AGREEMENT FOR PURCHASE AND SALE

Exhibit 10.3

 

 

THIS AGREEMENT, made and entered into this 22nd day of September, 2005, by and between Logue Court Properties, LLC, a South Carolina limited liability company (hereinafter the “Purchaser”), and Robert W Bruce , an individual and resident of South Carolina, and Camperdown Company, Inc., a South Carolina corporation (hereinafter collectively the “Sellers”).

 

W I T N E S S E T H:

 

WHEREAS, Sellers are the owners in fee simple of that certain tract or parcel of land in Greenville County, South Carolina, being more particularly described as follows (hereinafter the “Land”):

 

That lot, piece and parcel of land consisting of approximately 8,457 acres being located on Logue Court, Greenville, South Carolina. Said Property is further described on Alta/ACSM Land Title Survey and entitled “Survey For Pelham Limited Partnership”, a copy of which is attached hereto as Exhibit A.

 

WHEREAS, Purchaser desires to purchase from Sellers the Property described below, and Sellers desire to sell and convey the same to Purchaser;

 

NOW, THEREFORE, in consideration of the promises and mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

SUBJECT PROPERTY

 

1.1 The Property . Subject to the terms and conditions set forth herein, Purchaser agrees to buy and Sellers agrees to sell and convey all of Sellers’ right, title and interest in and to the Property described as follows:

 

(a)

The Land;

 

(b)

All rights, privileges and easements appurtenant to the Land, including all rights, rights-of-way, roadways, roadbeds, and reversions (the “Appurtenant Rights”);

 

(c)

All improvements on or within the Land, including buildings and structures and signs (the “Improvements”); and

 

(d)

All fixtures relating to the Land and/or Improvements.

 

ARTICLE II

PURCHASE PRICE

 

2.1 Payment of Purchase Price . The purchase price for the Property shall be Four Million Seven Hundred Fifty Thousand Dollars and No Cents ($4,750,000.00) and shall be paid in cash at Closing, subject to the adjustments required in this Agreement.

 

2.2 Earnest Money . Within one (1) business day after Purchaser’s receipt of a fully executed original of the Agreement from Sellers, Purchaser shall deliver to NAI Earle Furman, LLC, as escrow agent hereunder (hereinafter referred to as “Escrow Agent”), an earnest money deposit (hereinafter referred to as the “Earnest Money”) in the amount of Fifty Thousand Dollars and No Cents ($50,000.00), payable to the order of Escrow Agent.

 

Escrow Agent agrees to hold and disburse the Earnest Money in a trust account in accordance with the terms of this Agreement. All Earnest Money shall be applied toward the Purchase Price at Closing (as that term is hereinafter defined).

 

2.3 Escrow Agent . The Earnest Money shall be held by the Escrow Agent until the Closing Date or sooner termination of this Agreement and Escrow Agent shall pay over the interest or income earned thereon, if any, to the party entitled to the Earnest Money and the party receiving such interest or income shall pay any income taxes due thereon. In the event the Closing shall occur in accordance with the provisions of this Agreement, then, Escrow Agent shall deliver the Earnest Money to Closing Authority. If, for any reason, the Closing does not occur pursuant to the provisions of this Agreement and either party makes a written demand upon Escrow Agent, by registered or certified mail (return receipt optional), or Federal Express, for the payment of the Earnest Money, then Escrow Agent shall give written notice in accordance with the provisions hereof to the other party of the receipt of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment of the Earnest Money pursuant to the demand within ten (10) days after the delivery of such notice by Escrow Agent, Escrow Agent is hereby authorized to make such payment in accordance with the aforesaid demand. If Escrow Agent receives written objection from the other party to the proposed payment of the Earnest Money pursuant to the aforesaid demand within such ten (10) day period or if, for any other reason, Escrow Agent in good faith shall elect not to make such payment, Escrow Agent shall continue to hold the Earnest Money until otherwise directed by written instructions from Sellers and Purchaser or a final judgment of a court of competent jurisdiction. Escrow Agent, however, shall have the right at any time to deposit the Earnest Money with the clerk of any court of competent jurisdiction in the state where the Property is located, and Escrow Agent shall give written notice of such deposit to

 

the Sellers and the Purchaser, and upon such deposit being made, Escrow Agent shall be discharged from all obligations and responsibilities hereunder. The parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that Escrow Agent may act upon any writing believed by it in good faith to be genuine and to be signed and presented by the proper person, and that Escrow Agent shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith, in willful disregard of this Agreement or involving gross negligence. Escrow Agent shall have no duties or responsibilities relating to escrow except as set forth in this paragraph. Escrow Agent shall not be bound by any modification of the Agreement unless the same is in writing and signed by the Purchaser and Sellers and if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. The Sellers and Purchaser hereby jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses (including reasonable attorney’s fees) incurred in connection with the performance by the Escrow Agent of its duties in accordance with the provisions of this Section of this Agreement.

