1
EXHIBIT 10.1
CONTRACT FOR THE PURCHASE AND
SALE OF REAL PROPERTY
THIS AGREEMENT made and entered into this 8 day of October, 1999, by
and between XXXXX X. XXXXXXX D/B/A GRAND PAVILLION ("Seller"), and INTEGRITY
BANK ORGANIZING GROUP, L.L.P. ("Purchaser"),
W I T N E S S E T H: THAT
FOR AND IN CONSIDERATION of the sum of Ten ($10.00) Dollars and other
good and valuable considerations, paid by each party to the other, the receipt
and sufficiency of which are herewith acknowledged, and in consideration of the
mutual covenants contained herein, the parties hereto do hereby agree as
follows:
1. PURCHASE AND SALE. Subject to and in accordance with the terms
and provisions hereof, Seller agrees to sell and Purchaser agrees to purchase
the real estate described as Exhibit "A" and made a part hereof (the
"Premises"); all buildings, structures, improvements, and fixtures, if any, now
situated on the Premises; all right, title and interest of the Seller, including
any after-acquired title or reversion, in and to the beds of xxx xxxx, xxxxx,
xxxxxxx, xxxxxxx and alleys adjoining the Premises; all and singular the
tenements, hereditaments, easements, appurtenances, licenses, passages, waters,
water rights, water courses, riparian rights, other rights, liberties and
privileges thereof or in any way now or hereafter appertaining, including
homestead or any other claim at law or in equity as well as any after-acquired
title, franchise or license and the reversion and reversions, remainder and
remainders thereof; and all alley rights, drainage rights and all other rights
appertaining to the use or enjoyment of the Premises and improvements located in
or upon the Premises; (all of the foregoing property being hereinafter referred
to collectively as the "Property").
2. XXXXXXX MONEY. On the date of the full execution and delivery
of this Contract by Seller and Purchaser (which date is set forth on the
signature page hereof and is referred to herein as the "Contract Date"),
Purchaser will deliver to Perimeter Title Services, Inc., as Escrow Agent, the
amount of Ten Thousand Dollars ($10,000.00), said sum to be held by said Escrow
Agent as xxxxxxx money (the "Xxxxxxx Money"), pursuant to the terms and
provisions of this Contract.
3. PURCHASE PRICE. The purchase price (the "Purchase Price") for
the Property, subject to all adjustment and credits hereinafter provided, shall
be Eight Hundred Fifty Thousand Dollars ($850,000.00), to be paid in readily
available or in certified funds or by title company or attorney trust or escrow
account check at Closing inclusive of all Xxxxxxx Money paid.
4. ACCESS AND UTILITY EASEMENTS. At Closing, Seller shall grant
and convey to Purchaser, its successors and assigns, the following perpetual,
non-exclusive easements, for the benefit of the Premises, which easements shall
be in a form reasonably acceptable to Purchaser, to-wit:
(a) An easement for vehicular and pedestrian ingress and egress,
between the Premises and Grand Pavillion Shopping Center; and
2
(b) An easement for electric, gas, telephone, water, sanitary
sewer, and storm water utility service to serve the Premises (the "Utility
Easement"), which Utility Easement shall run on, above, or under such portion of
Grand Pavillion Shopping Center that is adjacent to the Premises as is necessary
to cause such utility services to be delivered to the Premises.
