1
EXHIBIT 10.11
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made between
NationsBank, N.A. (South), a national banking association ("Seller"), and The
Summit National Bank ("Purchaser").
In consideration of the mutual covenants and representations herein
contained, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, the following described property (herein
collectively called the "Property"):
(a) Land. That certain tract of land (the "Land") in Gwinette County,
Georgia being more particularly described on EXHIBIT A attached hereto and
incorporated herein by reference;
(b) Improvements. All improvements (the "Improvements") in and on the
Land;
(c) Tangible Personal Property. Subject to the provisions of Section
9.2 hereafter, all of Seller's rights, title and interest in all appliances,
fixtures, equipment, machinery, furniture, carpet, drapes and other personal
property, if any, located on or about the Land and the Improvements (the
"Tangible Personal Property");
(d) EASEMENTS. All easements, if any, benefiting the Land or the
Improvements;
(e) RIGHTS AND APPURTENANCES. All rights and appurtenances pertaining
to the foregoing, including any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way; and
(f) KEYS. All keys to locks on the Property.
2.
PURCHASE PRICE
PURCHASE PRICE. The purchase price (the "Purchase Price") for the Property
shall be SEVEN HUNDRED FIFTY-FIVE THOUSAND DOLLARS ($755,000.00) in cash and
shall be paid by Purchaser to Seller at the closing (as defined in Section
6.1).
3.
XXXXXXX MONEY
3.1 XXXXXXX MONEY. Upon execution of this Agreement, Purchaser shall
deliver to Xxxxxx, Xxxxxxx & Xxxxxxx, L.L.P. ("Escrow Agent"), the sum of
SEVENTY-FIVE THOUSAND
2
DOLLARS ($75,000.00) in cash (the "Xxxxxxx Money'). If the sale of the
Property is consummated pursuant to the terms of this Agreement, the Xxxxxxx
Money shall be retained by Seller and applied to the payment of the Purchase
Price. If Purchaser terminates this Agreement in accordance with any right to
terminate granted by this,Agreement, the Xxxxxxx Money shall be immediately
returned to Purchaser, and no party hereto shall have any further obligations
under this Agreement. Except as otherwise provided herein, in the event the
sale of the Property is not consummated after Purchaser has approved the
matters set forth in Section 4.1 and 4.2 of this Agreement, all Xxxxxxx Money
deposited hereunder shall be retained by Seller, and no party shall have any
further obligations under this Agreement. Seller and Purchaser shall enter
into an Escrow Agreement with Escrow Agent in the form attached hereto as
Exhibit "B" with regard to the Xxxxxxx Money.
4.
CONDITIONS TO CLOSING
4.1 Title and Survey. Within twenty (20) days after the date of
this Agreement, Seller shall (at Purchaser's expense) provide Purchaser with a
Commitment for an Owner's Policy of Title Insurance (the 'Title Commitment"),
such Policy to name Purchaser as the insured, in the amount of the Purchase
Price, and insuring that Purchaser owns good and indefeasible fee simple title
to the Property, subject only to the Permitted Exceptions, as hereinafter
defined. Purchaser shall have thirty (30) days after the date of this
Agreement within which to approve or disapprove the Title Commitment and Survey
(to be obtained by Purchaser), including the information reflected therein,
such approvals or disapprovals to be within Purchaser's sole discretion. If
Purchaser fails to disapprove any such item by written notice to Seller within
such period, Purchaser shall be deemed to have approved such items. If
Purchaser disapproves any such item by written notice to Seller during such
period, Purchaser may terminate this Agreement in its sole and absolute
discretion. The title exceptions listed in Schedule B of the Commitment for
Title Insurance and all items shown on the survey specified in this Section 4.1
which Purchaser approves or is deemed to approve pursuant to this Section 4.1
and all leases affecting the Property are hereinafter called the "Permitted
Exceptions. At Purchaser's option and expense, Purchaser may obtain a current
survey of the Property (the "Survey") prepared by a licensed surveyor.
4.2 Inspection. Purchaser may inspect the Property at any
reasonable time during business hours within thirty (30) days from the date of
this Agreement. If such inspection reveals any fact or condition unacceptable
to Purchaser, Purchaser shall notify Seller of such unacceptable fact or
condition and may terminate this Agreement, and neither party shall have any
further rights, duties or obligations hereunder. In the event Purchaser does
not give such notification to Seller within such time period, the said
inspection of the Property shall be deemed satisfactory to Purchaser.
