STATE OF GEORGIA
COUNTY OF XXXXXX
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into this 31st day of
August, 1998, by and among XXXXX XXXXXXX, D.D.S., an individual
(herein called "Seller"); AMERICAN INTERNATIONAL BANKSHARES, INC., a
Georgia corporation (herein called "Buyer"); INTERNATIONAL EQUITY
ADVISORS GROUP, LLC, a Georgia limited liability company (herein
called "IEA"); and XXXXXXX XXXXXX & CO., a Georgia corporation (herein
called "Xxxxxx") (IEA and Xxxxxx are herein collectively called
"Brokers").
W I T N E S S E T H:
1. AGREEMENT TO SELL AND PURCHASE. For and in
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consideration of the Initial Xxxxxxx Money, to be paid by Buyer to
Escrow Agent, the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by Seller, Buyer and Brokers, Seller
hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase and take from Seller, subject to and in accordance with all
of the terms and conditions of this Agreement, the following:
(a) All that certain lot, tract or parcel of improved real
estate more particularly described on EXHIBIT "A" attached
hereto, together with all plants, shrubs and trees located
thereon, and together with all rights, ways and easements
appurtenant thereto, including, without limitation, all of
Seller's right, title and interest in and to the land underlying
and the air space overlying any public or private ways or streets
crossing or abutting said real estate (herein collectively called
the "LAND");
(b) All buildings, structures and other improvements of any
and every nature located on the Land and all fixtures attached or
affixed, actually or constructively, to the Land or to any such
buildings, structures or other improvements (herein collectively
called the "IMPROVEMENTS");
(c) All goods, equipment, machinery, apparatus, fittings,
furniture, furnishings, supplies, spare parts, tools and other
personal property of every kind located on the Land or within the
Improvements and used in connection with the operation,
management or maintenance of the Land or the Improvements,
excluding any such items owned by tenants of the Land or the
Improvements, but specifically including, without limitation, the
property described on EXHIBIT "B" attached hereto (herein
collectively called the "PERSONALTY");
(d) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in, to and under those service and other
contracts and agreements, if any, scheduled and identified on
EXHIBIT "C" attached hereto (herein called the "SERVICE
AGREEMENTS") of which Buyer elects to accept an assignment at
Closing (herein called the "ASSIGNED SERVICE AGREEMENTS");
(e) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in, to and under all guaranties,
warranties and agreements from all contractors, subcontractors,
vendors or suppliers regarding their performance, quality of
workmanship or quality of materials supplied in connection with
the construction, manufacture, development, installation, repair
or maintenance of the Improvements or the Personalty, or any
component thereof (herein called the "WARRANTIES");
(f) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in and to all certificates, licenses,
permits, authorizations, consents and approvals from governmental
authorities with respect to (i) the design, development,
construction and installation of the Improvements and the
Personalty and the performance of the Work, (ii) vehicular
ingress and egress to and from the Land, and (iii) the use,
operation and occupancy of the Improvements, including, without
limitation, the certificate of occupancy for the Improvements
(herein called the "PERMITS"); and
(g) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in and to (i) any impact fee credits with,
or impact fee payments to, any county or municipality in which
the Land is located arising from any construction of
improvements, or dedication or contribution of property, by
Seller, or its predecessor in title or interest, related to the
Land, (ii) any development rights, allocations of development
density or other similar rights allocated to or attributable to
the Land or the Improvements, and (iii) any utility capacity
allocated to or attributable to the Land or the Improvements,
whether the matters described in the preceding CLAUSES (i), (ii)
AND (iii) arise under or pursuant to governmental requirements,
administrative or formal action by governmental authorities, or
agreement with governmental authorities or third parties (herein
called the "ENTITLEMENTS").
The Land, the Improvements and the Personalty are herein sometimes
collectively called the "PROJECT"; and all of the matters described in
this PARAGRAPH 1 are herein sometimes collectively called the
"PROPERTY".
2. PURCHASE PRICE; METHOD OF PAYMENT. The purchase price
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for the Property (herein called the "PURCHASE PRICE"), shall be ONE
MILLION DOLLARS ($1,000,000.00). The Purchase Price shall be paid by
Buyer to Seller on the Closing Date as follows:
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(a) The Purchase Price, after crediting the Xxxxxxx Money
and the remaining money held in the Rent Subsidy Escrow Account,
and subject to the prorations and adjustments herein described,
shall be paid by Buyer to Seller either by: (i) a check drawn on
a local bank from the real estate escrow account of Xxxxxxxxxx
Xxxxxxxx, LLP, counsel for Buyer and closing attorneys; (ii) a
cashier's check of a national or state charter bank with its
principal offices in Atlanta, Georgia (or such other banking
institution as Seller may approve in writing); or (iii) by wire
delivery of funds through the Federal Reserve System to an
account designated in writing by Seller.
(b) Notwithstanding the foregoing, in the event that Seller
advises Buyer that Seller is a "Foreign Person" (as defined in
Section 1445 of the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder, herein called the
"CODE"), or in the event that Seller fails or refuses to deliver
the certificate and affidavit of non-foreign status described in
paragraph 9(a) of this Agreement, or in the event that Buyer
receives notice from any Seller-transferor's agent or Buyer-
transferee's agent (as each of such terms are defined in the
Code), or Buyer has actual knowledge that, such certificate and
affidavit is false, Buyer shall deduct and withhold from the
Purchase Price a tax equal to ten percent (10%) of the Purchase
Price, as required by Section 1445 of the Code. Buyer shall
remit such amount to, and file the required form with, the
Internal Revenue Service, and Buyer shall receive a credit
against the Purchase Price for the amount so withheld.
(e) Notwithstanding the foregoing, in the event that Seller
advises Buyer that Seller is a "nonresident" of the State of
Georgia, (as defined in O.C.G.A. Section 48-7-128(a)), is not otherwise
eligible for an exemption from the withholding requirements of
O.C.G.A. Section 48-7-128, or in the event that Seller fails or refuses
to deliver the affidavit of Seller's residence or a certificate
of Seller's exemption described in PARAGRAPH 9(a) of this
Agreement, or in the event that Buyer receives actual or
constructive notice that the Seller's affidavit is false or con-
tains erroneous information, Buyer shall deduct and withhold from
the Purchase Price a State of Georgia tax equal to three percent
(3%) of the Purchase Price, or, alternatively, three percent (3%)
of Seller's gain if documented in compliance with O.C.G.A. Section 48-
7-128. Buyer shall remit such amount to, and file the required
form with the Commissioner of the Georgia Department of Revenue,
and Buyer shall receive a credit against the Purchase Price for
the amount so withheld.
3. Xxxxxxx Money.
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(a) Within one business day (1) day after the Effective
Date, Buyer shall deliver to Xxxxxx, as escrow agent (in such
capacity, herein called "ESCROW AGENT"), the sum of FIFTEEN THOUSAND
AND NO/100 DOLLARS ($15,000.00) (which sum, together with all interest
actually earned thereon during the term of this Agreement, is herein
called the "INITIAL XXXXXXX MONEY"). If Buyer has not terminated this
Agreement prior to the Due Diligence Date in accordance with the terms
and provisions of paragraph 5(c) hereof, Buyer shall deliver to Escrow
Agent a check drawn upon good funds in the amount of TWENTY FOUR
THOUSAND AND 00/100 DOLLARS ($24,000.00) (which sum, together with all
interest actually earned thereon during the term of this Agreement, is
herein called the "ADDITIONAL XXXXXXX MONEY"). The Initial Xxxxxxx
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Money and the Additional Xxxxxxx Money are hereinafter collectively
called the "XXXXXXX MONEY". On the Closing Date, the Xxxxxxx Money
shall be applied as part payment of the Purchase Price (as hereinafter
defined).
(b) Until the Due Diligence Date, Escrow Agent shall hold
and disburse the Xxxxxxx Money in accordance with the terms and
conditions of this Agreement, including, without limitation, the terms
and conditions set forth on EXHIBIT "D" attached hereto, and shall
invest the Xxxxxxx Money with SunTrust Bank or a national bank whose
depositors are insured by the Federal Deposit Insurance Corporation or
other financial institutions located in Atlanta, Georgia as are
reasonably acceptable to Buyer.
