or with
respect to the Property;
(o) Highways and Roads. The roads bounding the Property are public
highways under the jurisdiction of the appropriate political
subdivision;
(p) No Organized Labor Force. At the time of the Closing, there will be no
collective bargaining or union contracts affecting the Property for
which Seller is obligated, and there will be no employees of Seller at
the Property;
(q) No Condemnation. To the best of Seller's knowledge, there is no
condemnation threatened or pending against the Property, or any part
thereof;
(r) No Structural Deficiencies. To the best of Seller's knowledge at the
time of the Closing, there will be no material defects with regard to
any of the structural components of the buildings on the Property, the
roof and exterior walls are free of leaks, and the electrical,
mechanical, plumbing, and HVAC systems are in good working order;
(s) Viability of Insurance Coverage. Seller has not received any notices
from any insurance company of any defects or inadequacies in the
Property or any part thereof which would materially and adversely
affect the insurability of the Property or the premiums for the
insurance thereof, and no notice has been given by any insurance
company which has issued a policy with respect to any portion of the
Premises or by any board of fire underwriters (or other body
exercising similar functions) requesting the performance of any
repairs, alterations, or other work which has not been complied with;
(t) No Parties in Possession. There are no parties in possession of any
portion of the Property, whether as lessees, lessees at sufferance,
trespassers, or otherwise, except for Lessees and sub-lessees of
Lessees, all of whom and which shall have vacated the Property not
less than fifteen (15) days prior to Closing;
(u) Property Not Flood-Prone. The Improvements on the Property are not
within any area determined to be flood-prone under the Federal Flood
Protection Act of 1973;
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(v) Compliance With Americans With Disabilities Act. The Property
(including, without limitation, the Building) is in compliance with,
and Seller is not in violation of or subject to, (i) any existing,
pending, or threatened investigation or inquiry by any governmental
authority arising from, related to, or in connection with one or more
actual or alleged violation(s) of the Americans with Disabilities Act
(the "ADA"); or (ii) any remedial obligations under or imposed by the
ADA, and these representations and warranties would continue to be
true and correct following disclosure to the applicable governmental
authorities of all relevant facts, conditions, and circumstances, if
any, pertaining to the Property;
(w) No Material Change in Property. Seller shall immediately notify
Purchaser of any material change in respect to the Property
(including, without limitation, the Building) or any information
heretofore or hereafter furnished to Purchaser with respect to the
Property (including, without limitation, the Building).
None of the representations or warranties of Seller contained in this
Agreement and no documents furnished to Purchaser in connection with this
Agreement or in connection with the transactions contemplated hereby, contain,
or at the Closing will contain, any untrue statement of a material fact
necessary to make the statements of fact herein and therein not misleading.
9. CLOSING AND DELIVERY OF POSSESSION. The closing of the sale and purchase
contemplated by this Agreement (hereinafter referred to as the "Closing") shall,
subject to the other provisions contained in this Agreement, take place at a
time and place selected by Purchaser and on a date selected by Purchaser on or
before ninety (90) days following the end of the Inspection Period (hereinafter
referred to as the "Closing Date"). Purchaser shall provide the Seller with no
les5 than five (5) days prior written notice of the proposed location, date and
time of Closing.
Upon execution and delivery of all of the closing documents including,
but not limited to, the original executed deed in recordable form subject only
to the Permitted Exceptions, Purchaser shall pay to Seller the balance of the
Purchase Price as set forth in this Agreement (subject, however, to the Title
Insurer updating title to the Property to confirm the same as subject only to
the Permitted Exceptions and recording the Deed within one (1) business day
following Closing).