5. REPRESENTATIONS AND WARRANTIES. Seller hereby warrants and
represents to Purchaser, and agrees that the following matters are now true and
shall be true as of the Closing Date:
(a) That Seller has no actual knowledge, nor has Seller received
any notice of, any actual or threatened action, litigation or proceeding
(including any condemnation or eminent domain proceedings) by any organization,
person, individual, or governmental agency against either Seller or the
Property, or with respect thereto, nor does Seller know of any basis for any
such action;
(b) That Seller will convey to Purchaser at Closing unencumbered
fee simple title to the Property, with title to the Property and to the Access
Easement and to the Utility Easement] insurable by a title insurance company
designated by Purchaser (the "Title Insurer") in the full amount of the Purchase
Price, in ALTA Form B-1992, at standard published rates, free and clear of all
restrictions, liens, encumbrances, assessments, leases, options, and other
exceptions of every kind and character except for real estate taxes relating to
the Property which are liens but not yet due and payable; Purchaser shall, at
Purchaser's expense, cause an accurate survey (the "Survey") to be made of the
Property by a registered Georgia land surveyor of Purchaser's choice, and the
legal description of the Property contained in the deed from Seller and insured
by Title Insurer and the legal description of the areas encumbered by the Access
Easement and by the Utility Easement insured by Title Insurer] shall be based
upon and conform to said Survey;
(c) That Seller has received no notice of any disputes concerning
the location of the lines and comers of the Property;
(d) That Seller has received no notice of action, contemplated
action, or plans: to close any public street adjoining the Premises; to
terminate, modify, or change any curb cut or street opening permit, license,
approval with respect to vehicular or pedestrian access between the Premises and
any adjoining public street; or to erect a median or similar barrier within any
public street adjoining the Premises that would restrict or limit access between
the Premises and such street; or to change the zoning classification or
regulations applicable to the Premises or any adjoining property;
(e) That Seller has received no notice of action, contemplated
action, or plans for a moratorium on the issuance of utility, development, or
building permits, licenses, or approvals necessary to utilize the Property
pursuant to the Plans (as said term is hereinafter defined), nor is Seller aware
of any moratorium or threat of a moratorium on applications to rezone or to seek
variances with respect to the Property;
(f) That Seller has received no notice of violations or alleged
violations of any governmental rules and/or regulations with reference to the
Property, or with reference to public or private easements for utilities which
serve and inure to the benefit of the Property;
(g) That Seller has received no notice of and has no knowledge of
any Contaminants (as said term is hereinafter defined) that have been deposited,
discharged, placed or disposed of at, on, under or near the Premises, nor has
any portion of the Premises been used as a landfill or for the disposal,
storage, sale, treatment, processing or other handling of any Contaminants. For
purposes of this Agreement, the term "Contaminants" shall mean pollutants,
contaminants, toxic waste and other substances (including but
3
not limited to asbestos and to petroleum and petroleum-based products and
related constituents), the removal of which is required or the disposal or use
of which is regulated, restricted, prohibited or penalized by any Federal,
State, or local law or ordinance applicable to the Premises relating to
pollution or protection of the environment, including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 and
all State laws relating to underground storage tank facilities. Seller has
received no notice that any portion of the Property constitutes "wetlands" as
that term is defined by the United States Corp of Engineers or the United States
Environmental Protection Agency or is subject to regulation as "wetlands" under
any state or local law, rule or regulation;
(h) That to Seller's best knowledge no part of the Property is
located in a flood zone as such is identified by Federal, State or local
agencies; and
(i) That Seller has the authority to enter into this Contract and
to perform its obligations hereunder.