(c) On the Closing Date, the Xxxxxxx Money will be applied
as part payment of the Purchase Price. In the event Buyer does not
exercise its option to terminate this Agreement pursuant to PARAGRAPH
5(c) of this Agreement, Escrow Agent shall pay over the Xxxxxxx Money
to the Seller on the day after the Due Diligence Date.
4. Closing.
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(a) The closing of the purchase and sale of the Property
(herein called "CLOSING"), shall be held at the offices of Xxxxxxxxxx
Xxxxxxxx, LLP, Suite 2800, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000-0000, at such time and on such date (herein called the "CLOSING
DATE"), as may be specified by written notice from Buyer to Seller not
less than TEN (10) DAYS prior thereto; PROVIDED, HOWEVER, that the
Closing Date shall be on or before the date TWO HUNDRED FORTY (240)
DAYS AFTER THE EFFECTIVE DATE (herein called the "FINAL CLOSING DATE")
and, if Buyer shall fail to give notice designating the Closing Date,
the Closing Date shall be, and the Closing shall take place at 10:00
A.M. on, the Final Closing Date. In the event Buyer specifies a date
earlier than the Final Closing Date as the Closing Date, Buyer may
thereafter postpone the Closing Date to a later date on or before the
Final Closing Date by written notice from Buyer to Seller on or before
the last date specified as the Closing Date.
(b) Notwithstanding the foregoing, Buyer may extend the
Final Closing Date for TWO (2) periods of thirty (30) days each
(herein called the "EXTENSION PERIODS") by delivering to Seller
written notice of each extension and a check drawn upon good funds in
the amount of EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00) for each
Extension Period, not later than FIVE (5) DAYS prior to the initial
Final Closing Date, or the first extended Final Closing Date, as the
case may be. Such additional amount or amounts paid to Seller by
Buyer shall be considered Rent Subsidy, pursuant to PARAGRAPH 14
below, which Rent Subsidy shall be non-refundable and shall not be
applied as part payment of the Purchase Price.
5. Access and Inspection; Delivery of Documents and In-
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formation by Seller; Examination by Buyer.
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(a) Between the date of this Agreement and the Closing
Date, Buyer and Buyer's agents and designees shall have the right to
enter the Project for the purposes of inspecting the Project,
conducting soil tests, and making surveys, mechanical and structural
engineering studies, environmental assessments, and any other
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investigations and inspections as Buyer may reasonably require to
assess the condition of the Project; PROVIDED, HOWEVER, that such
activities by or on behalf of Buyer on the Property shall not
materially damage the Property; and PROVIDED FURTHER, HOWEVER, that
Buyer shall indemnify and hold Seller harmless from and against any
and all claims for injury to person or damage to property, to the
extent resulting from the activities of Buyer or Buyer's agents or
designees on the Property, EXCLUDING, HOWEVER, claims arising out of
the discovery of, or the non-negligent accidental or inadvertent
release of, any Pollutants resulting from Buyer's investigations
(unless the Pollutants are brought onto the Project by Buyer or
Buyer's agents, employees, consultants or contractors).
(b) On or before the date THREE (3) DAYS AFTER THE
EFFECTIVE DATE, Seller shall deliver to Buyer, if not previously
delivered, or make available to Buyer for examination or copying by
Buyer, at the address for Buyer set forth below Buyer's execution of
this Agreement, the following documents and information with respect
to the Property (to the extent such items are in the possession or
under the control of Seller or Seller's family, agents or employees):
(i) All appraisals, surveys, plans, specifications,
environmental, engineering and mechanical data relating to the
Project, including such items relating to tenant improvements,
and reports such as soils reports and environmental audits, which
are in Seller's possession;
(ii) All real property and other ad valorem tax bills and
utility bills regarding the Project for the two-year period
preceding the date of this Agreement;
(iii) True, correct and complete copies of the Service
Agreements;
(iv) True, correct and complete copies of the Warranties;
(v) True, correct and complete copies of the Permits;
(vi) True, correct and complete copies of all documents and
correspondence relating to the Entitlements;
(vii) A full, correct and complete list and identifying
description of all of the Personalty;
(viii) True, correct and complete copies of all policies
of insurance carried by Seller with respect to the Property,
together with evidence of the premiums paid by Seller therefor;
and
(ix) A copy of any policy of title insurance issued in favor
of Seller.
(c) Buyer shall have until SIXTY (60) DAYS AFTER THE
EFFECTIVE DATE (herein called the "DUE DILIGENCE DATE") in which to
examine and investigate the Property, and to determine whether the
Property is suitable and satisfactory to Buyer and whether the
Property can be operated in a manner that is economically feasible and
otherwise suitable and satisfactory to Buyer. In the event that Buyer
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shall determine, in Buyer's sole and absolute judgment and discretion,
that the Property is in any manner unsuitable or unsatisfactory to
Buyer or cannot be operated in a manner that is economically feasible
and otherwise suitable and satisfactory to Buyer, Buyer shall have the
right, at Buyer's option, to terminate this Agreement by giving
written notice thereof to Seller on or before the DUE DILIGENCE DATE,
in which event ONE HUNDRED DOLLARS ($100.00) of the Xxxxxxx Money
shall be delivered to Seller as consideration for Seller's execution
of and entry into this Agreement, the balance of the Xxxxxxx Money
shall be refunded to Buyer immediately upon request, all rights and
obligations of the parties under this Agreement shall expire, and this
Agreement shall terminate. Seller acknowledges that Buyer will expend
time, money and other resources in connection with the examination and
investigation of the Property hereinabove described, and that,
notwithstanding the fact that Buyer may terminate this Agreement
pursuant to this paragraph, such time, money and other resources
expended, together with the payment of the portion of the Xxxxxxx
Money hereinabove described to be paid to Seller in the event of a
termination of this Agreement, constitute good, valuable, sufficient
and adequate consideration for Seller's execution of and entry into
this Agreement. If Buyer gives Escrow Agent notice of Buyer's having
elected to terminate this Agreement pursuant to this SUBPARAGRAPH (c),
then: (i) Escrow Agent shall be, and is hereby, absolutely,
unconditionally and irrevocably authorized, directed and instructed to
disburse the Xxxxxxx Money as set forth in this SUBPARAGRAPH (c)
immediately upon receipt of a copy of such notice, without any inquiry
as to the propriety, effectiveness or timeliness of such termination
and without the requirement of any further authorization, direction or
instruction from either Seller or Buyer; and (ii) Seller covenants and
agrees not to delay, hinder or impede in any manner whatsoever the
disbursement of the Xxxxxxx Money as set forth in this SUBPARAGRAPH (c).
6. Prorations and Adjustments to Purchase Price.
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(a) The following prorations and adjustments shall be made
between Buyer and Seller at Closing, or thereafter if Buyer and Seller
shall agree:
(i) All city, state and county ad valorem taxes and similar
impositions levied or imposed upon or assessed against the
Property (herein called the "TAXES"), for the year in which
Closing occurs shall be prorated as of the Closing Date. If the
amount of such Taxes is undetermined on the Closing Date, the
proration shall be based upon estimated taxes computed by
multiplying the most recent applicable assessment by the most
recent applicable tax rate. In the event Seller has paid only a
portion of the Taxes billed for the year in which Closing occurs
due to the pendency of a protest of such Taxes, then, in
connection with Closing, Seller shall deposit with Escrow Agent
an amount equal to Seller's pro rata share of the resulting
underpayment. Any such deposit with Escrow Agent shall be held
in escrow by Escrow Agent pending final resolution of such
protest, pursuant to escrow instructions reasonably acceptable in
form and substance to Buyer, Seller, Escrow Agent and their
respective counsel. In the event that, after the Closing Date,
any additional Taxes are levied, imposed upon or assessed against
the Property for periods prior to the Closing Date, Buyer shall
give Seller written notice of such Taxes, and Seller shall be
responsible for payment of such additional Taxes in full, subject
to any credit allocated to Seller pursuant to CLAUSE (ii), below,
within the time fixed for payment thereof and before the same
become delinquent. Without limiting the obligations of Seller
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pursuant to the immediately preceding sentence, Seller shall, and
does hereby, indemnify, defend and hold harmless Buyer from and
against any such additional Taxes (including all interest and
penalties assessed or imposed in connection therewith) relating
to periods prior to the Closing Date.
