EXHIBIT 10.10
STATE OF SOUTH CAROLINA )
)
CONTRACT OF SALE AND PURCHASE
COUNTY OF GREENVILLE
)
THIS CONTRACT
OF SALE AND
PURCHASE (hereinafter referred to as the
"Agreement") is made
and entered into as of the date this Agreement is executed
by both the
hereinbelow defined
Seller and Purchaser and an executed original
thereof is delivered to Purchaser (the "Effective Date") by and among Church at
Hampton, LLC c/o
Charles B. Stone,
(hereinafter referred
to as "Seller")
and
First South Bank and/or assigns (hereinafter referred to as
"Purchaser").
WITNESSETH:
In consideration of the mutual covenants and agreements set forth
below
to be kept and performed, the hereinbelow defined Earnest
Money, and other good
and valuable
consideration
passing between the parties, the receipt and
sufficiency of which is hereby acknowledged, the parties covenant
and agree that
Seller shall sell to Purchaser, and Purchaser shall purchase from Seller,
the
Property described
below for the price and upon the terms and conditions
specified herein:
1.
THE PROPERTY. Seller agrees to grant, sell, convey, assign,
transfer and
deliver to Purchaser
and Purchaser
agrees to purchase,
acquire and take
from
Seller:
(a)
The property
containing
approximately
0.907 acres commonly
known as
tax map # 0188010901201 located at 1680 North Church Street in
Greenville, South
Carolina, being more particularly described on
EXHIBIT A attached
hereto and
incorporated herein by
reference (the
"Land"); and
(b)
All improvements situated upon and to the Land including, but not
limited to, a two story brick building containing 7650 square feet to
be determined by final
as-built drawings
completed and
delivered to
the purchaser within ten (10) business days from the execution of
this
agreement (the "Building") located on the above described land;
and
(c)
All personal property
(the "Personal Property") situated upon the land
(including, without limitation, fixtures to the Building; and
(d)
Together with all easements and rights-of-way (including, without
limitation, for
parking, ingress,
egress and access),
hereditaments
and appurtenances
thereunto belonging or in any way
appertaining to
the Land.
All of the property and rights described in (a), (b), (c) and (d)
above
are hereinafter collectively referred to as the "Property".
2. EARNEST MONEY.
Within Five (5) business day after Purchaser's receipt of a
fully executed original of the Agreement from Seller, Purchaser
shall deliver to
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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 Ten Thousand and No/100 Dollars
($10,000.00),
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 each
capitalized term
is
hereinafter defined).
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 the settlement agent disbursing funds at Closing.
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),
Federal Express or other reputable
national overnight delivery service, 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 abjection
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
Seller 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 Seller 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 Seller and if
Escrow Agent's
duties hereunder are affected,
unless Escrow Agent
shall have
given prior written consent thereto. The Seller 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.
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4.
PURCHASE PRICE. The total purchase price (hereinafter referred to
as the
"Purchase Price") for the Property shall be One Million One Hundred
Thousand and
No/100 Dollars
($1,100,000.00),
which shall be paid by
the purchaser by cash,
wire transfer or certified check at Closing.
5.
DOCUMENTS. Within ten
(10) days after the Effective Date hereof, Seller
shall provide
Purchaser with copies of the following documents reasonably
available to Seller:
(a)
Any boundary, topographic or other surveys or plats of the
Property
and all environmental
studies, engineering
studies or reports,
soil
tests or similar reports on the Property, if any;
(b)
Any title insurance
policy or policies on the Property;
(c)
A true and complete
copy of all Service Agreements (hereafter defined)
(including, but not
limited to any
landscaping
contract, dumpster
contract and/or
janitorial contract)
for the Property
including all
amendment thereto;
(d)
Copies of all as-built
construction,
architectural
and engineering
drawings of the Property or any portion thereof;
(e)
Copies of any
documents relating to
any obligations
which have been
incurred directly or
indirectly by the
Property's owner for
which a
new owner would be responsible or must comply with, including, but
not
limited to any
commissions payable
after Closing, any real estate
management or leasing
contracts,
including but not limited to, the
Personal Property, etc.;
(f)
Tax bills for the
Property including, but not limited to, the Personal
Property, for year 2006;
(g)
A detailed written description of any current problems with the
Property which are known to Seller, such as, building and roof
leaks,
utility systems and
equipment,
structural or
foundation
problems.
