Exhibit 10.2
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Standard
Form
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State of
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REPSC - Over
$25,000
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FDIC Asset No.
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Master -
2009
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REAL ESTATE PURCHASE AND SALE
CONTRACT
(Instructions throughout the
contract are in italics in “( )”
brackets.)
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1.
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PARTIES: This:
Real Estate Purchase And Sale Contract (the “ Contract
”) is entered into by and between the Federal Deposit
Insurance Corporation , in the following
capacity(ies):
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x
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Receiver of
ALPHA BANK & TRUST,
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¨
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in its
Corporate capacity.
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¨
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Manager of the
FSLIC Resolution Fund.
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¨
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Manager of the FSLIC Resolution Fund as Receiver of
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¨
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other
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hereafter referred to as “ Seller
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and GWINNETT CLINIC, LTD. (check
one) ¨ an individual, or x a state of Georgia corporation (“
Purchaser ”).
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2.
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PROPERTY: That
certain tract or parcel of land described on ATTACHMENT A
affixed hereto and incorporated herein, which parcel of land is to
be sold together with all buildings and other improvements,
situated thereon, all fixtures and other property affixed thereto
and all and singular the rights and appurtenances pertaining to the
property, including any right, title, and interest of Seller in and
to adjacent streets, alleys or rights-of-way (the “
Property ”).
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3.
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PURCHASE PRICE:
Subject to the terms, provisions, covenants and conditions herein
contained, Seller hereby agrees to sell and convey and Purchaser
hereby agrees to purchase the Property for the purchase price of
One Million Six Hundred Thousand and no/100 dollars ($
1,600,000.00) (the “ Purchase Price ”), to be
paid in CASH at Closing (as defined in Section 11),
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4.
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EARNEST MONEY: An earnest money
deposit in the amount of Eighty Thousand and no/100 dollars
($80,000.00) (the “ Earnest Money ”), equal to
the greater of (a) five percent (5%) of the Purchase
Price or (b) two thousand dollars ($2,000.00), is herewith tendered
by Purchaser and is to be held by Seller. The Earnest Money will be
in the form of cash, a cashier's check, or certified funds payable
to Seller. The Earnest Money will NOT bear interest at any time. If
the sale hereunder is consummated in accordance with the terms
hereof, the Earnest Money, will be applied against the Purchase
Price at Closing. In the event of default hereunder by Purchaser,
the Earnest Money will be applied as provided
: in Section 16.
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5.
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SURVEY: If
Seller already has in its records a survey of the Property obtained
in the normal course of its business, Seller will provide a copy of
same to the Purchaser. In no event will Seller be required to
furnish a current survey of the Property.
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6.
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TITLE COMMITMENT AND TITLE
POLICY: As soon as practicable after the Effective Date (as defined
in Section 26), Seller will furnish Purchaser a Title
Commitment from a title insurance company chosen by Seller and
reasonably acceptable to Purchaser (the “ Title
Company ”). At Closing, Seller will provide Purchaser a
Title Policy in the full amount of the Purchase Price.
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Purchaser will have five
(5) days after receipt of the Title Commitment to make written
title and survey
REPSC\Over $25,000 – Master –
(2-13-2009)
1
objections to Seller (the “
Objections ”). Objections must be limited to matters
which substantially and adversely affect title to the Property. If
Purchaser does not give Seller written notice of Objections within
the time period specified. Purchaser will have waived the right to
raise Objections, will accept any and all deficiencies without
postponement of Closing (as defined in Section 11), and will
close under the terms of the Contract.
If Purchaser timely delivers
Objections to Seller. Seller will have until the Closing Date (as
defined in Section 11) to cure same. Seller has the right, in
its sole discretion, to extend the Closing Date up to ninety
(90) days from the original Closing Date in order to resolve
Objections (the “ Extended Closing Date ”).
Seller's intention to extend must be provided in writing to
Purchaser on or before the Closing Date.
Seller may notify Purchaser at any
time that Seller declines to cure one or more of the Objections.
Purchaser has five (5) days from the receipt of such
declination to make the election described below. If Seller fails
to give notice of declination and fails to cure any of the
Objections by the Closing Date or the Extended Closing Date, as
applicable, Purchaser has five (5) days after such Closing
Date or Extended Closing date, as applicable, to make the election
described below. The election Purchaser has, in either event
described above, is to either (i) terminate the Contract and
obtain the Earnest Money per Section 16 of this Contract, or
(ii) waive the unsatisfied Objections and complete the purchase
under the terms of this Contract. Failure by the purchaser to make
an election within the time frame specified in this paragraph will
be treated as an election of option (i) above.