(ii) Seller shall receive a credit in the amount of one half
(1/2) of the Taxes paid by Seller levied or imposed upon or
assessed against the Property allocable to the period between the
Due Diligence Date and the Closing Date.
(iii) Buyer shall receive a credit in the amount of Rent
Subsidy paid (excluding any Rent Subsidy paid during any
Extension Period) and all funds held in the Rent Subsidy Escrow
Account as of the Closing Date, and Buyer shall transfer and
assign to Seller all of Buyer's right, title and interest in and
to the Rent Subsidy Escrow Account at Closing.
(iv) All utility charges for the Project (including, without
limitation, telephone, water, storm and sanitary sewer,
electricity, gas, garbage and waste removal) shall be prorated as
of the Closing Date, transfer fees required with respect to any
such utility shall be paid by or charged to Buyer, and Seller
shall be credited with any deposits transferred to the account of
Buyer; PROVIDED, HOWEVER, that at either party's election any one
or more of such utility accounts shall be closed as of the
Closing Date, in which event Seller shall be liable and
responsible for all charges for service through the Closing Date
and shall be entitled to all deposits theretofore made by Seller
with respect to such utility, and Buyer shall be responsible for
reopening and reinstituting such service in Buyer's name, and
shall be responsible for any fees, charges and deposits required
in connection with such new account.
(v) All amounts payable under any of the Assigned Service
Agreements shall be prorated as of the Closing Date; PROVIDED,
HOWEVER, that there shall be no proration of (x) Seller's
insurance premiums for the Project, or (y) matters pertaining to
Seller's employees shall be governed by the provisions of
SUBPARAGRAPH (b), below.
(vi) Any other items which are customarily prorated in
connection with the purchase and sale of properties similar to
the Property shall be prorated as of the Closing Date.
In the event that the amount of any item to be prorated is not
determinable at the time of Closing, except as otherwise provided
herein, such proration shall be made on the basis of the best
available information, and the parties shall re-prorate such item
promptly upon receipt of the applicable bills therefor and shall make
between themselves any equitable adjustment required by reason of any
difference between the estimated amount used as a basis for the
proration at Closing and the actual amount subject to proration. In
the event any prorated item is due and payable at the time of Closing,
the same shall be paid at Closing. If any prorated item is not paid
at Closing, Seller shall deliver to Buyer the bills therefor promptly
upon receipt thereof and Buyer shall be responsible for the payment in
full thereof within the time fixed for payment thereof and before the
same shall become delinquent. In making the prorations required by
this paragraph, the economic burdens and benefits of ownership of the
Property for the Closing Date shall be allocated to Buyer.
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(b) Except as expressly set forth in this Agreement, Buyer
shall not assume any liability, indebtedness, duty or obligation of
Seller of any kind or nature whatsoever, and Seller shall pay, satisfy
and perform all of the same.
7. Title.
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(a) Seller covenants to convey to Buyer at Closing good and
marketable fee simple title in and to the Property. For the purposes
of this Agreement, "GOOD AND MARKETABLE FEE SIMPLE TITLE" shall mean
fee simple ownership which is: (i) free of all claims, liens and
encumbrances of any kind or nature whatsoever other than the Permitted
Exceptions, herein defined; and (ii) insurable by a title insurance
company reasonably acceptable to Buyer, at then current standard rates
under the standard form of ALTA owner's policy of title insurance
(ALTA Form B-1992), with the standard or printed exceptions therein
deleted (but the deletion of the standard survey exception is subject
to Buyer's obtaining a survey of the Property acceptable to said title
insurance company) and without exception other than for the Permitted
Exceptions. For the purposes of this Agreement, the term "PERMITTED
EXCEPTIONS" shall mean: (A) current city, state and county ad valorem
taxes not yet due and payable; (B) easements for the installation or
maintenance of public utilities serving only the Property; and (C) any
other matters specified on EXHIBIT "E" attached hereto.
(b) Buyer shall have until the DUE DILIGENCE DATE in which
to examine title to the Property and in which to give Seller written
notice of objections which render Seller's title less than good and
marketable fee simple title. Thereafter, Buyer shall have until the
Closing Date in which to re-examine title to the Property and in which
to give Seller written notice of any additional objections disclosed
by such reexamination. Seller shall have until TEN (10) DAYS prior to
the Closing Date in which to satisfy all objections specified in
Buyer's initial notice of title objections, or agree to satisfy any
such objections that can only be satisfied at Closing, and until the
Closing Date in which to satisfy all objections specified in any
subsequent notice by Buyer of title objections. If Seller fails so to
satisfy any such objections, then, at the option of Buyer, Buyer may:
(i) terminate this Agreement, in which event the Xxxxxxx Money and the
balance in Rent Subsidy Escrow Account shall be refunded to Buyer
immediately upon request, all rights and obligations of Seller and
Buyer under this Agreement shall expire, and this Agreement shall
terminate; or (ii) if any such objection is based upon a deed to
secure debt, deed of trust, mortgage, judgment, lien or other
liquidated monetary claim, satisfy the objection, after deducting from
the Purchase Price the cost of satisfying objection; or (iii) waive
such satisfaction and performance and consummate the purchase and sale
of the Property, or (iv) if any such objection is of the type
described in clause (ii), above, or is an objection that arises after
the Effective Date, exercise such rights and remedies as may be provided for
in PARAGRAPH 15 hereof in the event of a breach or default by Seller.
8. Survey. Buyer shall have the right to cause an as-
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built survey of the Property to be prepared by a surveyor registered
and licensed in the State of Georgia and designated by Buyer, which
survey shall depict such information as Buyer shall require. Upon
completion of a plat of the survey, Buyer shall furnish Seller with a
copy thereof. Seller's conveyance of the Property to Buyer at Closing
shall be in accordance with the description attached to this Agreement
as EXHIBIT "A". Upon request by Buyer, Seller shall also convey the
Property to Buyer by Quitclaim Deed in accordance with the legal description
prepared from the survey of the Land to be obtained pursuant to this Agreement.
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9. Proceedings at Closing. On the Closing Date, the
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Closing shall take place as follows:
(a) Seller shall deliver to Buyer the following documents
and instruments, duly executed by or on behalf of Seller:
(i) a Limited Warranty Deed, in recordable form, in
the form of, and on the terms and conditions set forth in,
that attached hereto as EXHIBIT "F", conveying the Land and
the Improvements;
(ii) a Xxxx of Sale with limited warranty of title, in
the form of, and on the terms and conditions set forth in,
that attached hereto as EXHIBIT "G", conveying the
Personalty;
(iii) an Assignment, in the form of, and on the
terms and conditions set forth in, that attached hereto as
EXHIBIT "H", transferring and assigning the Assigned Service
Agreements, the Warranties, the Permits, the Impact Fee
Credits;
(iv) a Seller's Affidavit, in the form of, and on the
terms and conditions set forth in, that attached hereto as
EXHIBIT "I", with respect to the Property;
(v) if Seller is not a Foreign Person, a Certificate
and Affidavit of Non-Foreign Status, in the form of, and on
the terms and conditions set forth in, that attached hereto
as EXHIBIT "J";
(vi) a Certificate and Affidavit as to whether (A)
Seller is a resident of the State of Georgia (as defined in
O.C.G.A. Section 48-7-128(a), or (B) Seller is deemed to be a
resident of the State of Georgia pursuant to O.C.G.A. Section 48-
7-128, or (C) the sale of the Property by Seller is
otherwise exempt from the withholding requirements of
O.C.G.A. Section 48-7-128, in the form of, and on the terms and
conditions set forth in that attached hereto as EXHIBIT "K";
(vii) a completed 1099-S request for taxpayer
identification number and certification, and acknowledgment,
in the form of that attached hereto as EXHIBIT "L";
(viii) a certificate, in form and substance
satisfactory to counsel for Buyer, to the effect that the
representations and warranties of Seller in this Agreement
are true and correct in all material respects on and as of
the Closing Date; and
(ix) upon Buyer's request, a quitclaim deed conveying
all of Seller's right, title and interest in and to the
Property in accordance with the legal description prepared
from the survey of the Land to be obtained pursuant to this
Agreement.