Purchaser shall be liable for all damage or injury to person or property
resulting from any such inspection occasioned by the acts of Purchaser, its
employees, agents or representatives, and Purchaser shall indemnify and hold
harmless Seller from any liability resulting therefrom. This indemnification
by Purchaser shall survive the Closing or the termination of this Agreement, as
applicable.
4.3 Termination, If this Agreement is terminated pursuant to
Section 4.1 or " above, the Xxxxxxx Money will be promptly refunded to
Purchaser, and neither party shall have any further obligations under this
Agreement.
PURCHASE AND SALE AGREEMENT
PAGE 2
3
5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS
TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION
OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANYONE ELSE MAY
CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH
ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OF MATERIALS, IF ANY, INCORPORATED INTO
THE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY; OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND
SPECIFICALLY, THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL
PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR
EQUIPMENTS, INCLUDING SOLID WASTE, AS DEFINED BY THE U.S. ENVIRONMENTAL
PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR
EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCE AS DEFINED BY THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS
AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE
PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED
WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY,
OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO
THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR
HEREIN IS MADE ON AN "AS-IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS
UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY
PURCHASER SUBJECT TO THE FOREGOING.
PURCHASE AND SALE AGREEMENT
PAGE 3
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6.
CLOSING
6.1 Closing. The closing ("Closing") shall be held at the offices
of Escrow Agent at 0000 Xxxx Xxxxxx Xxxxx, X. X., Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, on or before forty-five (45) days from the date of this Agreement (the
"Closing Date"), unless the parties mutually agree upon another place or date.
6.2 Seller's Obligations at Closing, At Closing, Seller shall
deliver to Purchaser the following documents:
(a) Deed. Limited Warranty Deed (the "Deed") executed by
Seller conveying the Land to Purchaser in the form attached to this Agreement
as Exhibit C subject to no exceptions other than the Permitted Exceptions.
(b) Evidence of Authority. Copy of Seller's resolutions,
certified by Seller as true and complete, as of the Closing Date, so as to
evidence the authority of the persons signing the Deed and other documents to
be executed by Seller at Closing and the power and authority of Seller to
convey the Property to Purchaser in accordance with this Agreement.
(c) Foreign Person. An affidavit of Seller certifying
that Seller is not a "foreign person" as defined in the federal Foreign
Investment in Real Property Tax Act of 1980.
(d) Georgia Resident. An affidavit of Seller certifying
that Seller is a resident of the State of Georgia.
(e) Owner's Affidavit. An affidavit of Seller
satisfactory to the Title Company stating that no repairs or improvements have
been made to the Property ninety (90) days prior to the Closing Date in the
form attached hereto as Exhibit D.
(f) Xxxx of Sale and Assignment. A Xxxx of Sale and Assignment
(the "Xxxx of Sale") executed by Seller and assigning to Purchaser the Tangible
Personal Property in the form attached hereto as Exhibit E.
(g) Transfer Tax Declaration. Transfer Tax Declarations in
compliance with Georgia law.
6.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall
deliver to Seller the Purchase Price by cashier's check or wire transfer of
immediately available funds.
6.4 Proration. All rents, if any, with respect to the Property
for the month in which the Closing occurs, and real estate taxes and other
assessments with respect to the Property for the year in which the Closing
occurs, shall be prorated to the Closing Date.
(a) If the Closing shall occur before rents, all other
amounts payable by the tenants under Leases and all other income from the
Property have actually been paid for the month in which the Closing occurs, the
apportionment of such rents, other amounts and other income shall be upon the
basis of such rents, other amounts and other income actually received by
Seller. Subsequent to the Closing, if any such rents, other amounts and other
income, are collected by Purchaser, Purchaser shall pay to Seller its
proportionate share thereof for such month.
PURCHASE AND SALE AGREEMENT
PAGE 4
5
Purchaser shall make a good faith effort and attempt to collect any such rents,
other amounts and other income not apportioned at the Closing for the benefit
of Seller.
(b) If the Closing shall occur before the actual amount
of utilities and other operating expenses with respect to the Property for the
month in which the Closing occurs are determined, the apportionment of such
utilities and other operating expenses shall be upon the basis of an estimate
by Seller of such utilities and other operating expenses for such month.