10. CLOSING DOCUMENTS. At Closing, Seller shall cause to be conveyed to
Purchaser, by a general warranty deed, good and marketable, insurable fee simple
title to the Property, free and clear of all defects, claims, liens and
encumbrances except the Permitted Exceptions. For purposes hereof, "Permitted
Exceptions" shall include (i) current city, county and state ad valorem taxes
not yet due and payable (which shall be prorated to Closing Date); (ii) any
easements, covenants or restrictions of record which apply to the Property as of
the Effective Date hereof and have been approved by Purchaser as aforesaid. At
Closing, Seller shall also execute and deliver to Purchaser the following:
(a) An affidavit reasonably satisfactory to the Title Company issuing the
Title Policy, in order to delete from the Title Policy to be issued
the standard printed exceptions relating to mechanics' liens and
parties in possession;
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(b) An affidavit reflecting whether Seller is a foreign or non-foreign
person in accordance with the provisions of the Internal Revenue Code
and Internal Revenue Service Regulations;
(c) Proof of cancellation of all agreements affecting the Property which
would extend beyond the Closing Date which are not expressly assumed
by the Purchaser;
(d) An affidavit reflecting whether Seller is a resident of South Carolina
for purposes of the South Carolina real estate sales withholding laws;
(e) Such documents of Seller which authorize the sale of the Property to
Purchaser and the execution of all closing documents by Seller as are
reasonably required by the title insurance company issuing the title
insurance policy on the Property to Purchase.
(f) The original Service Agreements approved and assumed by Purchaser. or
if an original is lost or stolen, a certified true copy thereof;
(g) An Assignment of the existing permits, approvals, licenses, etc. for
the Property;
(h) A Certificate from the Seller certifying that the Seller's
representations and warranties set forth in Section 8 herein are true
and correct as of Closing;
(i) A Proration Agreement as described in Paragraph 14 herein;
(j) Closing Statement; and
(k) Such other instruments as are necessary or reasonable to consummate
the transactions contemplated by this Agreement, including such
documents as are necessary to cause the Title Company to issue the
Title Policy on the Property to the Purchaser for no less than the
Purchase Price.
11. EXPENSES. In addition to other provisions for the payment of the
expenses contained in this Agreement, Seller shall pay for the deed preparation
and deed stamps on the general warranty deed, Seller's attorney's fees and the
cost of delivering good and marketable insurable fee simple title to the
Property to the Purchaser in accordance with the terms of this Agreement.
Purchaser shall pay for the cost of the title examination, the Commitment and
Title Insurance, the cost for its boundary surveyor plat, the cost of
recordation of the general warranty deed, Purchaser's attorney's fees, loan fees
and other fees and expenses incurred by Purchaser in connection with acquiring
the Property.
12. PRORATIONS. Ad valorem taxes and all others items of income and expense
in connection with the operation of the Property shall be prorated between
Seller and Purchaser as of the Closing Date based upon the best information
available. Any expense proration based upon any estimate shall be subsequently
readjusted (within thirty (30) days of written demand of either party) upon
receipt of the actual xxxx, pursuant to a proration agreement (the "Proration
Agreement") to be executed by the Seller and Purchaser at Closing. Any special
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assessments or improvement liens which have been certified or which constitute a
lien against the Property as of the Closing Date shall be paid by Seller.
Seller hereby warrants and represents to Purchaser that the Property
has not heretofore been designated and assessed for a special use for ad valorem
tax purposes, or for roll-back taxes, so that a change in the use of the land by
Purchaser would cause the Property to become subject to additional state and
local taxes for past years. This provision shall survive Closing.
13. CONDEMNATION. In the event any portion of the Property shall be taken
in an eminent domain proceeding prior to the Closing, or in the event the Seller
receives, prior to Closing, written notice of a proposed eminent domain
proceeding against the Property, Seller shall promptly notify Purchaser and
Purchaser, by notice to Seller within thirty (30) days following Seller's
notice, may elect to either terminate this Agreement or continue this Agreement
in full force and effect. In the event the Purchaser elects to terminate this
Agreement, the Xxxxxxx Money shall be immediately refunded to Purchaser. In the
event the Purchaser elects to continue this Agreement in full force and effect,
the Seller shall at Closing assign to Purchaser all of its rights in and to any
such condemnation awards or proceedings.
14. RISK OF LOSS. The risk of any and all losses to the Property as a
result of a casualty from and after the Effective Date hereof but prior to
Closing shall be on the Seller. In the event that a "substantial portion" of the
Property is damaged by a casualty prior to the Closing Date, Purchaser may elect
to terminate this Agreement in which event this Agreement shall thereafter be
null, void and of no further effect and the Xxxxxxx Money deposit shall be
returned to Purchaser; or if Purchaser so elects, Purchaser may purchase the
Property in its damaged condition and receive an assignment of Seller's
insurance proceeds on the Property. For purposes hereof, a "substantial portion"
of the Property shall constitute damage which costs more than Twenty-Five
Thousand and 00/100ths ($25,000.00) Dollars to repair.