Additionally,
Seller shall
provide
Purchaser
with
a written
description of
any maintenance (excluding
routine
grounds
maintenance), repair,
or replacement work, the cost of which was
greater
than $1,000.00;
(h)
Copies of any and all documentation, if any, relating to any
government or municipal codes, regulations or ordinances
violation of
the Property or its operation, of which Seller has received
notice;
(i)
Copies of all
documents relating to any notice which Seller has
received from government or municipal agency, any utility provider or
adjoining land owner,
which may have any
future impact on the access
to the Property
or any future impact on utility services for the
Property; and
(j)
A list/inventory of
all of the Seller's
Personal Property
associated
with the operation of the Property as of the Effective Date, if
any.
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(k)
Current Common Area
Maintenance charge list (if any).
(l)
Copies of all
environmental reports, studies and assessments performed
or rendered with respect to or in connection with the Property or any
part thereof (including, without limitation any part of the
Building).
(m)
Copies of all
insurance policies
insuring against
hazard or casualty
loss currently
held by Seller, as insured, with respect to the
Property
(including,
without limitation,
with
respect to the
Building).
6.
INSPECTION
PERIOD. Purchaser shall have thirty (30) days after the
Effective Date of this
Agreement (hereinafter
referred to as the
"Inspection
Period") to make all
inspections Purchaser
may deem necessary and to determine
if the Property is satisfactory for its needs including, but not
limited to, all
aspects of the operation of the Property and all documents and
records relating
to the operation
of the Property in the Seller's possession or reasonably
obtainable by Seller. In the event Purchaser determines within said thirty
(30)
day Inspection Period that the Property does not meet its needs, or
Purchaser is
not satisfied in its sole discretion with any of the
inspection results,
then
Purchaser shall so
notify Seller in
writing prior to the expiration of the
Inspection Period and
this Agreement
may be canceled by
Purchaser and, if
so
canceled, shall be
deemed null and void and Purchaser's Earnest Money shall be
immediately refunded to Purchaser.
During the Inspection
Period and
thereafter
if Purchaser does not
terminate this Agreement pursuant to the foregoing paragraph, Purchaser and/or
Purchaser's agents,
employees and/or
contractors shall have the right to enter
upon the Property
during normal
business hours with 24~hour prior notice to
conduct such
inspections, tests and
studies as Purchaser
may deem
necessary,
provided:
(a)
Such inspections,
tests and studies shall not damage the Property; and
(b)
Purchaser shall leave the Property in not
materially worse
condition
as it was prior to the entry onto the Property by Purchaser or its
agents, employees or contractors or, in the event of any damage to
the
Property (other
than ordinary wear and tear), Purchaser shall
immediately repair and
restore the Property
to its prior
condition.
Purchaser agrees to
indemnify and hold harmless Seller from any loss
or damage, including
reasonable
attorneys' fees,
arising out of the
inspections, tests or studies that Purchaser, its agents or
employees,
may conduct
pursuant to this Section 6 other than any liability
arising out of
the discovery by Purchaser and/or its agent or
contractor of a latent construction defect or an environmental
problem
or condition, or the
obligation of Purchaser and/or its contractor to
warn of or report
any latent structural defect or environmental
condition to a governmental authority. This indemnity shall survive
any early termination of this Agreement and the Closing of the
transaction contemplated hereunder.
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7.
TITLE.
(a)
Seller warrants that
it has good marketable record fee simple title to
the Property
subject only to applicable zoning ordinances and
regulations, taxes for
the current year not yet due and payable, and
utility and drainage
easements; provided,
however, Purchaser shall
accept title
to the Property subject only to such easements as
Purchaser shall
reasonably
determine will not interfere with the
development and operation of the Property as a commercial
development.
Seller shall,
at the closing, convey the Property to Purchaser by
general warranty deed,
with good and marketable title in fee simple,
free and clear of all liens or encumbrances except as set forth
above.
"Good and marketable title", as used herein, shall mean title which
is
insurable by a reputable national title insurance company
(the "Title
Company") at
standard rates on the AL T A form then in use in the
county where
the land lies and with
only the exceptions set forth
above or which are otherwise acceptable to Purchaser (the
"Permitted
Exceptions"). The
availability
of such title insurance shall be
conclusive evidence of
the marketability
of title to the
Property,
and, conversely,
the inability of Purchaser to obtain such
policy
shall be conclusive evidence that title to the Property is not
marketable as required herein.