-2-
4
6. CONDITIONS PRECEDENT. The obligation of Purchaser to
consummate this Agreement, and the purchase and sale contemplated hereby in
accordance with the terms and provision of this Agreement, is subject to the
fulfillment and satisfaction on or prior to Closing as to the conditions
described below:
(a) Each and all agreements and covenants of Seller as provided in
this Agreement shall have been fully and duly performed in accordance with the
terms and provisions of this Agreement;
(b) Each and all warranties and representations of Seller as
contained in this Agreement shall be true and correct as of Closing;
(c) Receipt by Purchaser of a building permit (the "Building
Permit") for the improvement of the Premises in accordance with the Purchaser's
plans for development of the Premises as same exist from time to time (the
"Plans");
(d) Receipt by Purchaser of all authorizations and permits, in
addition to the Building Permit, including, without limitation, construction and
use permits, curb cuts, driveway access or access control permits and sign
permits relating to the development and use of the Premises, in accordance with
the Plans and the receipt of verification confirming that the development and
use of the Premises in accordance with the Plans is consistent with all
applicable zoning and subdivision laws and regulations. All applications to
procure said authorizations and permits shall be obtained at the expense of the
Purchaser, but Seller shall cooperate with Purchaser to obtain same, and shall
execute all applications, petitions and consents necessary for such purposes]
(e) Receipt by Purchaser of verification that sanitary sewer and
storm sewer and other suitable drainage facilities, and water, gas, telephone
and electric utility services, satisfactory for the proposed use of the Premises
by Purchaser, are available to and for the use of the Premises in accordance
with the Plans. All such services shall be located at the property lines of the
Premises and available for immediate connection and use without payment of any
charges or assessments by Purchaser other than usual and ordinary connection
fees or services charges;
(f) Receipt by the Purchaser of engineering studies of the
Premises, including typographical survey, soil bearing tests, hydrology tests,
and other engineering data as Purchaser may reasonably require, all meeting, in
the Purchaser's sole discretion, engineering costs and standards for development
of the Premises in accordance with the Plans for development of the Premises.
The cost of such studies shall be paid by the Purchaser;
(g) Receipt by the Purchaser of all necessary Governmental
Charters to establish Integrity Bank; and
(h) Receipt by the Purchaser of all approvals required under
Sellers Leases for Grand Pavillion concerning the use, square footage or height
of the intended use by Purchaser. Purchaser hereby represents that the intended
use is for a 16000 sq. ft., 2-story office/bank building, and shall only be used
for such purposes. The design of said building will be similar to The Peachtree
Bank building in Norcross. Purchaser will provide Seller with its plans and
specifications as soon as available for Seller to get such approvals.
Purchaser, its agents and representatives, shall have the right to
enter upon the Premises for the purpose of examining, inspecting, testing, and
surveying the Premises.
In the event Purchaser fails and/or refuses to give written notice to
Seller of the satisfaction (or waiver) of the conditions set forth above within
150 days ("Due Diligence Period"), or in the event Purchaser provides Seller
with written notice within the stipulated period(s) set forth above that it
shall be unable to satisfy one or more of the conditions set forth above within
such stipulated period(s), this Contract shall be deemed terminated without the
necessity of further documentation, all Xxxxxxx Money, if any, shall be promptly
refunded to Purchaser, and neither party to this Contract shall thereafter have
any further right or claim against the other hereunder.
-3-
5
The Purchaser may extend the Due Diligence Period for sixty (60) days
(the "Extension Period") by delivering an additional Five Thousand Dollar
($5000.00) Xxxxxxx Money Deposit to the Escrow Agent on or prior to the original
date for the expiration of the Due Diligence Period.
7. CLOSING.
(a) Purchaser and Seller shall consummate and close the sale
contemplated by this Contract (the "Closing") on or before the thirtieth (30th)
day following the expiration of the Due Diligence Period, at a time, at a place,
and on a date designated by Purchaser after the Purchaser has provided the
Seller with not less than two (2) days prior notice. Seller shall pay the State
of Georgia Transfer Tax and the cost of obtaining Purchasers Title Insurance
including Title Insurance Premium and Sellers attorney's fees. Purchaser shall
pay for all other costs associated with the closing;
(b) City, state and county ad valorem taxes and special
assessments for the calendar year of Closing shall be prorated between the
Seller and the Purchaser as of the date of Closing, provided that if the tax
xxxx for such calendar year has not been issued as of Closing, such proration
shall be based upon the tax xxxx for the prior calendar year with the parties
hereby agreeing following the Closing to adjust between themselves the
difference between such tax bills;
(c) At Closing, Seller shall pay all property transfer and similar
taxes;
(d) At the Closing, Seller will deliver to Purchaser all documents
reasonably necessary to fulfill its obligations herein, including but not
limited to the following documents (all of which shall be duly executed and
acknowledged where required and shall be in a form acceptable to Purchaser):
(i) General Warranty Deed, conveying good and marketable
fee simple title to the Property;
(ii) The Access Easement and the Utility Easement];
(iii) An Owner's Affidavit executed by the Seller
containing such representations as the Title Insurer
shall reasonably require;
(iv) Such other documents as shall be required by the
Title Insurer as a condition to insuring Purchaser's
title to the Property and to the areas encumbered by
the Access Easement and to the Utility Easement, free
of exceptions;
(v) Reaffirmation of the truth and accuracy of Sellers
representations and warranties set forth in this
Contract, and a representation that all of Seller's
agreements contained in this Contract are completely
satisfied and discharged; and
(vi) Affidavits and other documentation necessary to
satisfy State of Georgia and United States income tax
withholding requirements.