INSPECTION PERIOD: Purchaser will
have a period of ten (10) days from and after the Effective
Date to examine the Property and to conduct such physical tests,
inspections, surveys, and other investigations as are reasonably
necessary to determine whether the Property is suitable for
Purchaser’s intended purpose (the “ Inspection
Period ”). Seller shall use reasonable efforts to provide
to Purchaser copies of any of the following items which Seller has
in its possession and which are readily available to Seller:
surveys, title policies, environmental reports and other due
diligence materials related to the Property (collectively, the
“Reports”). Purchaser acknowledges and agrees that
Seller makes no representations whatsoever regarding the validity
of the content or form of any of the Reports. In furtherance of,
and in no way limiting the any disclaimers of Seller contained in
the Contract, Purchaser acknowledges and agrees that Seller shall
have no liability whatsoever for the Reports and/or the
Purchaser’s reliance on the Reports. Notwithstanding the
above, (a) Purchaser will give Seller reasonable notice of
Purchaser’s intention to enter onto the Property;
(b) Purchaser must obtain written approval from Seller before
Purchaser conducts any tests on the Property; and (c) Seller
may require that a representative of the Seller accompany Purchaser
or its agents while they are on the Property. Purchaser’s
tests and other inspections will not unreasonably interfere with
the use and occupancy of the Property by Seller or Seller’s
tenants. In the event that the transaction contemplated by this
Contract does not close for any reason. Purchaser is obligated to
restore the Property to its condition prior to Purchaser’s
entry. This obligation will survive termination of this Contract.
Purchaser will pay for all such tests and inspections.
A copy of every report of every test
and inspection conducted by Purchaser on the Property, including
but not limited to, any survey and any Environmental Report or
Environmental Site Assessment, will be delivered to Seller within
five (5) days after such report is received by Purchaser.
Purchaser agrees to indemnify Seller, hold it harmless from, and
defend it against any claims, causes of action, damages and
expenses (including attorney’s fees) in any way arising out
of (a) Purchaser’s or Purchaser’s agents’
presence on or about the Property, or (b) any test or
inspection conducted by Purchaser on the Property. Such indemnity
will survive the closing or any termination of this Contract and
will not be merged therein.
If Purchaser reasonably determines
that the Property is unsuitable for Purchaser’s intended
purpose. Purchaser may terminate this Contract by delivery of
written notice to Seller prior to the expiration of the Inspection
Period. In such event the Earnest Money will be returned to the
Purchaser, and thereafter neither party will have any further
rights or obligations under this Contract.
Should Purchaser fail to terminate
the Contract prior to the expiration of the Inspection Period,
Purchaser will be obligated to close the transaction without
postponement of the Closing Date, under the terms of this Contract.
Any termination of this Contract by Purchaser after the expiration
of the Inspection Period will entitle Seller to retain the Earnest
Money as liquidated damages as provided in
Section 16.
REPSC\Over $25,000 – Master –
(2-13-2009)
2
CONVEYANCE OF TITLE: Seller will
convey the Property by Special Warranty Deed (the “
Deed ”) subject to all easements, rights-of-way,
exceptions, covenants, conditions, restrictions, encroachments,
reservations, encumbrances, access limitations, and all other
matters or conditions affecting the Property (including any
Objections Seller has declined to cure and Purchaser has waived,
per Section 6 above). Any personalty that may be owned by
Seller that is situated on the Property at Closing will be conveyed
to Purchaser by Quitclaim Bill of Sale.