(b)
Within twenty five (25) days after this
Agreement is executed
by the
parties, Purchaser shall obtain, if available based upon the status
of
Seller's title, a title insurance commitment (the "Commitment")
issued
by the Title
Company to provide a standard AL TA owner's title
insurance policy (the "Title Policy") to Purchaser and shall
forward a
copy of the Commitment
to Seller upon receipt from the Title Company.
Approval as to
all easements and exceptions which show on the
Commitment shall be
deemed given five (5) days after Purchaser's
receipt of the
Commitment
unless on or
before the 5th day of said
period, Purchaser
shall give notice to
Seller that it disapproves an
item or items. In such
case, the removal of
each item so disapproved
shall be a condition to Purchaser's obligation to close. Seller will
have ten (10) days from the receipt of such notice within which to
take steps to cure
such defects. If Seller is unable to cure such
defects within said ten-day period, Purchaser shall have the right
to
terminate this
Agreement and receive
a prompt refund of
Purchaser's
Earnest Money and this
Agreement shall be void and without
further
recourse to the parties. In the alternative, Purchaser may elect to
accept such title as
Seller can deliver to
the Property in its
then
condition and pay the Purchase Price without deduction. At closing,
Seller will execute and deliver an affidavit to the effect that to
the
best of Seller's
knowledge,
there are no
judgments,
bankruptcies,
liens, leases or other claims of any nature whatsoever against or
with
respect to the
Property or
against Seller which would in any way
create an encumbrance
upon the Property (except for the Permitted
Exceptions).
8.
SELLER'S
REPRESENTATIONS AND
WARRANTIES. To induce
Purchaser to enter
into this Agreement
and to purchase the
Property being conveyed hereunder,
Seller makes the
following
representations and
warranties,
each of which is
material and is being
relied upon by the Purchaser and all of which Seller
represents and
warrants are true as of the Effective Date hereof and shall be
true as of the Closing Date:
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(a)
Good and Marketable
Title to Property. Seller now has and will have at
Closing good and indefeasible title in fee simple to the
Property and
no party, except as
herein set forth, has or shall have any right in,
or to acquire, the Property;
(b)
Free of Encumbrances.
At the Closing,
the Property shall be
free and
clear of all encumbrances except Permitted Encumbrances;
(c)
No Actions or Suits.
There are no actions, suits, claims, assessments,
or proceedings
pending or, to the
knowledge of Seller,
threatened,
that could materially
adversely affect the ownership, operation, or
maintenance of the Property or Seller's ability to perform
hereunder;
(d)
Authority of Seller.
Seller has full right,
power, and authority to
execute, deliver,
and perform this
Agreement without
obtaining any
further consents or approvals from, or the taking of any other
actions
with respect to, any third parties and this Agreement, when executed
and delivered by Seller and Purchaser, will constitute the valid and
binding agreement of Seller, enforceable against Seller in
accordance
with its terms;
(e)
Existence of Security
Interest. No uncured breach or default, whether
declared or not, including, without limitation, nonpayment of any sum
or nonperformance of any obligation, exists under, or with regard
to,
any obligation of Seller that is secured by a lien on the
Property;
(f)
No Violation of
Applicable Law. The location, construction, occupancy,
operation, and use of
the Property
does not violate any
applicable
law, statute, ordinance, rule, regulation, order, or determination of
any governmental authority or any board of fire underwriters (or
other
body exercising
similar functions),
or any restrictive
covenant or
deed restriction
(recorded or
otherwise)
affecting the Property,
including, without
limitation,
all applicable zoning
ordinances and
building codes, flood disaster laws, and health and environmental
laws
and regulations (hereinafter sometimes collectively called
"Applicable
Laws");
(g)
Compliance With
Environmental Laws.
(1) Without
limiting Section 6.6 above, Seller further represents
that (i) none of the Property has ever been used by Seller or,
to
the best of
Seller's knowledge (after due inquiry), by any
previous owners,
occupants or the
current lessees,
if any, to
generate, manufacture, refine, transport, treat, store, handle
or
dispose of any Hazardous Substances (as hereinafter defined),
and
no such Hazardous
Substances
exist on the Property
or any part
thereof (including,
without limitation, the Building), or in its
soil or groundwater;
(ii) to the
best of Seller's knowledge
(after due inquiry),
no portion
of the Improvements has been
constructed with asbestos, asbestos contain