 

ARTICLE III

SELLER’S REPRESENTATIONS, WARRANTIES AND COVENANTS

 

In order to induce Purchaser to enter into this Agreement and to purchase the Property, in addition to warranties, representations, covenants, and undertakings contained elsewhere in this Agreement, each Seller hereby makes the following representations, warranties and covenants, each of which is material and is relied upon by Purchaser:

 

3.1 Authority of Sellers . Each Seller has the right, power and authority to enter into this Agreement and to sell the Property in accordance with the terms and conditions hereof. This Agreement, when executed and delivered by Sellers, will be a valid and binding obligation of Sellers in accordance with its terms.

 

3.2 No Special Taxes . The Property is not subject to special taxes or assessments for roadway, sewer, or water improvements or other public improvements.

 

3.3 Options; Leases . No options or other contracts have been granted or entered into which are still outstanding and which give any other party a right to purchase any interest in the Property or any part thereof. The only leases in effect with respect to all or any part of the Property (the “Leases”) are described on the attached Exhibit B , and copies of each lease and all amendments and other documents relating thereto are attached as Exhibit B (collectively, the “Leases”). There are no current or pending defaults under any of the Leases, and the Sellers will give the Purchase immediate notice of any default or threatened default under any Lease. There have been no pre-paid rents under any Lease, and Exhibit C attached hereto evidences all security deposits held by the Sellers. No tenant has any claim to a security deposit relating to any Lease other than as shown on Exhibit C .

 

3.4 Condemnation Proceedings . There are no condemnation or eminent domain proceedings pending against the Property or any part thereof and the Sellers have received no notice, oral or written, of the desire of any public authority or other entity to take or use the Property or any part thereof.

 

3.5 Mechanic’s Liens . No payments for work, materials, or improvements furnished to the Property will be due or owing at Closing and no mechanics lien, materialmans lien, or other similar lien shall be of record against the Property at the time of Closing.

 

3.6 Pending Litigation . There is no claim, litigation, or other proceeding, the probable outcome of which will have a material adverse effect on the value of the Property or its intended use pending or threatened before any court, commission, or other body or authority, and, further, Sellers have not received written notification of any asserted failure of Sellers or the Property to comply with applicable laws (whether statutory or not) or any rule, regulation, order, ordinance, judgment or decree of any federal, municipal or other governmental authority; provided , however, that this representation shall not apply to liability claims for which there is adequate and sufficient liability insurance.

 

3.7 Flood Conditions . To the best of the Sellers’ actual knowledge the Property has not suffered any damage nor required any extraordinary repairs due to flooding or inadequate drainage.

 

3.8 Hazardous Substances . (a) No portion of the Property is in any way contaminated with any hazardous substance; (b) no portion of the Property appears on any state or federal CERCLA (Comprehensive Environmental Responsibility, Compensation, and Liability Act or Superfund) lists as being classified as a hazardous waste site; (c) there is no asbestos on the Property; (d) there is no underground storage tank on the Property; (e) no hazardous waste has been placed in, on or over any portion of the Property; (f) no portion of the Property has been used as a plant or site where hazardous waste is subjected to treatment, storage, disposal or recover; and (g) no portion of the Property is subject to any federal, state or local “Superfund” lien, proceedings, claim, liability or action, or the threat or likelihood thereof, for the clean-up, removal or remediation of any such hazardous substance from the Property.

 

The term “Superfund” as used herein means the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, being Title 42 U S. C §~9601et seq, as amended, and any similar state statute or local ordinance applicable to the Property, and all rules and regulations promulgated, administered, and enforced by any governmental agency or authority pursuant thereto. The term “underground storage tank” as used herein shall have the same meaning and definition as set forth in paragraph (1) of 42 U.S C. §6991.