15. BROKER. The Seller and Purchaser represent and warrant each to the
other that neither the Seller nor the Purchaser has dealt or consulted with any
real estate broker in connection with the transaction contemplated by this
Agreement other than Xxxxxxx X. Xxxxxxxxx, CCIM, SIOR and Xxxxxx Xxxxxxx, CCIM,
SIOR of NAI Xxxxx Xxxxxx, LLC, to whom the Seller shall pay a commission at
Closing in the amount specified in their separate written agreement. Without
limiting the effect of the foregoing, Seller hereby agrees to indemnify and hold
Purchaser harmless from any claim or demand made by any real estate broker or
agent claiming to have dealt or consulted with Seller contrary to the foregoing
representation of this Agreement, and the closing of the transaction
contemplated hereunder. Similarly, Purchaser hereby agrees to indemnify and hold
Seller harmless against any claims or demands made by any real estate broker or
agent other than those previously described herein claiming to have dealt or
consulted with Purchaser contrary to the foregoing representation of this
Agreement and the closing of the transaction contemplated hereunder.
16. DEFAULT, CURE AND REMEDIES.
(a) Default By Seller. In the event Seller shall fail to timely perform or
comply with any covenant, agreement, representation, warranty or
condition contained in this Agreement for any reason other than
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Purchaser's default, and such default is not cured within ten (10)
days of written demand by the Purchaser, then Purchaser, at its
option, may: (i) terminate this Agreement and receive a full refund of
its Xxxxxxx Money deposit and all costs reasonably incurred by
Purchaser with respect to due diligence in inspecting the Property
(including, without limitation, fees and costs of its attorneys); or
(ii) proceed at law or in equity to enforce the Purchaser's rights
under this Agreement including, but not limited to, the right of
specific performance and/or seek damages.
(b) Default by Purchaser. In the event Purchaser shall fail to perform or
comply with any covenant, agreement or condition contained in this
Agreement for any reason other than Seller's default and such default
is not cured within ten (10) days of written demand by the Seller,
then Seller, at its option, may: (i) terminate this Agreement and
receive the Xxxxxxx Money as agreed liquidated damages and in full
settlement of any claims which Seller may have against Purchaser, it
being expressly agreed that the actual amount of Seller's damages will
be difficult to ascertain and therefore, said Xxxxxxx Money is a fair
measure of the Seller's damages. In such event, all rights and
liabilities under this Agreement shall terminate and be null and void
upon the payment of the Xxxxxxx Money deposit to Seller.
(c) Waiver. Failure of the non-defaulting party to give notice of an
uncured default shall not constitute waiver of such default unless 50
stated in writing by the non-defaulting party.
(d) Attorney's Fees and Costs. If any litigation shall be instituted for
the purpose of enforcing or interpreting any of the provisions of this
Agreement, the prevailing party, as determined by the Court having
jurisdiction thereof, shall be entitled to recover, in addition to all
other relief, an amount equal to all costs and expenses incurred in
connection therewith, including, without limitation, reasonable legal
expenses (including but not necessarily limited to reasonable fees for
services of attorneys) at the trial level and in connection with all
appellate proceedings.
17. TIME. Time is of the essence with respect to each and every provision
of this Agreement. However, any time period provided for herein which shall end
on a Saturday, Sunday or legal holiday, shall extend to 5:00 P.M. of the next
full business day.
18. NOTICES. Whenever notice is required or permitted under the terms of
this Agreement, it shall be in writing and (a) personally delivered or (b) sent
postage or delivery charges prepaid either (i) by United States mail, certified,
return receipt requested, in which case notice shall be deemed to occur on the
certified date of delivery or rejection of delivery or (ii) by any recognized
express delivery service which provides evidence of delivery, in which case
notice shall be deemed to occur on the date of delivery, or (iii) by facsimile
transmission during normal business hours on a business day evidenced by written
confirmation that the transmission was received [provided that such telecopier
notice is also promptly followed by one of the procedures set forth in (i), (ii)
or (iii), in which case notice shall be deemed to occur on the date of facsimile
transmission].
