STATE OF
GEORGIA
COUNTY OF
FULTON
AGREEMENT FOR PURCHASE AND
SALE OF REAL PROPERTY
This Agreement
of Purchase and Sale for Commercial Property (the
“Agreement”) by and between Stanley Konter, Rose Konter
, Natalie Sarnat, Jonathan Sarnat, Elissa Konter & Harris
Konter (“Seller”) and Blue Earth Solutions Georgia,
Inc., a Georgia Corporation, a wholly owned subsidiary of Blue
Earth Solutions, Inc., a Nevada Corporation
(“Purchaser”) wherein Seller agrees to sell and
Purchaser agrees to purchase property under the terms and
conditions set forth herein.
1.
PROPERTY. Purchaser agrees to buy, and Seller
agrees to sell, all that real property located in Land Lot 63 of
the 14th District Fulton County, Georgia containing
approximately 2.6 acres, more or less
commonly known as 3428 Browns Mill Rd. Atlanta, GA, as
more particularly described in Exhibit "A" attached hereto and
incorporated herein, together with all improvements now located
thereon, including all electrical, mechanical, plumbing and other
systems and all fixtures located therein, as well as plants, trees,
and shrubbery thereon (collectively, the
“Property”). For purposes of this Agreement,
the “Execution Date” is the last date this Agreement is
signed by either Purchaser or Seller as noted in the signature
block hereof.
2.
PURCHASE PRICE. The purchase price ("Purchase
Price") of the Property shall be One Million Two Hundred Seventy
Thousand and no/100 Dollars ($1,270,000 US) and shall be paid to
Seller at Closing (as hereinafter defined), The Purchase
Price shall be paid at Closing by bank wire transfer or by
certified check of funds available for immediate credit.
3.
EARNEST MONEY.
(a) Within five (5) business days after
the parties have executed the Agreement, Purchaser shall deposit
with Escrow Agent the sum of Twenty-Five Thousand Dollars ($25,000
US) by check payable to Escrow Agent, which payment is hereinafter
referred to as "Earnest Money." The Earnest Money shall
be refundable to Purchaser should the Atlanta Development Authority
fail to issue the proposed Solid Waste Facilities Revenue Bonds and
disburse authorized acquisition proceeds for the purchase of the
Property on or before the Closing Date (and any extensions thereof)
as defined herein (“Financing
Contingency”). The Earnest Money shall be
applicable to the Purchase Price at Closing and shall reduce the
Purchase Price in an equal amount at the Closing.
(b) Prior
to any disbursal by Escrow Agent other than at Closing, Escrow
Agent shall notify the parties hereto of Escrow Agent’s
intent to disburse in writing. In the event Escrow Agent
has not received a written objection to such disbursal within five
(5) days after such notice, then the making of such disbursal shall
discharge Escrow Agent of all further duties and liabilities
hereunder with regard to the Earnest Money. In the event that any
party disputes the proposed disbursal and Escrow Agent is unable to
resolve the dispute, then Escrow Agent may tender the Earnest Money
(less any costs incurred by Escrow Agent for doing so) into a court
of competent jurisdiction which shall discharge Escrow Agent of all
further duties and liabilities hereunder with regard to the Earnest
Money. If this Agreement is terminated by Purchaser for
any reason permitted under this Agreement, Escrow Agent shall
immediately refund the Earnest Money to Purchaser, and no party
hereto shall have any further rights or obligations hereunder,
except with respect to the indemnities contained herein.
(c) The
parties hereto agree Escrow Agent is acting solely as a stakeholder
at their request and for their convenience, that the Escrow Agent
shall not be deemed to be the agent of either of the parties in
Escrow Agent’s capacity as escrow agent hereunder, and Escrow
Agent shall not be liable to either of the parties for any action
or omission on Escrow Agent’s part taken or made in good
faith, but Escrow Agent shall be liable for its acts of bad faith,
in breach of this Agreement or gross negligence or willful
misconduct. Seller and Purchaser shall jointly and
severally indemnify and hold the Escrow Agent harmless from and
against all costs, claims and expenses, including without
limitation reasonable attorneys’ fees, incurred in connection
with the performance of the Escrow Agent’s duties hereunder,
except with respect to actions or omissions taken or made by the
Escrow Agent in bad faith, in breach of this Agreement or involving
gross negligence or willful misconduct on the part of the Escrow
Agent.
4.