Subsequent to the Closing, when the actual amount of such utilities and other
operating expenses with respect to the Property for the month in which the
Closing occurs are determined, the parties agree to adjust the proration of
such utilities and other operating expenses and, if necessary, to refund or
repay such sums as shall be necessary to effect such adjustment.
(c) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current year, the
apportionment of taxes for the year in which the Closing occurs shall be upon
the basis of the tax rate for the preceding year applied to the latest assessed
valuation. If the Property is not assessed as a separate parcel for tax or
assessment purposes, then such taxes and assessments attributable to the
Property shall be determined by Seller in its sole and absolute discretion.
If, as of the Closing, the Property is not being treated as a separate tax
parcel, then within thirty (30) days after the Closing, Purchaser shall, as its
sole cost and expense have the Property assessed separately for tax and
assessment purposes. (*) See page 5 (a) This agreement of Seller and Purchaser
set forth in this Section 6.4 shall survive the Closing.
6.5 Possession. Possession of the Property shall be delivered to
Purchaser at closing, subject to the Permitted Exceptions.
6.6 Closing Costs. Except as otherwise expressly provided herein,
Purchaser shall pay, on the Closing Date, the title insurance premium and
related title search expenses for the Owner's Commitment and Policy, any escrow
fees and other customary charges of the title company, the cost of any audits,
surveys and inspections, and any sales tax or similar tax due in connection
with the transfer of the Tangible Personal Property, and Seller shall pay, on
the Closing Date, all recording costs and any transfer tax due in connection
with the recording of the Deed. Each party shall pay its own attorneys' fees.
7.
RISK OF LOSS
7.1 Casualty. If the Property, or any part thereof suffers any
damage prior to Closing from fire or other casualty, which Seller shall have no
obligation to repair, Purchaser may either (a) terminate this Agreement or (b)
consummate the Closing, in which latter event the proceeds of any insurance
covering such damage, up to the amount of the Purchase price, shall be assigned
to Purchaser at Closing.
7.2 Condemnation. If, prior to Closing, action is initiated or
threatened to take any of the Property by eminent domain proceedings or by deed
in lieu thereof, Purchaser shall have ten (10) days from receipt of written
notice of such event from Seller to advise Seller that it intends to (a)
terminate this Agreement or (b) consummate the Closing, in which latter event
the award of the condemning authority shall be assigned to Purchaser at the
Closing. If Seller does not receive any such notice from Purchaser within such
ten (10) day period, then Purchaser shall be deemed to have elected option (b)
of this section 7.2.
PURCHASE AND SALE AGREEMENT
PAGE 5
6
Section 6 (d) Purchaser agrees to pay prorata share of personal
property taxes for the year of closing as evidenced by
personal property tax return and property tax xxxx for 1995
only on the personal property conveyed to Purchaser as shown
on said personal property tax return.
Purchaser & Sale Agreement
Page 5 (a)
7
8.
DEFAULT
8.1 Breach by Seller. If Seller breaches this Agreement, Purchaser
may terminate this Agreement and thereupon shall be entitled to the immediate
return of the Xxxxxxx Money, together with all accrued interest thereon, as its
sole and exclusive remedy and relief thereunder. In no event shall Seller be
liable to Purchaser for any actual, punitive, speculative, consequential or
other damages.
8.2 Breach by Purchaser. If Purchaser breaches this Agreement,
Seller shall be entitled to the Xxxxxxx Money together with all interest
accrued thereon, if any, as liquidated damages (and not as a penalty) and as
Seller's sole remedy and relief hereunder. Seller and Purchaser have made this
provision for liquidated damages because it would be difficult to calculate on
the date hereof the amount of actual damages for such breach, and these sums
represent reasonable compensation to Seller for such breach.
9.
FUTURE OPERATIONS
9.1 Future Operations. From the date of this Agreement
until the Closing or earlier termination of this Agreement:
(a) Maintenance, Litigation. Except for condemnation and
casualty which are provided for in Section 7, Seller (i) will keep and maintain
the Property in its condition as of the date of this Agreement (reasonable wear
and tear excepted), and (ii) will use its beat effort promptly to advise
Purchaser of any litigation, arbitration, or administrative hearing concerning
the Property arising or threatened after the date of this Agreement.
(b) Contracts. Seller will not, without the prior written
consent of Purchaser, modify, enter into, or renew any contract which cannot be
canceled upon thirty (30) days' prior written notice.