 

3.9 No Defaults . Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will:

 

(a)

Conflict with, or result in a breach of, the terms, conditions, or provisions of, or constitute a default under, any agreement or instrument to which Sellers or any predecessor of Sellers are a party, or;

 

(b)

Violate any restriction to which Sellers are subject, or;

 

(c)

Constitute a violation of any applicable code, resolution, law, statute, regulation, ordinance, rule, judgment, decree, or order, or;

 

(d)

Result in the acceleration of any mortgage or note pertaining to the Property or the cancellation of any contract or lease pertaining to the Property, or;

 

(e)

Result in the creation of any lien, charge or encumbrance upon any of the properties or assets to be sold or assigned to Purchaser pursuant to the provisions of this Agreement.

 

3.10 Utilities . To the best knowledge of the Sellers, sanitary and storm sewers, public water facilities, natural gas, and electric power (collectively the “Utilities”) are connected to the Property. The Utilities reach the property line of the Property through valid public or private easements or rights-of-way to which Purchaser shall have access.

 

3.11 Further Acts of Sellers . On or before the Closing, Sellers will do, make, execute and deliver all such additional and further acts, deeds, instruments and documents as may be reasonably required by Purchaser’s title insurance company completely to vest in and assure to Purchaser full rights in or to the Property.

 

3.12 Zoning . The Property has an I-1 Industrial Zoning Classification as specified by the Greenville County Zoning Ordinance.

 

3.13 No Claims . There is no claim or, to the best of Sellers’ knowledge, potential claim against any portion of the Property, any Tenant or Sellers for or on account of work done, materials furnished or utilities on any portion of the Property. There are no pay-back agreements, revenue bonds, utility debt service expenses or other charges or expenses applicable to the Property.

 

3.14 Compliance . No portion of the Property violates any laws, statutes, ordinances, rules or regulations, and the Sellers have received no notice of any such violations, pen, noticed or existing.

 

3.15 No Assessments . To Sellers’ knowledge, there are no plans or proposals for changes in road grade, access or other municipal or other improvements, which would affect the Property or result in any assessment. To Sellers’ knowledge, no ordinance authorizing improvements, the cost of which might be assessed against Purchaser or the Property is pending. There is no tax certiorari proceeding pending for the reduction or increase of the assessed real estate tax valuation to the Property or any portion thereof.

 

3.16 No Contracts . Sellers have not entered into any real estate, management, supply, promotional, operating, leasing, maintenance, security and service contract, equipment lease, signage lease, or other agreements (excluding the Leases) relating to the ownership or use of the Property, which are in force (or which cannot be terminated at closing without penalty) with respect to the Property, and neither Seller, nor any person authorized to act on its behalf, is a party to any written, oral or implied contract, agreement, lease or other commitment affecting or relating to the Property, including without limitation, agreements for the purchase of goods or the rendition of services.

 

3.17 Ownership . Sellers are the legal and equitable owner of good, marketable and indefeasible title to the Property, and will convey such title to Purchaser on the Closing Date free and clear of all options, rights, covenants, easements, liens and other rights in favor of third parties, other than the exceptions approved by the Purchaser during the Inspection Period. Sellers do not own any personal property located on or used in connection with the Property.

 

3.18 Permits . Sellers are not required to possess any licenses, certificates, and permits to own, operate, use and/or maintain the Property (collectively, the “Operating Permits”), and Sellers have not received any notice, nor are Sellers aware, of the violation of any applicable building, zoning or other ordinances, resolutions, statutes or regulations of any government or governmental agency, including, but not limited to, environmental control agencies or the Insurance Board of Underwriters with respect to the operation, use, maintenance, condition or operation of the Property or any part thereof, or requiring any repairs or alterations to the Property.

 

3.19 Authority . Camperdown Company, Inc., is duly organized, validly existing and in good standing under the laws of the State of South Carolina.

 

3.20 Notices . The Sellers will give the Purchaser immediate notice of any correspondence, notice, default or event relating in any way to any of the representations set forth above, including but not limited to any default or termination of any Lease.

 

3.21 Representations . If any representation by Sellers hereunder is not correct at Closing, the Sellers shall be in default hereunder.

 

ARTICLE IV

CONDITIONS PRECEDENT TO PURCHASER’S OBLIGATIONS

 

The following shall be conditions precedent to the Purchaser’s obligation to purchase the Property. Unless otherwise specified in this Article IV, if any of the conditions precedent set forth below are not satisfied as of Closing, the Earnest Money shall be immediately refunded to Purchaser, this Agreement shall be null and void, and neither Purchaser nor Sellers shall have any further obligations hereunder.