TITLE. Seller agrees to convey good and
marketable fee simple title to the Property to Purchaser by limited
warranty deed. Good and marketable fee simple title is
hereby defined as title which is insurable by a national title
company (the “Title Company”) at its standard rates on
an ALTA Owner Policy and in the amount of the Purchase Price,
without exception other than the following "Permitted Title
Exceptions": (a) zoning ordinances affecting the
Property; (b) general utility, sewer and drainage easements of
record upon which any buildings in the Property do not encroach;
(c) subdivision restrictions of record; (d) current city, county
and state ad valorem property and sanitary taxes not yet due and
payable; and (e) leases and other easements, restrictions and
encumbrances specified in this Agreement or on Exhibit
“B” attached hereto and incorporated herein by
reference. Purchaser shall have thirty (30) calendar days following
the execution of this Agreement to examine title to the Property
and to furnish Seller with a written statement of objections
affecting the marketability or insurability of said title, other
than the Permitted Title Exceptions ("New Title Objections").
Seller shall then have up to fifteen (15) calendar days after
receipt of Purchaser’s written notice of New Title Objections
in which to correct any such New Title Objections, and Seller
agrees that it shall take all reasonable measures, including the
payment of money, to satisfy all New Title Objections. If Seller
fails or refuses to satisfy any such objections, then, at the
option of Purchaser, (i) the Closing Date shall be extended by
agreement between the parties for a reasonable time for Seller to
satisfy such objections, (ii) Purchaser may waive its objections
and proceed to Closing and the matters not cured shall become
permitted encumbrances on the warranty deed, or (iii)
Purchaser may terminate this Agreement and Escrow Agent shall
immediately return all Earnest Money to Purchaser. The
Closing Date will be deferred as necessary to comply with this
Paragraph 4 should Purchaser elect option (i) and the Financing
Contingency shall apply to any such closing date
deferral. Seller shall deliver to Purchaser within ten
(10) calendar days following the Execution Date a copy of all title
policies and surveys for the Property in Seller’s possession
or control, together with copies of all documents which appear as
exceptions to title in said title insurance policies. Seller and
Purchaser agree that such papers as may be necessary or appropriate
to carry out the terms of this Agreement shall be produced,
executed, and delivered by such parties at the times required to
fulfill the terms and conditions of this Agreement.
5.
INSPECTION. Commencing as of the Execution Date,
Purchaser, its agents, or representatives, at Purchaser’s
expense and at all times before Closing, shall have the right
during regular business hours (or such other times as approved by
Seller from time to time) to enter upon the Property for the
purpose of inspecting, examining, doing borings, environmental
studies testing, and surveying the Property. Seller
shall deliver to Purchaser, within five (5) calendar days following
the Execution Date, all information it has in its possession or
control with respect to the Property, including without limitation,
engineering reports, soil tests and environmental tests, reports,
studies and audits. Purchaser shall have a thirty (30)
day period (the "Due Diligence Period") after the Execution Date
during which to decide whether in its sole and absolute discretion
the Property is satisfactory for Purchaser's
acquisition. Purchaser shall have the right to terminate
this Agreement by sending Seller on or before the end of the
Inspection Period, a written termination notice and the Earnest
Money shall be completely refundable to Purchaser during the entire
length of the Inspection Period. Purchaser shall and
does hereby agree to indemnify, defend and hold harmless Seller and
Brokers or others from any loss or damages as a result of the
exercise by Purchaser of the rights herein granted, including any
damage resulting from the negligence of Purchaser or
Purchaser’s agents, employees or contractors. This
indemnity shall survive the rescission, cancellation, termination
or consummation of this Agreement.
6.
CLOSING. The closing date ("Closing Date") shall occur upon
the earlier of within fifteen business days following the funding
of the Solid Waste Facilities Revenue Bonds closing or by February
28, 2009. The consummation of the sale contemplated
hereby (the "Closing") shall be at the office of Escrow
Agent or any other mutually agreed upon location at a
specified time on a date designated by Purchaser to Seller at least
five (5) calendar days prior to the Closing Date, unless extended
pursuant to the terms of this Agreement. Seller shall deliver, and
Purchaser shall take, possession of the Property on the Closing
Date. Purchaser shall pay all recording costs of this
transaction including document recording costs, all intangible
taxes and Purchaser’s attorneys’
fees. Seller shall pay the State of Georgia Real Estate
Transfer Tax on the Warranty Deed from Seller to Purchaser. Real
estate taxes based upon the most recent assessment for the Property
shall be prorated as of the Closing Date for the calendar year in
which the sale is closed. If the proration is incorrect by more
than five percent (5%) based on the actual tax bill when issued,
the party receiving the excess proration shall promptly reimburse
the other to correct the misallocation upon receipt of written
notice. All unpaid assessments and annual special charges
applicable to the Property outstanding at Closing, including those
arising between the Execution Date and the Closing Date, shall be
paid at Closing by Seller, irrespective of when the same shall be
due and payable. If the Property is assessed as a part of a larger
tract, a sum sufficient to pay the entire tax bill for the larger
tract when due shall be deposited at Closing with an escrow agent
selected by Purchaser. The estimated portion of the entire tax bill
allocable to the Property shall be prorated by dividing the total
tax bill by the number of acres in the larger tract and multiplying
the result thereof by the number of acres contained in the
Property. Seller and Purchaser shall each deposit their
share of the total tax bill for the Property with the Escrow
Agent.