PURCHASE AND SALE AGREEMENT
PAGE 6
8
9.2 Seller's Property. Purchaser acknowledges that Seller is currently
operating a branch banking facility on the Property. Seller shall be entitled,
at Seller's option, to remove from the Property prior to the closing, all
supplies, records, documents, cash, coin, furniture and furnishings (other than
the furniture and furnishings located on the first floor), decorations,
equipment(other than the equipment which has been removed by Seller prior to
Seller's execution of this Agreement and equipment that is leased by Seller),
trade fixtures (including, without limitation, all security systems, but not
the wiring for such systems, alarms, cameras, nameplates of any pylon signs,
nameplates of any monument signs, nameplates of any drive-through signage, and
safe deposit boxes), computers and computer-related equipment,
telecommunication equipment, and other miscellaneous items of personal property
relating to the operation of Seller's business, and such items removed by
Seller shall be excluded from the Tangible Personal Property to be conveyed
hereunder and shall remain the property of Seller. The following items shall
be left by Seller at the Property (if the same are currently located thereon)
and included in the Tangible Personal Property to be conveyed to Purchaser:
ATM, vault door, night depository, undercounter equipment, drive-in equipment
and directional signage.
/s/
---------------------
6-20-96
Page 6(a)
9
10.
CONFIDENTIALITY
10.1 Non-Disclosure. From and after the Effective Date of
this Agreement or unless with the prior written consent of the other party,
neither Purchaser nor Seller shall prior to the Closing (i) make or permit to be
made any announcements or press releases concerning the existence of this
Agreement, the terms of the purchase of the Property or any other information
concerning this Agreement or the transaction contemplated herein or (ii)
disclose or permit to be disclosed, directly or indirectly, to any person or
entity any information in respect of the Property which is obtained pursuant to
this Agreement or through Property or records concerning the Property. (* -
continued on page 7 (a))
10.2 Limited Disclosure to Advisors. Each party shall have the
right to disclose information in respect of the Property to its attorneys,
accountants, prospective lenders and their Counsel so long as they agree to be
bound by the terms of this Section 10.
MISCELIANEOUS
11.1 Notice. Whenever this Agreement requires or permits any
consent, approval, notice, request, or demand from one party to the other
(collectively "Notice"), such Notice must be in writing to be effective and
shall be effective on the date of actual receipt of such Notice by the
addressee or when the attempted initial delivery is refused or when it cannot
be made because of a change of address of which the sending party has not been
notified. The following shall, without limitation, be prima facia evidence of
actual receipt of Notice by the addressee: (a) if mailed, by a United States
certified mail return receipt, signed by the addressee or the addressee's
agent; (b) if by telegram, by a telegram receipt signed by the addressee or the
addressee's agent; or (c) if handdelivered, by a delivery receipt, signed by
the addressee or the addressee's agent. The parties' respective addresses for
delivery of any Notice are set forth below unless another address within the
state of Georgia is designated in writing by any party to the other.
If to Seller:
NationsBank, N.A. (South)
000 Xxxxxxxxx Xxxxxx (30308)
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxx
GA2-002-10-02
With a copy to:
Xxxx X. Xxxxxxx, Esq.
NationsBank, N.A. (South)
000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
FL1-010-15-02
PURCHASE AND SALE AGREEMENT
PAGE 7
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Continuation
Section 10.1 However, the parties acknowledge that Purchaser shall be
permitted to disclose its purchase of the Property as
necessary to fulfill the application for authorization from
the Comptroller of Currency to operate Purchaser's business
at the Property.
Purchase & Sale Agreement
Page 7(a)
11
If to Purchaser:
The Summit National Bank c.c. Xxxxx Xxxxxxx
0000 Xxxxxxxx-Xxxxxxxx Xxxx Alembik & Alembik
Xxxxxxx, Xxxxxxx 00000 0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
If to Escrow Agent:
Xxxxxx, Xxxxxxx & Xxxxxxx, L.L.P.