8. DEFAULT. Except as specifically provided in this Contract
relating to Conditions Precedent, or otherwise specifically provided in this
Contract, in the event the purchase and sale of the Property pursuant to this
Contract is not closed and consummated through default by Purchaser, then the
Xxxxxxx Money shall be delivered to Seller, as the full and only liquidated
damages for such default of Purchaser and as the sole remedy of Seller for any
such default by Purchaser, it being acknowledged and agreed that Seller's actual
damages would be difficult (if not impossible) to ascertain, and thereupon
neither of the parties hereto shall have any rights, duties, obligations, or
liabilities hereunder whatsoever. In the event of a default by Seller hereunder,
Purchaser may pursue an action against Seller for specific performance in
addition to the other remedies of Purchaser at law or in equity.
-4-
6
9. NOTICES. Whenever any notice is required or permitted
hereunder, such notice shall be in writing and shall be delivered in person, or
transmitted by facsimile communication or sent by U.S. Registered or Certified
Mail, Return Receipt Requested, postage prepaid, or by Federal Express, Express
Mail, or other reputable overnight delivery service, to the addresses set forth
below or at such other addresses as or specified by written notice delivered in
accordance herewith:
SELLER: Xxxxx X. Xxxxxxx d/b/a Grand Pavillion
00000 Xxxxx Xxxxxx Xx.
Xxxxx X-000
Xxxxxxxxxx, XX 00000
Facsimile #: 000-000-0000
PURCHASER: Integrity Bank Organizing Group, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xx. 00000
with copy to: Xxxxxx X. Xxxx, Esq.
Wolf & Xxxxxxxx
0000 Xxxxxxxxx Xxxxx, X-000
Xxxxxxx, Xx. 00000
Notices mailed as hereinabove provided shall be deemed effectively
given on the postmarked date of such notice if mailed, on the date delivered to
the reputable overnight delivery service if sent by overnight delivery, the date
delivered to a commercial courier service il personal delivery is made by a
commercial courier, and, otherwise, on the date actually received at the address
or facsimile number provided above.
11. MISCELLANEOUS.
(a) This agreement shall be construed and interpreted under the
laws of the state where the Property is located, without giving effect to
principals of conflicts of law.
(b) Except as otherwise provided herein, all rights, powers and
privileges conferred hereunder upon the parties shall be cumulative and not
restrictive to those given by law.
(c) The failure of either party to exercise any power given either
party hereunder or to insist upon strict compliance by either party of its
obligations hereunder shall not constitute a waiver of either party's right to
demand exact compliance with the terms hereof.
(d) This Contract contains the entire agreement of the parties
hereto with respect to the subject matter of this Agreement, and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force or effect. This provision
may not be orally waived.
(e) This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
(f) No amendment to this Contract shall be binding on any of the
parties to this Contract unless such amendment is in writing, and such amendment
is executed by all of the parties to this Contract. This provision may not be
orally waived.