PROPERTY CONDITION: PURCHASER, BY
ITS EXECUTION HEREOF, ACKNOWLEDGES THAT:
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(i)
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SELLER HAS
NOT MADE, DOES NOT MAKE, AND SPECIFICALLY NEGATES AND DISCLAIMS,
ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS,
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER - WHETHER EXPRESS
OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, OR FUTURE - AS TO
(a) THE VALUE, NATURE, QUALITY, OR CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY,
(b) THE INCOME TO BE DERIVED FROM THE PROPERTY, (c) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY CONDUCT THEREON, (d) THE PROPERTY’S
COMPLIANCE WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (e) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (f) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY, (g) THE MANNER, QUALITY, STATE
OF REPAIR, OR LACK OF REPAIR OF THE PROPERTY, OR (h) ANY OTHER
MATTER WITH RESPECT TO THE PROPERTY OTHER THAN THE WARRANTIES OF
TITLE IN THE SPECIAL WARRANTY DEED, IF SUCH SPECIAL WARRANTY DEED
IS ISSUED. SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION, OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS, OR REQUIREMENTS, INCLUDING THE DISPOSAL OR
EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS
MATERIALS.
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(ii)
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PURCHASER
HAS FULLY INSPECTED THE PROPERTY AND THAT THE CONVEYANCE AND
DELIVERY OF THE PROPERTY IS “AS IS” AND “WITH ALL
FAULTS.”
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(iii)
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NO WARRANTY
HAS ARISEN THROUGH TRADE, CUSTOM OR COURSE OF DEALING WITH
PURCHASER. PURCHASER REPRESENTS THAT, PURSUANT TO THE INSPECTION
PERIOD (IF ANY), PURCHASER HAS MADE (OR HEREBY WAIVES):
(a) ALL INSPECTIONS OF THE PROPERTY DEEMED NECESSARY OR
APPROPRIATE BY PURCHASER TO DETERMINE THE PROPERTY’S VALUE
AND CONDITION, INCLUDING, WITHOUT LIMITATION, INSPECTIONS FOR THE
PRESENCE OF ASBESTOS, PESTICIDE RESIDUES, UNDERGROUND STORAGE
TANKS, HAZARDOUS WASTE, AND ANY OTHER HAZARDOUS MATERIALS, AND
(b) ALL INVESTIGATIONS TO DETERMINE WHETHER ANY PORTION OF THE
PROPERTY LIES WITHIN ANY FLOOD HAZARD AREA AS DETERMINED BY THE
U.S. ARMY CORPS OF ENGINEERS OR OTHER APPLICABLE AUTHORITY.
PURCHASER’S INSPECTION OF THE PROPERTY (OR WAIVER THEREOF)
WILL RELIEVE SELLER OF ANY LIABILITY TO PURCHASER AS A RESULT OF
ANY ENVIRONMENTAL HAZARD ON OR TO THE PROPERTY AND PURCHASER
ACCEPTS ALL LIABILITY THEREFOR, AS BETWEEN
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REPSC\Over $25,000 – Master –
(2-13-2009)
3
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PURCHASER AND SELLER, AND
INDEMNIFIES AND HOLDS SELLER HARMLESS FROM AND AGAINST ANY CLAIMS,
LIABILITIES, DEMANDS, OR ACTIONS INCIDENT TO, RESULTING FROM, OR IN
ANY WAY ARISING OUT OF SUCH HAZARD. THIS INDEMNITY SURVIVES CLOSING
AND WILL NOT BE MERGED WITH THE SELLER’S DEED.
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10.
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BROKER’S
FEE: By separate document, Seller has agreed to pay a real estate
commission (the “ Commission ”) in the amount of
three percent (3%) of the Purchase Price to be split equally
between JWB Realty Services, LLC and Solid Source Realty
(collectively, the “ Broker ”), subject to the
closing of this sale and payment of the full Purchase Price to
Seller. The parties acknowledge that JWB Realty Services, LLC
represents Purchaser and not the Seller in this transaction, and
that Solid Source Realty represents the Seller and not the
Purchaser in this transaction. It is understood and agreed that no
commission shall be due hereunder in the event the Closing does not
occur for any reason whatsoever. Purchaser and Seller each hereby
indemnifies the other against and agrees to hold harmless the other
from any and all claims for real estate commissions or similar fees
arising out of or in any way connected with any claimed agency
relationship with the indemnitor and relating to the purchase and
sale of the Property contemplated by this Agreement or any
cancellation or termination of this Agreement. At Closing, each
Broker shall each execute and deliver a final and unconditional
waiver and release of any lien rights they may have against the
Property pursuant to the Commercial Real Estate Broker Lien Act,
O.C.G.A. § 44-14-600, et seq.
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11.