0000 Xxxx Xxxxxx Xxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, 11, Esquire
11.2 Real Estate Commissions. Neither Seller nor Purchaser has
contacted any real estate broker, finder or similar person in connection with
the transaction contemplated hereby, except Lincoln Property Company Commercial
Service Enterprises, Inc. and Xxxxx Xxxxxxx Co. (the "Brokers"). Seller shall
pay to the Brokers at the Closing a brokerage fee in the aggregate amount of
six (6.O%) percent of the Purchase Price; provided, however, that Brokers' right
to such brokerage fee shall vest only at Closing, and no commission shall be
due if the Closing does not occur for any reason. The aforesaid commission
shall be divided between the Brokers as follows: three percent (3.0%) to
Lincoln Property Company Commercial Service Enterprises, Inc. and three percent
(3.0%) to Xxxxx Xxxxxxx Co. To the actual knowledge of Seller and Purchaser, no
other Acquisition Fees (as hereafter defined) have been paid or are due and
owing to any other person or entity other than to the Brokers. Neither of the
Brokers shall be entitled to any portion of the Xxxxxxx Money in the event the
same or any part thereof is forfeited to Seller. As used herein, "Acquisition
Fees" shall mean all fees paid to any person or entity in connection with the
selection and purchase of the Property, including real estate commissions,
selection fees, and non-recurring management and start-up fees, development
fees or any other fee of similar nature. Seller and Purchaser each hereby
agree to indemnify and hold harmless the other from and against any and all
claims for Acquisition Fees or similar charges with respect to this transaction
arising by, through or under the indemnifying party and each further agrees to
indemnify and hold harmless the other from any loss or damage resulting from
an inaccuracy in the representations contained in this Section 11.2. This
indemnification agreement of the parties shall survive the Closing.
11.3 Entire Agreement. This Agreement embodies the entire
agreement between the parties relative to the subject matter hereof, and there
are no oral or written agreements between the parties nor any representations
made by either party relative to the subject matter hereof which are not
expressly set forth herein.
11.4 Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
11.5 Headings. The captions and headings used in this Agreement are
for convenience only and do not in any way limit, amplify, or otherwise modify
the provisions of this Agreement.
11.6 Time of Essence. Time is of the essence of this Agreement.
However, if the final date of any period which is not set out in any provision
of this Agreement falls on a Saturday, Sunday or legal holiday under the law of
the United States or the State of Georgia, then in such event, the time of such
period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
PURCHASE AND SALE AGREEMENT
PAGE 8
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11.7 Governing Law. This Agreement shall be governed by the laws of
the State of Georgia and the applicable federal laws of the United States.
11.8 Successors and Assigns. This Agreement shall bind and inure to
the benefit of Seller and Purchaser and their respective heirs, executors,
administrators, personal and legal representatives, successors and assigns.
Purchaser shall not assign Purchaser's rights under this Agreement without the
prior written consent of Seller.
11.9 Invalid Provision. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provisions had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
11.10 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages as herein provided, reasonable
attorneys' fees incurred in such suit.
11.11 Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which for all purposes is deemed an
original, and all of which constitute collectively one (1) agreement.
11.12 Date of This Agreement. This Agreement shall be null and void
unless Purchaser, no later than May 10, 1996, delivers five (5) executed copies
of this Agreement to Seller at the address shown in Section 11.1. I hereof. As
used in this Agreement, the terms "date of this Agreement" or "date hereof"
shall mean and refer to the date of execution of this Agreement by Seller.
PURCHASE AND SALE AGREEMENT
PAGE 9
13
11.13 Exhibit. The following exhibits are attached to this
Agreement and are incorporated into this Agreement and made a part hereof:
(a) Exhibit A, the land;
(b) Exhibit B, the Escrow Agreement;
(c) Exhibit C, the Limited Warranty Deed;
(d) Exhibit D, the Affidavit of Ownership; and
(e) Exhibit E, the Xxxx of Sale.
SELLER:
DATE OF EXECUTION BY SELLER: NationsBank, N.A. (South), a national
banking association
6-19-96 By: /s/ Xxxxxx X. Xxxx
------- ---------------------------
Name: Xxxxxx X. Xxxx
-------------------------
Title: Vice President
------------------------
PURCHASER:
DATE OF EXECUTION BY PURCHASER: THE SUMMIT NATIONAL BANK
5-3-96 BY: /s/ Xxxx XxXxxxx
------ ---------------------------
Name: Xxxx XxXxxxx
-------------------------
Title: Executive Vice President
------------------------
PURCHASE AND SALE AGREEMENT
PAGE 10
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ACKNOWLEDGMENT AND AGREEMENT BY THE AGENT
The undersigned joins in execution of this Agreement for the purpose of
representing and warranting to Purchaser and Seller that the undersigned (i) is
a duly licensed real estate broker under the real estate licensing
act(s) of the State of Georgia and any applicable regulations, (ii) is duly
authorized to earn and receive a commission in connection with the transaction
evidenced by this Agreement, and (iii) acknowledges and agrees to the terms and
provisions of Section 11.2 hereof, including, without limitation, the
entitlement to commission only accruing upon a final closing of the
transaction. The undersigned shall indemnify and hold Purchaser and Seller
harmless from any loss, liability, damage, cost or expense (including
attorneys' fees) resulting by reason of a breach of the representations and
warranties made herein.