-5-
7
(g) No waiver or consent permitted or contemplated by this
Contract shall be effective or binding on any of the parties hereto unless the
same is in writing and delivered and received from one party to the other.
(h) The captions and headings of the paragraphs contained in this
Contract are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or intent of such paragraphs, or in any
way affect this Contract.
(i) Time shall not be of the essence in this Contract, except with
respect to the Closing Date.
(j) Possession of the Property shall be delivered by Seller to
Purchaser no later than the date of Closing.
(k) This Contract may be executed in several counterparts, each of
which shall be deemed an original, and all such counterparts together shall
constitute one and the same instrument.
(1) All representation, warranties, and agreements which are
contained in this Contract shall survive the Closing, and any investigation made
by or any actual or constructive notice of Purchaser, and shall not be deemed to
be merged into the Warranty Deed or into any of the other documents executed and
delivered at the time of Closing.
(m) In the event that any notice or performance date hereunder
shall be required to be performed on a weekend or legal holiday, then such date
shall automatically be extended to the next regular business day.
(n) Purchaser shall have the right to assign this Contract, and
its rights hereunder, in whole or in part, at any time and from time to time, to
any third party or entity; in each instance, such assignee shall assume all
obligations of Purchaser hereunder, and shall agree to execute all documents
which Purchaser is obligated to execute pursuant to the terms and provisions of
this Contract; upon such assignment as herein authorized and permitted,
Purchaser shall be fully and completely discharged of all of Purchaser's duties,
obligations, and liabilities hereunder to the extent of such assignment.
(o) The risk of loss or damage to the Property by fire or other
casualty up to the Closing is assumed by the Seller.
(p) Within ten (10) days of the Contract Date, the Seller shall
deliver to the Purchaser copies of all surveys, civil documents, test reports,
and environmental assessments relating to the Property that are within the
Seller's possession or control.
(q) In the event of litigation to enforce the rights and
obligations under the Contract, the prevailing party shall be entitled to
recover against the other party the prevailing party's reasonable attorneys'
fees and costs arising out of such litigation.
(r) If any paragraph, section, provision, sentence, clause, or
portion of this Contract is determined to be illegal, invalid, or unenforceable,
such determination shall in no way affect the legality, validity, or
enforceability of any other paragraph, section, provision, sentence, clause, or
portion of this Contract, and any such affected portion or provision shall be
modified, amended, or deleted to the extent possible and permissible to give the
fullest effect to the purposes of the parties to this Contract.
(s) If, prior to Closing, all or any portion of the Property is
subject to an eminent domain proceeding or the threat of an eminent domain
proceeding, Seller shall promptly provide Purchaser with written notice thereof.
After receiving such notice, Purchaser shall have the option of purchasing the
Property subject to such proceedings, without reduction of the Purchase Price,
whereupon any awards attributable to the Property shall be paid to Purchaser, or
cancelling this Contract without further obligation hereunder, in which event
the Xxxxxxx Money shall be returned forthwith to Purchaser.
-6-
8
(t) The Parties hereby agree to hold Escrow Agent harmless for any
and all matters concerning this Contract and holding the Xxxxxxx Money Deposit.
Escrow Agent shall execute this Contract for the sole purpose of acknowledging
receipt of the Xxxxxxx Money from Purchaser.
IN WITNESS WHEREOF, each of the parties have hereunto set their hands
and affixed their seals the day and year written above.
SELLER: Xxxxx X. Xxxxxxx d/b/a Grand
Pavillion
-------------------------------(I.S.)
As to Seller:
October 8, 1999.
PURCHASER:
Integrity Bank Organizing Group, L.L.P.
By:
------------------------------------
Xxxxx Xxxx, Managing Partner
As to Purchaser:
October 8, 1999.
ESCROW AGENT:
Perimeter Title Services, Inc.
---------------------------------------
As to Escrow Agent:
October __, 1999.