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CLOSING: The
closing and funding of this sale (the “ Closing
”) will be on or before thirty (30) days from the
expiration of the Inspection Period (the “ Closing
Date ”). Should the Closing Date fall on a Saturday,
Sunday, or legal holiday, Closing will occur on the first business
day thereafter. The Closing will take place at the office of the
Title Company or, at Seller’s option, at the office of
Seller. If either party fails to close the sale under the terms of
this Contract, the non-defaulting party will be entitled to
exercise the remedies provided in Section 16. Any extension of
the Closing Date must be in writing and executed by Purchaser and
Seller in advance of the scheduled Closing Date, except in the case
of the Seller's unilateral extension of the Closing Date as
described in Section 6.
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12.
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POSSESSION:
Possession of the Property in its condition existing at the date of
execution hereof, ordinary wear and tear excepted, will be
delivered to Purchaser at Closing, subject to the rights or claims
of parties in possession or vendors thereto. Delivery of the Deed
by Seller and acceptance of the Deed by Purchaser will evidence the
assignment by Seller and assumption by Purchaser of all written or
oral agreements for lease of the Property and contracts in effect
as of the Closing Date. From and after Closing, Purchaser will
defend, indemnify, and hold Seller harmless from and against all
claims, demands, and actions arising under such leases or
contracts,
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13.
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CLOSING COSTS:
Seller will pay the cost of (i) preparation of the Deed and
all other conveyance documents, (ii) one-half of the escrow
fees charged by the Title Company, (iii) the premium for the Title
Commitment and Title Policy, (iv) transfer tax due on the
conveyance of the Property; and (iv) Seller’s
attorneys’ fees. Seller will cause any mortgages, deeds of
trust, or other monetary liens recorded against the Property to be
released, unless it elects not to cure according to Section 6
above. All other costs and expenses incurred in connection with the
sale of the Property will be paid by Purchaser.
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14.
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PRORATIONS: At
Closing, Seller will deliver or credit to Purchaser all tenant
security deposits then actually held by Seller. Seller will have
no responsibility for security deposits not held by Seller at
Closing. All prepaid rents, prepaid expenses, and accrued but
unpaid expenses incurred in connection with the operation or
maintenance of the Property will be prorated between Purchaser and
Seller as of the Closing Date. Seller will be credited at Closing
with the amount of any and all deposits held on behalf of Seller by
utility companies with respect to the Property. All ad valorem
taxes and assessments assessed against the Property will be
prorated between Seller and Purchaser as of the Closing Date. Any
proration will be final and not adjustable unless Seller challenges
the assessed value of the Property for the year of Closing. If such
challenge results in a reduction of the taxes for the year of
Closing, then Seller will (i) notify Purchaser,
(ii) provide Purchaser a recalculation of the proration based
on the revised taxes, and (iii) provide Purchaser evidence of
Seller’s costs
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REPSC\Over $25,000 – Master –
(2-13-2009)
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in challenging that year’s
assessment. Within fifteen (15) days of receipt of such notice
and information, Purchaser will reimburse Seller for (i) the
difference between the Seller’s proration at Closing and the
Seller’s revised proration, plus (ii) Purchaser’s
pro rata share of Seller’s costs in challenging that
year’s assessment. Notwithstanding the above. Purchaser
will be responsible for all ad valorem taxes, interest, penalties,
court costs, title costs, and attorney fees that become due as a
result of (a) the transfer of the Property, (b) a
subsequent change in the use of the Property, or (c) the
omission of assessments on improvements. There will be no proration
of the taxes discussed in the immediately preceding sentence
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15.
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CASUALTY LOSS:
In the event of damage or destruction of the Property by fire or
other casualty prior to the Closing Date, which results in a loss
exceeding twenty percent (20%) of the Purchase Price.
Purchaser, within five (5) days of notice from Seller of the
occurrence of such event, may either (i) receive the insurance
proceeds payable as a result of the event and consummate the
transaction in accordance herewith, or (ii) terminate this
Contract. In the event of termination of this Contract the Earnest
Money will be returned to Purchaser. Thereafter neither party
hereto will have any further rights or obligations under this
Contract.
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16.
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DEFAULT: If
Purchaser fails to perform any of his obligations hereunder.