BROKER:
LINCOLN PROPERTY COMPANY
COMMERCIAL SERVICE ENTERPRISES,
INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Broker
----------------------------------
Date: 6-20-96
-----------------------------------
PURCHASE AND SALE AGREEMENT
PAGE 11
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ACKNOWLEDGMENT AND AGREEMENT BY THE AGENT
The undersigned joins in execution of this Agreement for the purpose of
representing and warranting to Purchaser and Seller that the undersigned (i) is
a duly licensed real estate broker under the real estate licensing act(s) of
the State of Georgia and any applicable regulations, (ii) is duly authorized to
earn and receive a commission in connection with the transaction evidenced by
this Agreement, and (iii) acknowledges and agrees to the terms and provisions
of Section 11.2 hereof, including, without limitation, the entitlement to
commission only accruing upon a final closing of the transaction. The
undersigned shall indemnify and hold Purchaser and Seller harmless from any
loss, liability, damage, cost or expense (including attorneys' fees) resulting
by reason of a breach of the representations and warranties made herein.
BROKER:
XXXXX XXXXXXX CO.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
-----------------------------------
Title: Secretary
----------------------------------
Date: 5/3/96
-----------------------------------
PURCHASE AND SALE AGREEMENT
PAGE 12
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FIRST AMENDMENT TO PURCHASE AND
SALES AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALES AGREEMENT ("Agreement") is
made between NationsBank, N.A. (South), a national banking association
("Seller"), and the Summit National Bank ("Purchaser"), and Xxxxxx, Xxxxxxx &
Xxxxxxx, L.L.P. ("Escrow Agent") and the Real Estate Brokers herein named.
In consideration of the mutual covenants and representations herein
contained, Seller and Purchaser agree to amend the Purchase and Sales Agreement
as follows:
1.
PURCHASE AND SALE
1. Notwithstanding anything to the contrary set forth in Paragraph
6.1 of the Purchase and Sales Agreement now existing between the parties, the
closing shall take place on or before August 20, 1996.
2. It is agreed between the parties hereto that all of the other
terms and conditions of the aforementioned Purchase and Sales Agreement shall
remain in full force and effect except as modified herein.
3. Upon execution by all parties, this First Amendment shall be
attached to and form a part of said Purchase and Sales Agreement.
IN WITNESS WHEREOF, the parties have hereto set their hands and seals
through their duly authorized officers.
DATE OF EXECUTION BY SELLER: SELLER:
NationsBank, N.A. (South), a national
banking association
7-2-96
---------------------------
By: /s/ Xxxxxx X. Show
--------------------------------
Name: Xxxxxx X. Show
--------------------------------
Title: V.P.
--------------------------------
DATE OF EXECUTION BY PURCHASER:
PURCHASER: THE SUMMIT NATIONAL BANK
--------------------------- By:
-----------------------------------
Name: Xxxx XxXxxxx
Title: Executive Vice President
17
FIRST AMENDMENT TO PURCHASE AND
SALES AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALES AGREEMENT ("Agreement") is
made between NationsBank, N.A. (South), a national banking association
("Seller"), and the Summit National Bank ("Purchaser"), and Xxxxxx, Xxxxxxx &
Xxxxxxx, L.L.P. ("Escrow Agent") and the Real Estate Brokers herein named.
In consideration of the mutual covenants and representations herein
contained, Seller and Purchaser agree to amend the Purchase and Sales Agreement
as follows:
1.
PURCHASE AND SALE
1. Notwithstanding anything to the contrary set forth in
Paragraph 6.1 of the Purchase and Sales Agreement now existing between the
parties, the closing shall take place on or before August 20, 1996.