 

4.1 Purchaser’s Inspection . Purchaser shall a Sixty (60) day inspection period (the “Inspection Period”), beginning immediately upon final execution of this contract, to go upon the Property and/or improvements (if any) with its agents and engineers as needed to inspect, examine, survey and otherwise do what Purchaser deems necessary to determine the feasibility and suitability of the Property for the Purchaser’s intended use. Said privileges shall include, but not be limited to, the right to make surveys, soil tests, borings, percolation tests, environmental and hazardous waste tests of the Property and/or improvements; provided; however, that the Purchaser shall hold Sellers harmless from any damages incurred by Sellers and/or damages or injury or claim thereof, including attorneys’ fees arising out of, or in any way connected with the acts or omissions of Purchaser, its agents and engineers through the exercise of such privilege. Immediately following such surveys and inspections and at its expense, Purchaser shall put the Property back in the condition that existed prior to such surveys, tests or inspections. Should Purchaser at its sole discretion determine that the Property is unsuitable for Purchaser’s intended use for any reason and delivers written notice of such to Sellers or Sellers’ agent within the Inspection Period, all earnest money shall be promptly refunded to Purchaser and neither Purchaser nor Sellers shall have any further obligation to the other.

 

4.2 Status of Title . Sellers shall convey good and marketable fee simple title to the Property to Purchaser subject only to encumbrances and title exceptions which do not adversely affect the marketability of the Property. Purchaser shall review during the Inspection Period the title and submit to Sellers and Escrow Agent notice in writing of any title exceptions which are not acceptable to Purchaser. Sellers shall have fifteen (15) days from the receipt of notice within which to take such actions (if any) which Sellers deem appropriate to remove such title exceptions. Purchaser’s failure to deliver title comments shall be deemed to establish Purchaser’s satisfaction with the status of title as of the Date of this Agreement except for liens or other encumbrances which are to be satisfied under other provisions of this Agreement. If at the end of Sellers’ cure period Sellers have not corrected to Purchaser’s satisfaction the objections to title, Purchaser may (1) waive its objections and consummate the within transaction without a reduction in the purchase price of the Property, or (2) terminate this Agreement, in which event this Agreement shall be void, the Earnest Money shall be promptly refunded to Purchaser, and neither party shall have any further obligation hereunder.

 

4.3 Environmental Study . The Purchaser may contract with a licensed environmental engineer to confirm that the Property is free from environmental

 

contamination (the “Environmental Assessment”). If the results of Environmental Assessment produce negative findings, then the Purchaser may terminate this Agreement by giving written notice thereof to Sellers, in which event this Agreement shall terminate and Escrow Agent shall immediately return the Earnest Money to the Purchaser as full liquidated damages. The Purchaser shall furnish the Sellers with copies of all letters and studies provided the Purchaser on the Property.

 

4.4 Leases . The Leases shall not have been terminated or in default.

 

4.5 Warranties . Each of the representations and warranties of the Sellers contained in this Agreement shall be true as of the date of Closing.

 

4.6 No Condemnation . No part of the Property shall have been acquired, or shall be about to be acquired, by authority of any governmental agency in the exercise of its power or threat of eminent domain or by private purchase in lieu thereof and no adverse change in the zoning of the Property shall have occurred or be pending. If such taking or change has occurred or is threatened, Purchaser may, at its sole option, (i) terminate this Agreement and receive return of the Earnest Money, or (ii) continue this Agreement in which event Sellers shall assign or pay over to Purchaser any award or proceeds resulting from any condemnation.

 

4.7 Possession . Possession of the Property shall be transferred to the Buyer subject only to the Leases and the rights of the tenants thereunder.

 

4.8 Authority . Sellers shall deliver an Affidavit or Resolution of the Sellers stating that the person(s) executing the closing documents is/are authorized to do so and that all such documents are valid and binding upon the Sellers.

 

4.9 Assignment of Warranties . Sellers shall assign (to the extent assignable) and during the Inspection Period deliver to the Purchaser all existing and assignable maintenance, utility and service contracts and warranties, receivables and building plans, state, local and other governmental licenses, and all other documents in the Sellers’ possession concerning the operation of the Property.