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(b) Seller shall deliver to Buyer the following items
(to the extent such items are in the possession or under the
control of Seller or Seller's family, agents or employees), if
the same have not been theretofore delivered by Seller to Buyer:
(i) The originals of the Permits;
(ii) The originals of all books, records, correspon-
dence, memoranda, reports and other information and data
pertinent to the continued use, occupancy and operation of
the Property, including, without limitation, all records,
information and data relevant to income and operating
expenses for the Property;
(iii) A certificate from a licensed exterminating
company addressed to and in favor of Buyer, dated within
THIRTY (30) DAYS prior to the Closing Date, certifying that
there is no evidence of infestation by termites or any other
insect or wood-destroying organism affecting the
Improvements and no evidence of any damage caused by any
existing or prior infestation, or, if such certificate
indicates any such infestation or damage, then Seller shall,
in the sole discretion of Buyer, either promptly correct and
repair the same or pay to Buyer, by credit to Buyer at
Closing, the reasonable cost of such correction and repair;
and
(iv) To the extent the same are in the possession of
Seller on the date of Seller's execution of this Agreement,
or reasonably can be obtained by Seller prior to Closing, a
copy of all prior surveys of the Land or any portion thereof
and all plans and specifications for any of the
Improvements.
(c) Buyer shall pay the remainder of the Purchase
Price, after crediting the Xxxxxxx Money and making the
adjustments and prorations provided for in this Agreement, to
Seller in accordance with the provisions of this Agreement.
10. Costs of Closing. Seller shall pay ONE THOUSAND AND
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00/100 ($1,000.00) of the State of Georgia Realty Transfer Tax payable
on the transfer of the Project, all recording costs and other costs
relating to any title clearance matters and Seller's attorneys' fees.
Buyer shall pay all recording costs relating to the purchase by Buyer
of the Property, the cost of any survey obtained pursuant to PARAGRAPH
8 hereof, the premium for any owner's policy of title insurance issued
in favor of Buyer insuring Buyer's title to the Property, Buyer's
attorneys' fees and any additional State of Georgia Realty Transfer
Tax. All other costs and expenses of the transaction contemplated
hereby shall be borne by the party incurring the same.
11. Warranties, Representations and Additional Covenants of Seller.
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Seller represents, warrants and covenants to and with Buyer,
knowing that Buyer is relying on each such representation, warranty
and covenant, that:
(a) Seller has the lawful right, power, authority and
capacity to sell the Property in accordance with the terms,
provisions and conditions of this Agreement.
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(b) There are no actions, suits or proceedings pending or
threatened against, by or affecting Seller which affect title to
the Property or which question the validity or enforceability of
this Agreement or of any action taken by Seller under this
Agreement, in any court or before any governmental authority,
domestic or foreign.
(c) The execution of and entry into this Agreement, the
execution and delivery of the documents and instruments to be
executed and delivered by Seller on the Closing Date, and the
performance by Seller of Seller's duties and obligations under
this Agreement and of all other acts necessary and appropriate
for the full consummation of the purchase and sale of the
Property as contemplated by and provided for in this Agreement,
are consistent with and not in violation of, and will not create
any adverse condition under, any contract, agreement or other
instrument to which Seller is a party or any judicial order or
judgment of any nature by which Seller is bound, and this
Agreement, and the covenants and agreements of Seller under this
Agreement, are the valid and binding obligations of Seller,
enforceable in accordance with their terms.
(d) Seller has "good and marketable fee simple title" as
defined herein, to the Project, subject to the liens and security
interests securing loans to Seller that will be paid in full,
satisfied and canceled at Closing; and, without limiting the
generality of the foregoing, Seller owns all of the Personalty
and none of the Personalty is leased.
(e) On the Closing Date, either: (A) there will be no
indebtedness to any contractor, laborer, mechanic, materialman,
architect, engineer or any other person for work, labor or
services performed or rendered, or for materials supplied or
furnished, in connection with the Property for which any such
person could claim a lien against the Property; or (B) Seller
will provide at Closing such assurances, and collateral therefor,
as Buyer's title insurer requires to insure Buyer's title to the
Project without exception therefor.
(f) To the best of Seller's knowledge, except as shown on
the survey described in EXHIBIT "E" attached hereto, there are no
encroachments on the Land, and the Improvements are situated
entirely within the boundaries of the Land and within applicable
building lines.
(g) Seller will pay or cause to be paid promptly when due
all city, state and county ad valorem taxes and similar taxes and
assessments, all sewer and water charges and all other
governmental charges levied or imposed upon or assessed against
the Property between the date hereof and the Closing Date, and
will pay or cause to be paid all expenses incurred in the use,
occupancy and operation of the Property between the date hereof
and the Closing Date.
(h) To the best of Seller's knowledge, no portion of the
Land is located within any Special Flood Hazard Area designated
by the Federal Emergency Management Agency, or in any area
similarly designated by any agency of any other governmental
authority; no portion of the Land meets the definition of
"wetlands" codified at 40 C.F.R. part 230.3(t), or has been
similarly designated by any agency of any governmental authority;
and no portion of the Land constitutes "wetlands" that have been
filled, whether or not pursuant to appropriate permits.
11
(i) To the best of Seller's knowledge, no portion of the
Land is subject to any other classification, designation or
preliminary determination of any agency of any federal, state or
local government, or pursuant to any federal, state or local law,
which would restrict the use, development, occupancy or operation
of the Property, including, without limitation, any designation
or classification as an archeological site, any classification or
determination under the Endangered Species Act, or any
designation as an historical site.
(j) To the best of Seller's knowledge, the Project is not
subject to any use, development or occupancy restrictions (except
those imposed by applicable zoning and subdivision laws and
regulations), special taxes and assessments or utility "tap-in"
fees (except those generally applicable throughout the tax
district in which the Project is located), or charges or
restrictions, whether existing of record or arising by operation
of law, unrecorded agreement, the passage of time or otherwise
(other than the Permitted Exceptions).