2. It is agreed between the parties hereto that all of the other
terms and conditions of the aforementioned Purchase and Sales Agreement shall
remain in full force and effect except as modified herein.
3 Upon execution by all parties, this First Amendment shall be
attached to and form a part of said Purchase and Sales Agreement.
IN WITNESS WHEREOF, the parties have hereto set their hands and seals
through their duly authorized officers.
DATE OF EXECUTION BY SELLER: SELLER:
NationsBank, N.A. (South), a national
---------------------------- banking association
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DATE OF EXECUTION BY PURCHASER:
PURCHASER: THE SUMMIT NATIONAL BANK
By: /s/ Xxxx XxXxxxx
-------------------------------------
July 3, 1996 Name: Xxxx XxXxxxx
------------ -----------------------------------
Title: Executive Vice President
----------------------------------
18
ESCROW AGENT:
XXXXXX, XXXXXXX &
XXXXXXX, L.L.P.
By:
---------------------------
Name: Xxxxxxx X. Xxxxxx, XX
Title: Partner
Date:
-------------------------
BROKER:
XXXXX XXXXXXX CO.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Date:
-------------------------
BROKER:
LINCOLN PROPERTY COMPANY
COMMERCIAL SERVICE
ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
------------------------
Title: Broker
------------------------
Date: 7-2-96
------------------------
19
ESCROW AGENT:
XXXXXX, XXXXXXX &
XXXXXXX, L.L.P.
By:
------------------------------
Name: Xxxxxxx X. Xxxxxx, XX
Title: Partner
Date:
----------------------------
BROKER:
XXXXX XXXXXXX CO.
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
----------------------------
Title: Secretary
---------------------------
Date: 7/3/96
----------------------------
BROKER:
LINCOLN PROPERTY COMPANY
COMMERCIAL SERVICE
ENTERPRISES, INC.
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
Date:
----------------------------
20
SECOND AMENDMENT TO PURCHASE AND
SALES AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALES AGREEMENT ("Agreement") is
made between NationsBank, N.A. (South), a national banking association
("Seller"), and the Summit National Bank ("Purchaser"), and Xxxxxx, Xxxxxxx &
Xxxxxxx, L.L.P. ("Escrow Agent") and the Real Estate Brokers herein named.
In consideration of the mutual covenants and representations herein
contained, Seller and Purchaser agree to amend the Purchase and Sales Agreement
as follows:
1. Notwithstanding anything to the contrary set forth in Paragraph
2 "Purchase Price" of the Purchase and Sales Agreement now existing between the
parties, the purchase price of the property shall be Seven Hundred Forty
Thousand Dollars ($740,000.00) and shall be paid in cash by Purchaser to Seller
at closing (as defined in Section 6.1).
2. It is agreed between the parties hereto that all of the other
terms and conditions of the aforementioned Purchase and Sales Agreement as
originally modified by the First Amendment to said Purchase and Sales
Agreement, shall remain if full force and effect except as modified herein.
3. Upon execution by all parties, this Second Amendment shall be
attached to and form a part of said Purchase and Sales Agreement.
IN WITNESS WHEREOF, the parties have hereto set their hands and seals
through their duly authorized officers.
DATE OF EXECUTION BY SELLER: SELLER:
NationsBank, N.A. (South), a national
banking association
8/9/96
---------------------------
By: /s/ Xxxxxx X. Show
----------------------------------
Name: Xxxxxx X. Show
--------------------------------
Title: V.P.
-------------------------------
DATE OF EXECUTION BY PURCHASER:
PURCHASER: THE SUMMIT NATIONAL BANK
8/9/96 By: /s/ Xxxx XxXxxxx
--------------------------- ---------------------------------
Name: Xxxx XxXxxxx
Title: Executive Vice President
-1-
21
ESCROW AGENT:
XXXXXX, XXXXXXX &
XXXXXXX, L.L.P.
By: /s/ Xxxxxxx X. Xxxxxx, XX
--------------------------------
Name: Xxxxxxx X. Xxxxxx, XX
Title: Partner
Date: 8/9/96
------------------------------
BROKER:
XXXXX XXXXXXX CO.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
------------------------------
Title: Secretary
-----------------------------
Date: 8/9/96
-----------------------------
BROKER:
LINCOLN PROPERTY COMPANY
COMMERCIAL SERVICE
ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Broker
-----------------------------
Date: 8/9/96
-----------------------------
-2-