 

4.10 Sellers’ Performance . Sellers shall have performed all of their obligations set forth in this Contract, and the Property and all matters related thereto, including but not limited to the title and the status of the Leases shall be in the same condition as when acceeed by the Purchaser at the end of Inspection Period.

 

4.11 No Defaults . There shall have occurred no default by either of the Sellers hereunder.

 

ARTICLE V

CLOSING

 

5.1 Closing . The purchase and sale contemplated hereunder shall be consummated at the Closing (referred to herein as the “Closing”) which shall take place on a date to be set exclusively by the Sellers that is no more than One Hundred Eighty (180) days from the End of the Purchaser’s Inspection Period. The Sellers shall give the Purchaser no less than Thirty (30) days written notice of the date set for Closing. The Closing shall take place at the offices of Purchaser’s counsel or at such other place as may be mutually agreed upon by Sellers and Purchaser. Sellers will surrender possession of the Property to Purchaser simultaneously with the Closing.

 

ARTICLE VI

PRO-RATED ITEMS AND ADJUSTMENTS

 

6.1 Closing Costs and Payments . Costs and payments related to the purchase and sale of the Property shall be paid at Closing as follows:

 

(a)

Sellers shall satisfy or pay for:

 

(i)

All mortgages and other liens (other than the lien of taxes for the year of 2005, which are not yet due and payable) with respect to the Property and all transfer, servicing, or prepayment penalties or fees assessed by the holders of such mortgages;

 

(ii)

The cost of documentary stamps, statutory deed recording fees or transfer taxes assessed in connection with the conveyance of the Property and the Leases;

 

(iii)

All of Sellers’ legal fees; and

 

(iv)

The cost of preparing the deed.

 

(b)

Purchaser shall pay for:

 

(i)

Title insurance premiums due in connection with the issuance of Purchaser’s owner’s title insurance policy and/or a loan policy;

 

(ii)

All of Purchaser’s legal fees;

 

(iii)

The recording cost of the deed conveying title to the Property to Purchaser;

 

(iv)

Any loan fees and costs;

 

(v)

Survey;

 

(vi)

Phase I environmental audit;

 

(vii)

Physical inspections of the Property; and

 

(c)

All other costs of closing shall be paid by the party incurring such cost.

 

6.2 Prorations . Property taxes, which are a lien, but not yet due and payable, rents, property owner association fees and other costs related to the Project, and all rental income from the Leases shall be prorated as of the Closing date. All

 

prorations required under this Agreement shall be computed as of the date of Closing, and the cash portion of the Purchase Price paid to Sellers shall be adjusted to reflect such prorations.

 

ARTICLE VII

SELLER’S DELIVERIES

 

In addition to other conditions precedent set forth elsewhere in this Agreement, Sellers shall deliver to Purchaser all of the following documents and items, the delivery and accuracy of which shall further condition Purchaser’s obligations to consummate the purchase and sale herein contemplated:

 

7.1 Items Delivered Within Ten (10) Business Days . Sellers shall deliver to Purchaser, within ten (10) business days of the Date of this Agreement (as defined in Section 12.10), any of the following items which are in Sellers’ possession or readily obtainable by Sellers:

 

(a)

A copy of Sellers’ title insurance policy.

 

(b)

Copy of the most recent Real Estate tax bills for the Property.

 

(c)

Any existing surveys of the Property.

 

(d)

Evidence of the current zoning classification assigned to the Property.

 

(e)

Results of any soil boring tests (if any) with respect to the Property.

 

(f)

All site plan drawings and topographical renderings of the Property.

 

(g)

All environmental studies of the Property and any environmental permits or approvals obtained by Sellers with respect to the Property.

 

(h)

All engineering plans and specifications with respect to sewer and drainage facilities and lines and roads on the Property if not dedicated and accepted for maintenance by the applicable municipality.

 

7.2 Items Delivered at Closing . Sellers shall deliver the following items at Closing, all of which must be in a form and of substance satisfactory to the Purchaser:

 

(a)

A General Warranty Deed, satisfactory in form and substance to Purchaser’s title insurance company, conveying good and marketable fee simple title to the Property, free and clear of all liens, encumbrances, easements, and restrictions except as may be permitted under this Agreement.

 

(b)

An Owner’s Affidavit or lien waiver satisfactory for the purpose of removing the mechanic’s lien exception from Purchaser’s Owner’s Title Insurance Policy for the Property.

 

(c)

Any real estate liens or other instruments or agreements to be canceled pursuant to the terms of this Agreement, in form appropriate for cancellation of record.