(k) No portion of the Project is used or, during the
period of Seller's ownership of the Project, has been used
by Seller or Seller's employees, agents or contractors, or
any party acting by, through or under Seller, for the
storage, processing, treatment or disposal of Pollutants; to
the best of Seller's knowledge, no portion of the Project
has been used for the storage, processing, treatment or
disposal of Pollutants prior to the period of Seller's
ownership of the Project; no Pollutants have been placed in
the Improvements during the period of Seller's ownership of
the Project by Seller or Seller's employees, agents or
contractors, or any party acting by, through or under
Seller; to the best of Seller's knowledge, the Improvements
do not contain, nor have they ever contained, Pollutants; no
Pollutants have been released, introduced, spilled,
discharged or disposed of, nor has there been a threat of
release, introduction, spill, discharge or disposal of a
Pollutant, on, in, or under the Project during the period of
Seller's ownership of the Project by Seller or Seller's
employees, agents or contractors, or any party acting by,
through or under Seller or, to the best of Seller's
knowledge, anytime prior thereto; to the best of Seller's
knowledge, there are no pending claims, administrative
proceedings, judgments, declarations, or orders, whether
actual or threatened, relating to the presence of Pollutants
on, in or under the Project; to the best of Seller's
knowledge, the Project is in compliance with all federal,
state and local laws, regulations, orders and requirements
regarding the regulation of Pollutants; to the best of
Seller's knowledge, no Pollutants have been released,
introduced, spilled, discharged or disposed of on, in or
under any adjacent property; and, to the best of Seller's
knowledge, there are no underground storage tanks located on
or in the Project. As used in this Agreement, "POLLUTANTS"
means any material or substance, or combination of materials
or substances, which by reason of quantity, concentration,
composition, or characteristic is regulated under any
federal, state or local environmental or common law, rule,
regulation, ordinance or requirement, as may be amended,
replaced or superseded, and shall include, without
limitation: (i) any hazardous substance as defined by the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C.A. Section 9601 et seq.; (ii) any
hazardous substance, constituent or waste as defined by the
Georgia Hazardous Site Response Act, O.C.G.A. Section 12-8-90 et
seq.; (iii) any material identified as a hazardous waste
under the Solid Waste Disposal Act, as amended by the
12
Resource Conservation and Recovery Act, 42 U.S.C.A. Section 6901
et seq.; (iv) any solid or hazardous waste identified under
the Georgia Comprehensive Solid Waste Management Act,
O.C.G.A. Section 21-8-20 et seq., and the Georgia Hazardous Waste
Management Act, O.C.G.A. Section 12-8-60 et seq.; (v) any material
regulated as a Toxic pollutant as defined under the Federal
Water Pollution Control Act, 33 U.S.C.A. Section 1251 et seq.;
(vi) any hazardous substance or toxic pollutant as defined
under the Federal Water Pollution Control Act, 33 U.S.C.A. Section
1251 et seq.; (vii) any hazardous substance as defined by
the Oil Pollution Act, 33 U.S.C.A. Section 2701 et seq., the
Georgia Oil Hazardous Material Spills or Releases Act,
O.C.G.A. Section 12-14-1 et seq., the Georgia Water Quality
Control Act, O.C.G.A. Section 12-5-20 et seq. or the Georgia
Underground Storage Tank Act, O.C.G.A. Section 12-13-1 et seq.;
(viii) any hazardous air pollutant as defined under the
Federal Clean Air Act, 42 U.S.C.A. Section 7401 et seq. and the
Georgia Air Quality Act, O.C.G.A. Section 12-9-1 et seq.; (ix) any
substance regulated under the Federal Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C.A. Section 135 et seq.; (x) a special
nuclear or byproduct material within the meaning of the
Atomic Energy Act, 42 U.S.C.A. Section 2014 et seq.; and (xi) any
material or substance, or combination of materials or
substances displaying any explosive, volatile, radioactive,
toxic, corrosive, flammable, ignitable or reactive
characteristic or which may cause a nuisance, injury, harm
or degradation to human health, welfare or the environment.
Notwithstanding anything contained herein to the contrary,
Seller shall not be deemed to be in breach of this
subparagraph (k) by reason of the presence on the Project of
Pollutants, the prior use of Pollutants on the Project, or
the storage on the Project of Pollutants, if such Pollutants
are substances and materials commonly used in the operation,
maintenance or repair of properties similar to the Project
and stored and/or used in accordance with all applicable
laws, regulations, and ordinances.
(l) Seller has received no notice of any violations or
potential violation of any, zoning, building, health,
environmental or other laws, codes, ordinances, regulations,
orders or requirements of any city, county, state or other
governmental authority having jurisdiction thereof, or any
private restrictive covenants affecting the Project; and all
certificates, licenses, permits, authorizations, consents and
approvals required by any such governmental authority for the
continued use, occupancy and operation of the Project have been
obtained, are paid for, and are free of restrictions.
(m) Seller has not received any written notice of, nor does
Seller have any actual knowledge of, any pending or threatened
condemnation actions involving all or any portion of the Project
or any interest therein; and, to the best of Seller's knowledge
and belief, there are no existing, proposed or contemplated plans
to widen, modify or realign any public rights-of-way located
adjacent to any portion of the Land.
(n) To the best of Seller's knowledge, all utilities
(including, without limitation, water, storm and sanitary sewer,
electricity, gas and telephone) are available on the Land through
private easements or properly dedicated public easements in
capacities sufficient to serve and operate the Project.
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(o) Except as provided in the Permitted Exceptions, to the
best of Seller's knowledge, access to the Land from streets and
roads adjoining the Land is not limited or restricted.
(p) There are no management, maintenance, service or other
contracts with respect to the Property other than the Service
Agreements; and all of the Service Agreements can be canceled on
THIRTY (30) days notice or less; the Service Agreements are
presently in full force and effect, under the Franchise
Agreementhave not been modified, supplemented or amended, and, if
in writing, are the entire agreement between Seller and the other
parties thereto; Seller has fully and completely paid and
performed all of the duties, obligations, liabilities and
responsibilities of the owner of the Property under the Service
Agreements arising on or before the date hereof; and, as of the
Closing Date, there will be no management, maintenance, service
or other contracts with respect to the Property other than the
Assigned Service Agreements.
(q) To the best of Seller's knowledge (i) the Improvements
are in good order and repair, and in a good, safe, substantial
condition, free from defects, (ii) all plumbing, heating,
electrical and air conditioning systems and equipment and systems
therein are in good order and repair and operating condition
(iii) all electrical, plumbing, heating and air-conditioning and
exterior drainage systems, in or on the Project are in good
condition and working order, (iv) there is no termite or other
pest infestation, dry-rot or similar damage affecting the
Property (v) the Improvements are water-tight and (vi) there is
no subsidence or other soil condition that does or may in the
future adversely affect the Project.
(r) To the best of Seller's knowledge, the Personalty is in
good order, condition and repair.
(s) Between the date hereof and the Closing Date, Seller:
(i) shall continue to carry and maintain in force all existing
policies of casualty and public liability insurance with respect
to the Project; and (ii) shall not make or enter into any lease
or other agreement for the use, occupancy or possession of all or
any part of the Project without the prior written approval of
Buyer; there are no leases, occupancy agreements or other similar
agreements with respect to the Project except for the Lease
Agreement between Seller and PRIVE INC., a copy of which is
attached hereto as EXHIBIT "M".
(t) All information and data furnished by Seller to Buyer
with respect to the Property will be true, correct, complete and
not misleading in any material respect.
(u) Seller will not cause or permit any action to be taken
which will cause any of the foregoing representations, warranties
or covenants to be untrue or unperformed on the Closing Date in
any material respect; and Seller will not cause or permit any
action to be taken which will cause any of the conditions of
Buyer's obligations set forth in PARAGRAPH 13, below, to be
unsatisfied or unperformed on or as of the Closing Date.
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(v) Seller will deliver on the Closing Date all documents
and instruments required by this Agreement and perform all acts
necessary or appropriate for the consummation of the purchase and
sale of the Property as contemplated by and provided for in this
Agreement.
Seller acknowledges and agrees that no examination or investigation of
the Property or of the operation of the Property by or on behalf of
Buyer prior to Closing shall in any way modify, affect or diminish
Seller's obligations under the representations, warranties, covenants
and agreements set forth in this Agreement.
12. Disclaimer. Except as expressly set forth herein and
----------
except as may be set forth in any documentation executed and delivered
at Closing, Seller hereby specifically disclaims any representation or
warranty, express or implied, including, without limitation, those
concerning (a) the nature and condition of the Property and the
suitability of the Property for any and all activities and uses which
Buyer may elect to conduct thereon, (b) the manner, construction,
condition and state of repair or lack of repair of any improvements
located on, or comprising, the Property or any part thereof, and
(c) the compliance of the Property or its operation with any laws,
rules, ordinances or regulations of any government or other body,
including, but not limited to, the Americans with Disability Act and
other laws regarding access for handicapped persons, it being
understood that Buyer shall have full opportunity prior to the Due
Diligence Date to determine for itself the condition of the Property.
The sale of the Property is made on an "AS IS" AND "WHERE IS" basis,
and Buyer expressly acknowledges that, in consideration of the
agreements of Seller herein, except as otherwise expressly set forth
herein and except as may expressly be set forth in any documentation
executed and delivered at Closing, SELLER HAS NOT MADE, AND DOES NOT
MAKE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING
BY OPERATION OF LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROJECT, ANY
IMPROVEMENTS, ANY PERSONAL PROPERTY, SOIL CONDITIONS OR THE PRESENCE
OR RELEASE OF HAZARDOUS MATERIALS.