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All notices or other communications provided for herein shall be in
writing and shall be delivered in accordance with the terms hereof to the
parties at the following addresses:
If to the Seller: Xxxxxx Xxxxxxx, CCIM, SICR
----------------- NAI Xxxxx Xxxxxx, LLC
000 X. Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
If to the Purchaser: W.C. "Chip" Xxxxxx, III
-------------------- First South Bank
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
If to Purchaser: Xxxxxxx X. Xxxxxxxxx, CCIM, SIOR
---------------- NAI Xxxxx Xxxxxx, LLC
000 X. Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
If to the Escrow Agent: NAI Xxxxx Xxxxxx, LLC
----------------------- 000 X. Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Legal counsel for a party may provide or deliver a notice on behalf of
such party. Any party wishing to change its address or the name of the person to
whom notices should be delivered from that set forth above may do so in
accordance with the notice provisions set forth in this Section.
19. MARKETING OF PROPERTY. As long as this Agreement is in effect, Seller
shall not market the Property for sale or enter into any "back-up" contract for
the sale of the Property or any portion thereof.
20. MISCELLANEOUS PROVISIONS.
(a) Time for Acceptance. If this Agreement is not executed by Seller and a
fully executed original thereof returned to the Purchaser on or before
the 24th day of November, 2006 the terms of this Agreement shall be
null and void, at the Purchaser's option, upon written notice to the
Seller.
(b) Counterparts. Any number of counterparts of this Agreement may be
signed and delivered, each of which shall be considered an original
and all of which, together, shall constitute one and the same
instrument.
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(c) Choice of Law. This Agreement is to be governed by, enforced and
construed in accordance with the laws of the State of South Carolina.
(d) Assignment. The Agreement is not assignable by Purchaser without the
express written consent of Seller which shall not be unreasonably
withheld, conditioned or delayed.
(e) Successors and Assigns. This Agreement and the terms, provisions,
agreements, covenants, conditions, warranties and representations
contained herein, shall be binding upon, and inure to the benefit of,
the parties hereto, their respective heirs, legal representatives,
successors and assigns.. This Agreement including the Exhibits hereto
contains the entire agreement between Seller and Purchaser with
respect to the subject matter hereof and cannot be varied or modified
except by written instrument signed by both parties hereto. The
parties further agree that there are no other written or oral
agreements, understandings, representations, or warranties which have
not been expressly set forth herein.
(f) Waiver. No waiver hereunder of any condition or breach shall be deemed
to be a continuing waiver or a waiver of a subsequent breach.
(g) Headings. Headings used hereunder are for convenience only and do not
constitute a substantive part of this Agreement, nor limit the matters
set forth under any heading reference.
(h) Survival of Agreement. The warranties and representations made herein
shall survive the Closing hereof and shall not merge with the delivery
of the deed for the Property and all related documents.
(i) Invalid Provisions. In the event anyone or more provisions contained
in this Agreement shall be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect the other
provisions of this Agreement.
(j) Interpretation Presumption. The parties represent and warrant to one
another that each has, by counselor otherwise, actively participated
in the finalization of this Agreement, and in the event of a dispute
concerning the interpretation of this Agreement, each party hereby
waives the doctrine that an ambiguity should be interpreted against
the party which has drafted the document.
21. DISCLOSURE. Seller is aware and understands that Xxxxxxx X. Xxxxxxxxx
is a South Carolina licensed real estate broker (but not Seller's agent), and
represents the Purchaser in this transaction. Furthermore Seller, by execution
hereof gives its informed consent for Xxxxxxx X. Xxxxxxxxx'x involvement as a
designated agent.
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IN TESTIMONY WHEREOF, witness the signatures of the parties hereto.
In the presence of:
WITNESSES: PURCHASER: First South Bank
s/ s/
----------------------------- ------------------------------------------
s/ Print Name: X. X. Xxxxxx, III
----------------------------- ------------------------------
Date of Execution: 11/21/06
------------------------
WITNESSES: SELLER: Church at Hampton, LLC c/o
Xxxxxxx X. Xxxxx
s/ s/
----------------------------- ------------------------------------------
s/ Print Name: Xxxxxxx X. Xxxxx
----------------------------- ------------------------------
Date of Execution: 11/22/06
-----------------------
THIS IS A LEGALLY BINDING CONTRACT, IF NOT COMPLETELY UNDERSTOOD, WE RECOMMEND
YOU SEEK COMPETENT ADVICE FROM YOUR ATTORNEY.
[Attachments Omitted]
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