 

(d)

An affidavit confirming that Sellers are not a “Nonresident” of South Carolina and is therefore exempt from the withholding requirements of Section 12-9-310 of the Code of Laws of South Carolina. (If Sellers cannot give such affidavit, then Purchaser will withhold the amount required by such statute and remit same to the South Carolina Tax Commission).

 

(e)

A tax compliance letter for Camperdown Company, Inc. from the South Carolina Department of Revenue dated not less than thirty (30) days prior to the Closing Date.

 

(f)

An assignment of leases and security deposits;

 

(g)

Estoppels and Subordination, Non-Disturbance and Attornment Agreements from the tenants under the Leases and any other parties requested by the Purchaser.

 

(h)

Any documentation, affidavits, lien waivers or other documents required by the Title Insurance company to issue a Title Insurance Policy to the Purchaser in a form and of content acceptable to the Purchaser.

 

(i)

Notice to tenants and any other applicable parties under the Leases regarding the assignment of the leases to the Purchaser;

 

(j)

Sellers’ certification that the warranties and representations made by Sellers in this Agreement are true, correct and complete as of the Closing Date; and

 

(k)

Any and all other documentation requested by Purchaser to consummate the transactions described herein.

 

ARTICLE VIII

PURCHASER’S DELIVERIES AT CLOSING

 

At Closing, Purchaser shall pay to Sellers the purchase price by certified check, cashiers check, wire transfer or other good funds, adjusted for the prorations and adjustments required in connection with the Closing. The Earnest Money shall be applied against the purchase price of the Property at Closing unless otherwise provided herein.

 

ARTICLE IX

CONDEMNATION OR CASUALTY LOSS

 

9.1 Insurance: Risk of Loss. Sellers shall bear the risk of loss to the Property through the date of Closing. In the event that, prior to Closing, all or any portions of the Property, or any interests therein, or any rights appurtenant thereto, are taken or appropriated (either permanently or for temporary periods) under the power of eminent domain or condemnation by any authority having such power, or by virtue of any proceedings in lieu thereof, or if any notice or threat of such taking or appropriation has been given or is pending at the closing date, or if any portion of the Property is damaged, Sellers shall give immediate notice of same to Purchaser and then Purchaser, at its option, may either (a) cancel this Contract by written notice to Sellers, in which event Escrow Agent shall immediately refund the Earnest Money to Buyer and neither party shall thereafter have any further obligation to the other party hereunder, or (b) elect to proceed with Closing, in which event the Purchase Price shall be reduced by an amount equal to any sums theretofore paid or then payable to Sellers by the condemning authority by reason of such taking or appropriation or by any insurance company by reason of such damage or casualty, and Sellers shall transfer and assign to Purchaser at closing any and all further claims, demands, actions and chooses in action which may exist by virtue of such taking, appropriation, damage or casualty; provided, however, that until the earlier of (i) closing hereunder, or (ii) termination of this Agreement, Sellers shall not make any voluntary settlement or agreement regarding any taking, appropriation, damage or without first obtaining Purchaser’s written consent to such settlement or agreement.

 

ARTICLE X

REAL ESTATE COMMISSION

 

10.1 Real Estate Commission . If this transaction is consummated, Sellers agree to pay a brokerage commission of five percent (5%) of the total purchase price to NAI Earle Furman, LLC, to be dispersed as agreed under separate agreement in connection with the purchase and sale of the Property. It is acknowledged by all parties that NAI Earle Furman, LLC represents the Sellers in this transaction.

 

Excepting said commission, Sellers and Purchaser represent and warrant to each other that no brokerage fees or real estate commissions are or shall be due or owing in connection with this transaction or in any way with respect to the Property. Sellers agree to defend, indemnify, and hold Purchaser harmless from any claims, costs, judgments, or liabilities of any kind advanced by persons claiming real estate

 

brokerage fees through Sellers. Purchaser agrees to defend, indemnify, and hold Sellers harmless from any claims, costs, judgments, or liabilities of any kind advanced by persons claiming real estate brokerage fees through Purchaser. The indemnities set forth in this Article 10.1 shall survive Closing. Purchaser acknowledges that he has not relied upon any representation made to him by NAI Earle Furman, LLC, as to the condition of the Property or otherwise.