13. Conditions of Buyer's Obligations.
---------------------------------
(a) Buyer's obligation to consummate the purchase and sale
of the Property on the Closing Date shall be subject to the
satisfaction or performance of the following terms and conditions, any
one or more of which may be waived in writing by Buyer, in whole or in
part, on or as of the Closing Date:
(i) Seller shall have fully and completely kept, observed,
performed, satisfied and complied in all material respects with
all terms, covenants, conditions, agreements, requirements,
restrictions and provisions required by this Agreement to be
kept, observed, performed, satisfied or complied with by Seller
before, on or as of the Closing Date;
(ii) The representations and warranties of Seller in this
Agreement (and the substantive facts contained in any
representations and warranties limited to Seller's knowledge and
belief) shall be true and correct in all material respects on and
as of the Closing Date, in the same manner and with the same
15
effect as though such representations and warranties had been
made on and as of the Closing Date;
(iii) Buyer shall not have terminated this Agreement
pursuant to an express right so to terminate set forth in this
Agreement;
If any of the foregoing conditions have not been satisfied or
performed or waived in writing by Buyer on or as of the Closing Date,
Buyer shall have the right, at Buyer's option, either: (i) to
terminate this Agreement by giving written notice to Seller on or
before the Closing Date, in which event all rights and obligations of
Seller and Buyer under this Agreement shall expire, and this Agreement
shall terminate; or (ii) if such failure of condition constitutes a
breach of representation or warranty by Seller, constitutes a failure
by Seller to perform any of the terms, covenants, conditions,
agreements, requirements, restrictions or provisions of this
Agreement, or otherwise constitutes a default by Seller under this
Agreement, to exercise such rights and remedies as may be provided for
in paragraph 15 of this Agreement. In either of such events, the
Xxxxxxx Money and the remaining money held in the Rent Subsidy Escrow
Account shall be refunded to Buyer immediately upon request free and
clear from all claims of Seller.
(b) Buyer's obligation to consummate the purchase and sale
of the Property on the Closing Date shall be subject to Buyer's having
obtained from the appropriate governmental authorities (i) a Charter
for the operation of a bank by Buyer, and (ii) approval of the Project
as a location for banking operations. If Buyer has not terminated
this Agreement prior to the Due Diligence Date in accordance with the
terms and provisions of PARAGRAPH 5(c) hereof, Buyer shall file an
application for its Charter with the appropriate authorities within
FOURTEEN (14) DAYS after the Due Diligence Date, shall certify in
writing to Seller that said application has been filed, shall pay the
Charter application fee, and shall pursue the approval of such
application diligently and in good faith in such manner as shall
reasonably be determined by Buyer in Buyer's sole discretion. In the
event either (i) the foregoing conditions are not satisfied on or as
of the Closing Date, or (ii) Buyer determines, in its sole discretion
for any reason at any time prior to the Closing Date, that it will not
succeed in obtaining its Charter, Buyer may, at any time on or before
the Closing Date, by written notice to Seller, terminate this
Agreement, in which event (i) the Additional Xxxxxxx Money and the
remaining money held in the Rent Subsidy Escrow Account shall be
refunded to Buyer immediately upon request, (ii) all rights and
obligations of the parties under this Agreement shall expire, and this
Agreement shall terminate, and (iii) Seller shall retain the Initial
Xxxxxxx Money and the amounts theretofore paid from the Rent Subsidy
Escrow Account free and clear from all claims of Buyer.
14. Possession.
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(a) Seller shall surrender possession of the Property to
Buyer on the Closing Date.
(b) Buyer shall pay to Seller payments in lieu of rent that
Seller would otherwise be able to obtain for the Property (herein
called the "RENT SUBSIDY") in the amounts of (i) $6,000.00 per month
for the period commencing on the first date following the Due
Diligence Date until the initial Final Closing Date specified in
SUBPARAGRAPH 4(a), and (ii) $8,500.00 per month for the months during
16
any Extension Period (herein called the "RENTAL PERIOD"). Buyer shall
pay the Rent Subsidy for the first six (6) months of the Rental Period
(i.e. for the period between the Due Diligence Date and the initial
Final Closing Date specified in SUBPARAGRAPH 4(a), above) in advance
on the first day following the Due Diligence Date by delivering to the
Escrow Agent the sum of $36,000.00 (which sum, together with all
interest actually earned thereon during the term of this Agreement, is
herein called the "RENT SUBSIDY ESCROW ACCOUNT"). Rent Subsidy for
the Extension Period shall be paid as provided in PARAGRAPH 4(b),
above.
(c) Throughout the Rental Period, Escrow Agent shall hold
and disburse the Rent Subsidy Escrow Account in accordance with the
terms and conditions of this Agreement, including, without limitation,
the terms and conditions set forth on EXHIBIT "D" attached hereto, and
shall invest the Rent Subsidy Escrow Account with SunTrust Bank or a
national bank whose depositors are insured by the Federal Deposit
Insurance Corporation or other financial institutions located in
Atlanta, Georgia as are reasonably acceptable to Buyer. Escrow Agent
shall pay the Rent Subsidy from the Rent Subsidy Escrow Account to
Seller on behalf of Buyer monthly in the amount of $6,000.00 per month
on the day following the Due Diligence Date, and on the same day of
each month thereafter until the earlier of the initial Final Closing
Date , or the date of termination of this Agreement. Rent Subsidy
paid pursuant to this PARAGRAPH 14 from the Rent Subsidy Escrow
Account for the first six (6) months of the Rental Period shall be
applied as part payment of the Purchase Price at Closing. If this
Agreement is terminated by Buyer prior to Closing, the Rent Subsidy
theretofore actually paid from the Rent Subsidy Escrow Account shall
be nonrefundable and all amounts remaining in the Rent Subsidy Escrow
Account shall be refunded to Buyer. If Buyer gives Escrow Agent
notice of Buyer's having elected to terminate this Agreement pursuant
to PARAGRAPH 13(b), then: (i) Escrow Agent shall be, and is hereby,
absolutely, unconditionally and irrevocably authorized, directed and
instructed to disburse the Rent Subsidy Escrow Account as set forth in
this SUBPARAGRAPH (c) immediately upon receipt of a copy of such
notice, without any inquiry as to the propriety, effectiveness or
timeliness of such termination and without the requirement of any
further authorization, direction or instruction from either Seller or
Buyer; and (ii) Seller covenants and agrees not to delay, hinder or
impede in any manner whatsoever the disbursement of the Rent Subsidy
Escrow Account as set forth in this SUBPARAGRAPH (c).
(d) The payment of the Rent Subsidy shall not cause Buyer
to be deemed to be in possession of the Project prior to Closing.
Seller shall remain in possession of the Project until Closing. For
the period between the Effective Date and the Closing Date, Seller
shall operate and maintain the Property in the ordinary course of
business, shall maintain all utilities (including, without limitation,
telephone, water, storm and sanitary sewer, electricity, air
conditioning, gas, garbage and waste removal) and Service Agreements
as currently operated, and shall maintain and repair the Project so
that, throughout the term of this Agreement and on the Closing Date,
the Project will be in the same condition as it now exists, natural
wear and tear and loss by insured casualty alone excepted. Seller
shall be responsible for all expenses relating to the operation and
maintenance of the Project prior to the Closing Date. Seller shall be
entitled to any operating income from the Property prior to the
Closing Date, excluding any income from Buyer's activities.