7.
SURVEY. Purchaser may, at Purchaser's expense,
cause an accurate survey to be made of the Property by a Georgia
Registered Land Surveyor of Purchaser's choice prepared in
accordance with no less than the minimum standards of the State of
Georgia for surveys and land surveyors. The survey shall
certify the number of acres contained within the Property, computed
to the nearest 100th of an acre, including such portions of the
Property as may be within all right-of-way for public use, any
portion of the Property lying within the 100-year flood plain,
easements of any type or description, cemeteries, or otherwise
legally undevelopable area, and the location of all buildings,
structures, fences and other improvements situated on the
Property. The survey shall also include acreage
contained within any proposed road or right-of-way widenings, or
any other taking, of which any entity having the power of eminent
domain has given notice or any land required to be dedicated as a
condition of a rezoning or obtaining building permits or curb cuts
for the Property. The survey shall be sufficient in form and
content so that the Title Company will delete the standard survey
exception from its title insurance policy to be issued to
Purchaser. Prior to Closing Purchaser may deliver three copies of
the survey to Seller. In the event the survey discloses any matters
other than Permitted Title Exceptions to which the Purchaser
objects, such matters shall be deemed to be New Title Objections
and the provisions of Paragraph 4 above shall apply. If
the survey is reasonably unacceptable to Seller, then Seller may,
within five (5) calendar days after receipt of Purchaser's survey,
notify Purchaser that the survey is unacceptable setting out all of
Seller's reasons for such objections, and Seller shall appoint (at
Seller's expense) a second surveyor who shall attempt to resolve
with Purchaser's surveyor the discrepancies with or objections to
the survey of which Seller has notified Purchaser. In
the event the two surveyors are unable to resolve such matters,
then Purchaser shall have the right to terminate this Agreement and
the Earnest Money shall be immediately refunded to
Purchaser. In the event the survey shows a legal
description that is different from Exhibit “A”, Seller
will execute a quit-claim deed with respect to the legal
description drawn from the survey. Notwithstanding the
foregoing, Seller shall provide Purchaser with the most recent
survey within five (5) days of the execution of this
Agreement.
8.
TIME. Time is of the essence with respect to
this Agreement.
9.
BROKER. In negotiating this Agreement, CB
Richard Ellis ("CBRE") and _Empire South Commercial Real
Estate_(“Empire South”) (collectively,
“Brokers”) have rendered a valuable service for which
reason Brokers are made a party hereto in order to enable Brokers
to enforce its commission rights hereunder. Empire South
will be compensated outside of closing detailed in a separate
agreement. Brent Weitnauer with CBRE acted as agent for
the Purchaser in this transaction, and _Jon Sarnat with Empire
South_ has acted as agent for the Seller. Notwithstanding
Brokers’ agency relationships, it is agreed by all parties
hereto that Seller shall pay CBRE a commission (the
“Commission”) in cash at Closing in the amount
of Twenty Six Thousand Seven Hundred Fifty Thousand
Dollars ($26,750.00). If closing occurs on or before
January 31 st 2009 CBRE will be paid an additional Five
Thousand Dollars ($5000) totaling Thirty One Thousand Seven Hundred
Fifty Thousand Dollars ($31,750.00) from the proceeds of the
Purchase Price. Brokers acknowledge that they will not
be entitled to a commission in the event that the Closing does not
occur for any reason whatsoever, including default by Purchaser or
Seller, and that Purchaser has no obligation to Brokers for payment
of any commission arising out of the execution and delivery of this
Agreement or the sale and conveyance contemplated
hereby. Purchaser, Seller and Brokers each hereby
represent and warrant to each other that no party other than any
named herein is entitled as a result of the actions of Seller,
Purchaser or Brokers, as the case may be, to a real estate
commission or other fee resulting from the execution of this
Agreement or the transactions contemplated hereby, and Seller,
Purchaser and Brokers hereby agree to indemnify, defend and hold
each other harmless from and against any and all costs, damages and
expenses, including reasonably incurred attorneys’ fees,
resulting directly or indirectly from any such claim arising out of
the actions of or contact with Seller, Purchaser or Brokers, as the
case may be. These representations, warranties and indemnifications
shall survive the rescission, cancellation, termination or
consummation of this Agreement. Brokers agree to execute
and deliver such affidavits and documents as may be required in
order to conform to the requirements of O.C.G.A. §
44-14-600. Purchaser or its principals are or may be
licensed real estate brokers or salesmen in the state of
Georgia.
10.
CONDITION OF PROPERTY. Seller warrants that at
Closing the Property and title to the Property will be in
the