Seller’s exclusive remedy for such default is
(a) termination of this Contract by written notice to the
Purchaser, and (b) retention of the Earnest Money as
liquidated damages. If Seller fails to perform any of its
obligations hereunder, Purchaser’s exclusive remedy for such
default is (a) termination of this Contract and liquidated
damages as follows: (i) refund of the Earnest Money, and
(ii) reimbursement by the Seller of Purchaser’s
documented out-of-pocket expenses, not to exceed $1,000.00. The
liquidated damages specified in this Section are not penalties,
rather they are reasonable estimates of the cost to the Seller of
holding the Property off the market, and the cost to the Purchaser
of the lost transaction
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17.
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PROHIBITED
PURCHASER: Purchaser acknowledges that certain persons are
prohibited from purchasing assets from Seller. Purchaser also
acknowledges that under certain circumstances. Seller will not sell
assets to certain persons. Accordingly, prior to the execution
hereof, Purchaser has completed and executed the Purchaser
Eligibility Certification (the “ PEC ”) attached
here to as ATTACHMENT B . Purchaser represents and warrants
that the completed PEC is true and correct, and acknowledges that
Seller is relying on the truth and accuracy of the completed
PEC.
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Any incorrect information on the PEC
will constitute a breach of this Contract by the Purchaser. Should
the Seller determine prior to Closing that any portion of the
Purchaser’s completed PEC is incorrect. Seller may terminate
the Contract and retain the Earnest Money per Section 16 of
this Contract and may pursue other sanctions provided by
law.
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18.
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CONFIDENTIALITY: Prior to the execution of the
Contract, at the sole discretion of the FDIC. Purchaser is required
to complete and execute the Confidentiality Agreement attached
hereto as ATTACHMENT C . Any breach of the Confidentiality
Agreement by Purchaser will be a default hereunder, as provided in
Section 16.
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19.
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ATTORNEYS’ FEES: In any legal proceeding
brought under or with relation to this Contract, the prevailing
party will be entitled to recover court costs and reasonable
attorneys’ fees from the non-prevailing party.
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20.
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AUTHORITY TO
EXECUTE: Only an FDIC employee who is an Attorney-in-Fact for the
FDIC acting in the capacity stated in Section 1 is authorized
by the FDIC to execute this Contract.
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21.
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SURVIVAL:
Sections 9, 10, 14, 23 and 27 of this Contract will survive the
Closing and the delivery of the Deed and other conveyance documents
from Seller to Purchaser. All of the terms and conditions of
Sections 9, 10,14, 23, and 27 will be and remain in full force and
effect between the parties hereto.
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22.
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MODIFICATION:
This Contract supersedes any and all prior discussions,
communications, and agreements between the Seller and the
Purchaser, if any, with respect to the purchase of the Property and
other matters contained herein. This Contract contains the sole and
entire understanding between the parties hereto with respect to the
transaction contemplated herein. This Contract will not be modified
or amended except in writing executed by the Purchaser and
Seller.
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REPSC\Over $25,000 – Master –
(2-13-2009)
5
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23.
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APPLICABLE LAW:
This Contract will be governed by and construed and enforced in
accordance with the laws of the United States of America, and to
the extent that state law would apply under applicable federal law,
the state in which the Property is located.
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24.
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TIME: Time is
of the essence of this Contract.
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25.
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NOTICES: All
notices, requests, demands, or other communications required or
desired to be given hereunder will be in writing and either
delivered by (a) hand, (b) telecopier, (c) overnight
delivery service, or (d) certified mail, return receipt
requested, postage prepaid, to the addresses in the signature
section below, and will be deemed given two (2) days after the
date mailed, if mailed, one (1) day after the date sent, if
sent by overnight delivery service, and on the day delivered if
delivered personally to the address set forth or by telecopier to
the facsimile (fax) number also set forth below.
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26.
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EFFECTIVE DATE:
The effective date of this Contract (the “ Effective
Date ”) will be the date upon which the last party to
sign executes this Contract.
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27.
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CONSTRUCTION:
Unless Stated otherwise, the words “day” or
“days” refer to calendar days. Pronouns are used
interchangeably herein to refer to masculine, feminine, or neuter
antecedents. Purchaser waives the presumption that ambiguities, if
any, will be construed against the drafting party. This Contract
will be construed liberally and not in favor of the non-drafting
party.
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28.
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ATTORNEY
CONSULTATION: The parties acknowledge and agree that this is
intended to be a legally binding contract. T
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