15. Remedies.
--------
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(a) If the purchase and sale of the Property is not
consummated in accordance with the terms and conditions of this
Agreement due to circumstances or conditions which constitute a
default by Buyer under this Agreement, the Xxxxxxx Money shall be
delivered to Seller which, together with the amounts paid from the
Rent Subsidy Escrow Account prior to such default, shall serve as full
liquidated damages for such default. Seller and Buyer acknowledge
that Seller's actual damages in the event of a default by Buyer under
this Agreement will be difficult to ascertain, that such liquidated
damages represent the Seller's and Buyer's best estimate of such
damages, and that Seller and Buyer believe such liquidated damages are
a reasonable estimate of such damages. Seller and Buyer expressly
acknowledge that the foregoing liquidated damages are intended not as
a penalty, but as full liquidated damages, as permitted by O.C.G.A. Section
13-6-7, in the event of Buyer's default and as compensation for
Seller's taking the Property off the market during the term of this
Agreement. Such delivery of the Xxxxxxx Money and the retention of
the amounts paid from the Rent Subsidy Escrow Account shall be the
sole and exclusive remedy of Seller by reason of a default by Buyer
under this Agreement, and Seller hereby waives and releases any right
to xxx Buyer, and hereby covenants not to xxx Buyer, for specific
performance of this Agreement or to prove that Seller's actual damages
exceed the Xxxxxxx Money and the amounts paid from the Rent Subsidy
Escrow Account which are herein provided Seller as full liquidated damages.
(b) If (i) any representation or warranty of Seller set
forth in this Agreement shall prove to be untrue or incorrect in any
material respect, or (ii) Seller shall fail to keep, observe, perform,
satisfy or comply with, fully and completely in any material respect,
any of the terms, covenants, conditions, agreements, requirements,
restrictions or provisions required by this Agreement to be kept,
observed, performed, satisfied or complied with by Seller, or (iii)
the purchase and sale of the Property is otherwise not consummated in
accordance with the terms and provisions of this Agreement due to
circumstances or conditions which constitute a default by Seller under
this Agreement (the matters described in the foregoing CLAUSES (i),
(ii) AND (iii) are herein sometimes collectively called "SELLER
DEFAULTS"), the Xxxxxxx Money, the amount of Rent paid to Seller, and
any amount remaining in the Rent Subsidy Escrow Account shall be
refunded to Buyer immediately upon request or Buyer may seek specific
performance. Upon the occurrence of any of the Seller Defaults, Buyer
shall not be entitled to seek, prove or recover from Seller monetary
damages; PROVIDED, HOWEVER, in the event specific performance is not
available, or if Seller shall knowingly or intentionally fail to keep,
observe, perform, satisfy or comply with, fully and completely in any
material respect, any of the terms, covenants, conditions, agreements,
requirements, restrictions or provisions required by this Agreement to
be kept, observed, performed, satisfied or complied with by Seller,
Buyer's remedies shall specifically include, without limitation, the
right to seek, prove and recover (to the extent proven) monetary
damages from Seller, including, without limitation, an amount equal to
all actual out-of-pocket costs and expenses paid or incurred by Buyer
in connection with its execution of and entry into this Agreement and
its proposed acquisition of the Property, including, without
limitation, (A) attorney's fees and disbursements in connection with
the negotiation and execution of this Agreement, the examination of
title to the Property, and any other legal matter undertaken by Buyer
pertaining to the Property and (B) any examinations, investigations,
tests and inspections, undertaken by Buyer with respect to the Property.
16. Indemnification. Except for matters resulting from
---------------
Buyer's exercise of its rights pursuant to paragraph 5(a), Seller
18
shall, and does hereby, indemnify, defend and hold Buyer harmless
from, against and in respect of: (i) physical injury to or the death
of persons or damage to property occurring prior to and including the
Closing Date (x) on or in the Project, or (y) in any manner arising
out of, by reason of or in connection with the use, occupancy or
operation of the Project; (ii) any matter arising out of, by reason of
or with respect to the ownership or operation of the Property prior to
and including the Closing Date; (iii) any and all actions, causes of
action, suits, claims, demands, judgments, liens, proceedings and
investigations (or any appeal thereof or relative thereto or other
review thereof), of any kind or nature whatsoever, arising out of, by
reason of, as a result of or in connection with any of the matters
covered by the immediately preceding CLAUSES (i) OR (ii); and (iv) any
and all liabilities, damages, losses, costs, expenses (including
counsel fees and expenses and disbursements of counsel; PROVIDED,
HOWEVER, such counsel must be preapproved by Seller in writing),
amounts of judgment, assessments, fines or penalties, and amounts paid
in compromise or settlement, suffered, incurred or sustained by Buyer
on account of, by reason of, as a result of or in connection with any
of the matters covered by the immediately preceding CLAUSES (i), (ii) OR (iii).
17. Risk of Loss and Insurance. Between the date of this
--------------------------
Agreement and Closing, the risks and obligations of ownership and loss
of the Property and the correlative rights against insurance carriers
and third parties shall belong to Seller. In the event of the damage
or destruction of a material portion of the Property (as determined by
Buyer in its reasonable judgment) prior to Closing, Buyer shall have
the right, at Buyer's option, to terminate this Agreement by giving
written notice thereof to Seller within the first to occur of (i)
sixty (60) after Buyer has received notice from Seller of such damage
or destruction or (ii) Closing, in which event the Xxxxxxx Money and
the Rent Subsidy Escrow Account shall be refunded to Buyer immediately
upon request, all rights and obligations of Seller and Buyer under
this Agreement shall expire, and this Agreement shall terminate. If
Buyer does not so terminate this Agreement, the Purchase Price shall
be reduced by the total of any insurance proceeds received by Seller
prior to Closing by reason of such damage or destruction and by the
amount of any deductible applicable to the policy of insurance, and,
at Closing, Seller shall assign to Buyer all insurance proceeds to be
paid or to become payable after Closing by reason of such damage or destruction.
18. Condemnation. In the event of the taking of all or any
------------
part of the Property, or any interest therein, by eminent domain pro-
ceedings, or the commencement or bona fide threat of the commencement
of any such proceedings, prior to Closing, Buyer shall have the right,
at Buyer's option, to terminate this Agreement by giving written
notice thereof to Seller within the first to occur of (i) thirty (30)
after Buyer has received notice from Seller of such proceedings or the
threat of commencement of such proceedings or (ii) Closing, in which
event the Xxxxxxx Money and the Rent Subsidy Escrow Account shall be
refunded to Buyer immediately upon request, all rights and obligations
of Seller and Buyer under this Agreement shall expire, and this
Agreement shall terminate. If Buyer does not so terminate this
Agreement, the Purchase Price shall be reduced by the total of any
awards or other proceeds received by Seller prior to Closing with respect to
any taking, and, at Closing, Seller shall assign to Buyer all rights of Seller
in and to any awards or other proceeds to be paid or to become payable after
Closing by reason of any taking. Seller shall notify Buyer of eminent domain
proceedings within five (5) days after Seller learns thereof.
19. Brokers and Commission.
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(a) All negotiations relative to this Agreement and the
purchase and sale of the Property as contemplated by and provided for
in this Agreement have been conducted by and between Seller and Buyer
without the intervention of any person or other party as agent or
broker, with the exception of Brokers. Seller, Buyer and Brokers
warrant and represent to each other that, other than with regard to
Brokers, Seller and Buyer have not entered into any agreement or
arrangement and have not received services from any broker or broker's
employees or independent contractors which would give rise to any
claim of lien or lien against the Property pursuant to the Georgia
Commercial Real Estate Broker Lien Act, and there are and will be no
broker's commissions or fees payable in connection with this Agreement
or the purchase and sale of the Property by reason of their respective
dealings, negotiations or communications except the commission payable
to Brokers by SELLER in accordance with the terms and provisions of
SUBPARAGRAPH (b), below. BUYER shall in no event be responsible or
liable for the payment of any commission or fee to Brokers in
connection with the purchase and sale of the Property. Brokers agree
that, notwithstanding anything to the contrary contained in this
Agreement, if the purchase and sale of the Property is not consummated
in accordance with this Agreement, regardless of the reason or the
party at fault, and regardless of whether such failure results from
the misconduct, bad faith act or breach or default of a party under
this Agreement, no commission, fee or other charge shall have been
earned by or be payable to Brokers, and neither Seller nor Buyer shall
be obligated or liable to Brokers for any commission, fee or other
charge of any kind in regard to this Agreement or the purchase and
sale of the Property. If the purchase and sale of the Property is
consummated in accordance with this Agreement, payment of the
commission specified in SUBPARAGRAPH (b), below, shall constitute full
and complete payment and satisfaction of any and all commissions,
fees, charges and claims of Brokers and Brokers' agents, employees,
representatives and affiliates arising from, in connection with or
with respect to this Agreement and the purchase and sale of the
Property. Brokers acknowledge that Brokers are a party to this
Agreement for the sole purpose of setting forth Brokers' rights to the
payment of a commission or fee in connection with the purchase and
sale of the Property and Brokers' covenants as contained in this
paragraph. Brokers agree that Brokers have no other rights with
respect to the payment of a commission or fee in connection with this
Agreement or the purchase and sale of the Property, except as
specifically set forth in this paragraph. Seller, Buyer and Brokers
shall and do each hereby indemnify, defend and hold harmless each of
the others from and against the claims, demands, actions and judgments
of any and all brokers, agents and other intermediaries alleging a
commission, fee or other payment to be owing by reason of their
respective dealings, negotiations or communications in connection with
this Agreement or the purchase and sale of the Property.