 

ARTICLE XI

DEFAULT

 

11.1 Purchaser’s Default . If all conditions and other events precedent to Purchaser’s obligation to consummate the transaction herein contemplated have been waived in writing by Purchaser or satisfied, and if Sellers have performed its covenants and agreements hereunder, but Purchaser has breached its covenants and agreements hereunder and has failed, refused, or is unable to consummate the purchase and sale contemplated herein, then Sellers shall give Escrow Agent and Purchaser notice of such circumstances and shall be entitled to receive the Earnest Money and to pursue any other remedies available under applicable laws; provided NAI Earle Furman, LLC, shall be entitled to such portion thereof as may be provided in its listing agreement with Sellers.

 

11.2 Sellers’ Default . If Purchaser has performed all of its obligation hereunder, but Sellers have breached their covenants and agreements under this Agreement or have failed, refused or are unable to consummate the purchase and sale contemplated herein, then Purchaser shall give Sellers and Escrow Agent notice of such event and Purchaser shall be entitled to receive a refund of the Earnest Money and to pursue any other remedies available under applicable laws, including specific performance of this Agreement.

 

ARTICLE XII

MISCELLANEOUS PROVISIONS

 

12.1 Completeness: Modification . This Agreement constitutes the entire agreement between the parties hereto with respect to the transaction contemplated herein and it supersedes all prior discussions, undertakings or agreements between the parties. This Agreement shall not be modified except by a written agreement executed by both parties.

 

12.2 Binding Effect . This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective, heirs, devisees, personal representatives, successors and assigns.

 

12.3 Survival of Warranties . Except as otherwise expressly provided herein, it is the express intention and agreement of the parties to this Agreement that all covenants, agreements, statements, representations and warranties made by Purchaser and Sellers in this Agreement shall survive the Closing.

 

12.4 Governing Law . This Agreement shall be governed by and construed under the laws of the State of South Carolina.

 

12.5 Article Headings . The Article headings as used herein are for convenience or reference only and shall not be deemed to vary the content of this Agreement or the covenants, agreements, representations, and warranties set forth herein or limit the provisions or scope of any Article.

 

12.6 Pronouns . All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.

 

12.7 Time of Essence . Both parties hereto specifically agree that time is of the essence to this Agreement with respect to the performance of the obligation of the parties under this Agreement.

 

12.8 Counterparts . To facilitate execution, this Agreement may be executed in as many counterparts as may be deemed appropriate by the parties, all of which shall comprise one Agreement.

 

12.9 Notices . All notices, requests, consents and other communications hereunder shall be in writing and shall be personally delivered or mailed by First Class, Registered or Certified Mail, return receipt requested, postage prepaid, as follows:

 

 

Any such notice, request, consent or other communications shall be deemed received at such time as it is personally delivered or on the fifth (5 ^th ) business day after it is so mailed, as the case may be. Counsel for the parties may deliver notice on behalf of the parties.

 

12.10 Date of this Agreement . The term “Date of this Agreement” as used in this Agreement shall mean the first date upon which both Purchaser and Sellers have - executed a final counterpart of this Agreement.

 

12.11 Tax Deferred Exchange Provision . In the event the Sellers wish to enter into a tax deferred exchange for the Property described herein, or if the Purchaser wishes to enter into a tax deferred exchange with respect to property owned by it in connection with this transaction, each of the parties agrees to cooperate with the other party in connection with such (whether simultaneous or deferred) for all or a portion of the Property pursuant to Section 1031 of the Code, provided that: (a) the other party shall not be obligated to delay the closing, (b) all additional costs in connection with the exchange should be borne by the party whose property is exchanged, and (c) the other party shall not be obligated to execute any note, contract, or other document providing for any personal liability which would survive the exchange. The other party shall be indemnified and held harmless against any liability which arises or is claimed to have arisen on account of their acquisition of ownership of the exchange property.

 

12.12 Assignment . Purchaser may assign this Agreement and all of its interests herein, upon notice to the Sellers. Upon such assignment, the assignee shall have and be subject to all the rights, benefits, duties and obligations of Purchaser hereunder, and the original Purchaser shall be relieved of its obligations, duties, rights and benefits from hereunder. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, assigns, heirs and personal representatives.

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

 

THIS IS A LEGALLY BINDING CONTRACT. IF NOT COMPLETELY UNDERSTOOD, WE RECOMMEND YOU SEEK COMPETENT ADVICE FROM YOUR ATTORNEY .

 

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EXHIBIT A