(b) IEA has acted as agent for BUYER, in this transaction
and is to be paid a commission in the amount of TWO PERCENT (2%) of
the Purchase Price in cash at Closing by SELLER. IEA has not acted as
agent in this transaction for SELLER. Xxxxxx has acted as agent for
Seller in this transaction and is to be paid a commission in the
amount of FOUR PERCENT (4%) of the Purchase Price in cash at Closing
by Seller. Xxxxxx has not acted as agent in this transaction for
BUYER. Each Broker agrees to provide at Closing a sworn affidavit
with respect to the payment in full of all compensation due such
Broker in connection with the transactions contemplated by this
Agreement and waiving and releasing any and all lien rights under the
Commercial Real Estate Broker Lien Act, O.C.G.A. Sections 00-00-000 et seq.,
and running in favor of Buyer, Seller and Buyer's title insurer.
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20. Further Assurances; Survival. At Closing, and from
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time to time thereafter, Seller shall do all such additional and
further acts, and shall execute and deliver all such additional and
further deeds, affidavits, instruments, certificates and documents, as
Buyer, Buyer's counsel or Buyer's title insurer may reasonably require
fully to vest in and assure to Buyer full right, title and interest in
and to the Property to the full extent contemplated by this Agreement
and otherwise to effectuate the purchase and sale of the Property as
contemplated by and provided for in this Agreement. The provisions of
PARAGRAPHS 6, 21 AND 23 of this Agreement and the indemnification
provisions of PARAGRAPHS 5(a), 16 AND 19 of this Agreement shall
survive the consummation of the purchase and sale of the Property on
the Closing Date, the delivery of the deed to Buyer and the payment of
the Purchase Price. Notwithstanding any provision of this Agreement to
the contrary, the indemnification provisions of PARAGRAPHS 5(a), 16
AND 19 of this Agreement shall survive any termination of this
Agreement.
21. Confidentiality. Seller agrees that, until the Closing
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Date, all information concerning this transaction, including the terms
and conditions of the letter agreement dated July 15, 1998 signed by
Seller and Buyer and this Agreement, and all other documents related
to this transaction, shall be kept strictly confidential and shall
not, without the prior written consent of Buyer, be disclosed or used
for any purpose; PROVIDED, HOWEVER, Seller may notify any lenders
holding a security interest in the Property of the transactions
contemplated by this Agreement. This paragraph shall apply to the
Seller and its respective trustees, employees, attorneys, accountants,
contractors, consultants, advisors and agents. In addition to any
other remedies available to Buyer, Buyer shall have the right to seek
equitable relief, including without limitation, injunctive relief or
specific performance, against Seller in order to enforce the
provisions of this paragraph.
22. Buyer's Approvals. Seller acknowledges that there may
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be required to be obtained from appropriate governmental authorities
certain authorizations, consents or approvals (including rezonings and
special use permits) for Buyer's proposed use or development of the
Property in its current condition for a bank (all of the foregoing
being herein collectively called "BUYER'S APPROVALS"). Buyer shall
have the right to seek and make applications for Buyer's Approvals, in
Buyer's sole judgment and discretion, PROVIDED, HOWEVER, Buyer may not
seek any Buyer's Approvals to construct any additional buildings,
structures or other improvements on the Land without the prior written
consent of Seller. At Buyer's request, Seller shall cooperate with
Buyer in connection with Buyer's efforts to obtain Buyer's Approvals
and, in connection therewith, Seller, as the owner of title to the
Property, shall execute such documents and instruments as may be
required by applicable governmental requirements or governmental
authorities in connection with Buyer's applications for Buyer's
Approvals.
23. Seller's Tax Deferred Exchange. Seller may convey the
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Property or any portion thereof or interest therein as part of one or
more Internal Revenue Code Section 1031 Tax Deferred Exchanges for its
benefit. In such event, Seller shall be assigning all contract rights
and obligations hereunder to a qualified intermediary, as a part of,
and in furtherance of, such tax deferred exchange. Buyer agrees to
assist and cooperate in any such exchange, and Buyer further agrees to
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execute any and all documents as are reasonably necessary in
connection with any such exchange, provided Buyer incurs no additional
liability. Buyer shall not be obligated to incur any cost or expense
in connection with any such exchange, other than that which Buyer
elects to incur to have its counsel review the documents and instruments
incident thereto. As part of any such exchange, Seller shall convey the real
property described herein directly to Buyer and Buyer shall not be obligated
to acquire or convey any other property as part of any such exchange.
24. General Provisions.
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(a) Notices. Whenever any notice, demand or request is
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required or permitted under this Agreement, such notice, demand or
request shall be in writing and shall be delivered by hand, be sent by
registered or certified mail, postage prepaid, return receipt
requested, or be sent by nationally recognized commercial courier for
next business day delivery, to the addresses set forth below their
respective executions hereof, or to such other addresses as are
specified by written notice given in accordance herewith, or shall be
transmitted by facsimile to the number for each party set forth below
their respective executions hereof, or to such other numbers as are
specified by written notice given in accordance herewith. All
notices, demands or requests delivered by hand shall be deemed given
upon the date so delivered; those given by mailing as hereinabove
provided shall be deemed given on the date of deposit in the United
States Mail; those given by commercial courier as hereinabove provided
shall be deemed given on the date of deposit with the commercial courier; and
those given by facsimile shall be deemed given on the date of facsimile
transmittal. Nonetheless, the time period, if any, in which a response to any
notice, demand or request must be given shall commence to run from the date of
receipt of the notice, demand or request by the addressee thereof. Any notice,
demand or request not received because of changed address or facsimile number
of which no notice was given as hereinabove provided or because of refusal to
accept delivery shall be deemed received by the party to whom addressed on the
date of hand delivery, on the date of facsimile transmittal, on the first
calendar day after deposit with commercial courier, or on the third calendar
day following deposit in the United States Mail, as the case may be.
(b) Facsimile as Writing. The parties expressly
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acknowledge and agree that, notwithstanding any statutory or decisional law
to the contrary, the printed product of a facsimile transmittal shall be deemed
to be "written" and a "writing" for all purposes of this Agreement.
(c) Assignment; Parties. Buyer may not assign or
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transfer this Agreement or any interest of Buyer under this Agreement
without the prior written consent of Seller unless such assignment is
made to an affiliate of Buyer. Notice of any such assignment,
including the name and address of the assignee, shall be given
promptly to Seller. For purposes of this subparagraph, the term
affiliate shall include any entity controlled by one (1) or more of
the current owners of Buyer. If said affiliate is not seeking a
Charter for the operation of a bank, the provisions of subparagraph
13(b) shall be of no further force or effect.
(d) Headings. The use of headings, captions and numbers in
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this Agreement is solely for the convenience of identifying and
indexing the various provisions in this Agreement and shall in no
event be considered otherwise in construing or interpreting any
provision in this Agreement.
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