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COUNTY OF XXXXXXX ]
OPTION TO PURCHASE
(AND CONTRACT TO SELL)
REAL ESTATE
THIS OPTION TO PURCHASE AND CONTRACT TO SELL REAL ESTATE (hereinafter
referred to as the "Agreement"), effective this 25th day of January 2001, by and
among XXXXX X. XXXXXXX and XXXXXXXX X. XXXXXXX (hereinafter collectively
referred to as "Seller"); and FSNB, LLC, a Georgia limited liability company
having its principal place of business in Statesboro, Georgia (hereinafter
referred to as "Purchaser").
W I T N E S E T H:
WHEREAS, the Seller is the owner of those certain tracts or parcels of
land located in the 1209th G. M. District of Xxxxxxx County, Georgia, more
particularly described as follows:
Tract No. 1
All that certain lot or parcel of land lying and being in the City of
Xxxxxxxxxx, 0000xx G. M. District of Xxxxxxx County, Georgia and
fronting North on Xxxx Xxxxx Street a distance of 80-1/3 feet and
running back in a southerly direction between slightly converging lines
a distance of 134 feet and being 72-2/3 feet wide on the southern side
and containing 235/1000 acre, more or less, according to plat of same
made by X. X. Xxxxx, Surveyor, dated November 28, 1906 and recorded in
Deed Book 210, page 325, Xxxxxxx County Records. Said property being
bound now or formerly as follows: Northerly by said Xxxxx Street;
Easterly by lands now or formerly of Xxxxx Xxxx; Southerly by lands now
or formerly of Xxx. X. X. Xxxxxx; and Westerly by Xxxxx Xxxxxx Xxxxxx
(xxxxxxxx Xxxx Xxxxxx) and being known as the homeplace of the late
Xxx. X. X. XxXxxxxxx. Such property is also known as 00 Xxxx Xxxxx
Xxxxxx by the current method of numbering streets in Statesboro,
Xxxxxxx County, Georgia.
Tract No. 2
All that certain lot or parcel of land lying and being in the 1209TH G.
M. District of Xxxxxxx County, Georgia and in the City of Statesboro
and more particularly described according to a plat made by X. X.
Xxxxxxx, Xx. Surveyor, dated November 10, 1950 and recorded in Plat
Book 2, page 3, Xxxxxxx County Records, as beginning at a point on the
southern edge of Xxxx Xxxxx Street, which point is 166 feet west of the
southwestern intersection of South Main Street (U.S. Highway 301) and
Xxxx Xxxxx Street, the line runs along lands now or formerly of H.
Xxxxx Xxxx, formerly Xxx. Xxxxx X. Xxxx, South 5 degrees 10 minutes
West a distance of 80 feet; thence along the same bearing along lands
now or formerly of
Xxx. X. X. Xxxxxx a distance of 54.5 feet to an iron corner; thence
North 85 degrees 30 minutes West 71.3 feet along lands of Xxxxxxx X.
Xxxxxx and Xxx. Xxxxx X. Xxxxxxx to an iron corner; thence North 7
degrees 20 minutes East 134.15 feet along lands of Xxx. Xxxx Xxxxx
Xxxxxxxxx, formerly Xxx. X. X. XxXxxxxxx to an iron corner; thence
along Xxxx Xxxxx Street South 85 degrees 30 minutes East 66.15 feet to
the point of beginning. This being the same property conveyed to Xxxxx
Xxxxx and Xxxxxxx Xxxxx by Warranty Deed from Xxxx X. Xxxx, H. Xxxxx
Xxxx, III, and Xxxxxx X. Xxxx dated August 12, 1985, and recorded in
Deed Book 454, Page 278, Xxxxxxx County records. Such property is also
known as 0 Xxxx Xxxxx Xxxxxx by the current method of numbering streets
in Statesboro, Xxxxxxx County, Georgia.
Tract No. 3
All that certain lot or parcel of land situate, lying and being in the
City of Xxxxxxxxxx, 0000xx G. M. District of Xxxxxxx County, Georgia
fronting East on South Main Street a distance of 54.34 feet, and
running back in a westerly direction from said South Main Street and
being bound now or formerly as follows: Northerly by property of Xxxxx
X. Xxxxxxx, Xx. and Xxxxxxxx X. Xxxxxxx; Xxxxxxxx by said Xxxxx Xxxx
Xxxxxx (X.X. Xxxxxxx Xx. 000 ); Southerly by property of Xxxxxxx X.
Xxxxxx and Xxxxx X. Xxxxxxx; and Westerly by property now or formerly
of Xxxxx Xxxxx, all as shown on a plat of survey made by Xxxxx X.
Xxxxxxx & Associates, Surveyors, dated November 24, 1987, a copy of
which is recorded in Plat Book 30, page 61, Xxxxxxx County records.
This is the same property conveyed to Xxxxxx Xxxxxxx Xxxxxxx by deed of
X.X. Xxxxxx, dated June 30, 1932 and recorded in Deed Book 88, page
327, Xxxxxxx County, Georgia records. Such property is also known as
000 Xxxxx Xxxx Xxxxxx under the current method of numbering streets in
Statesboro, Xxxxxxx County, Georgia.
Tract No. 4
All that certain lot, tract or parcel of land lying and being in the
City of Xxxxxxxxxx, 0000xx G. M. District of Xxxxxxx County, Georgia,
fronting East on South Main Street (U.S. Highway 301) a distance of
81.37 feet as shown on a plat of survey made by Xxxxx X. Xxxxxxx &
Associates, Surveyors, dated February 8, 1985, a copy of which is
recorded in Plat Book 30, page 49, Xxxxxxx County Records. Said
property being bound now or formerly as follows: North by Xxxx Xxxxx
Street; East by South Main Street; south by lands now or formerly of
Xxxxxx X. Xxxxxxx, and West by lands now or formerly of H. Xxxxx Xxxx,
Xx. This is the same property conveyed to Xxxxxx X. X. Xxxxxxxxx, Xx.,
by deed of Xxxx Xxxxxxx X. Xxxxxx dated July 7, 1986 and recorded in
Deed Book 466, page 789, Xxxxxxx County, Georgia records. By deed dated
February 27, 1987 and recorded in Deed Book 480, page 228, Xxxxxxx
County records, the said Xxxxxx X. X. Xxxxxxxxx, Xx. conveyed said
property to The Spectrum Management Group, Inc., a Connecticut
corporation. Such property is also known as 000 Xxxxx Xxxx Xxxxxx under
the current method of numbering streets in Statesboro, Xxxxxxx County,
Georgia.
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The above described plats are hereby incorporated herein and made a part of this
description by reference.
(said four parcels, together with all improvements, fixtures, plants and trees
situated thereon, and all hereditaments, appurtenances, rights, permits,
licenses, easements and rights-of-way incident and appurtenant thereto are
herein collectively referred to as the "Property").
WHEREAS, the Seller and Purchaser have engaged in negotiations
regarding the potential sale of the Property; and
WHEREAS, the Purchaser desires to have the option to purchase the
Property on or prior to July 31, 2001, on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, for and in consideration of the Xxxxxxx Money described
in Paragraph 2 below and for other good and valuable consideration, in hand paid
by Purchaser to Seller, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of the mutual promises, covenants and
conditions contained herein, the Seller and Purchaser hereby agree as follows:
1. OPTION TO PURCHASE REAL ESTATE. The Seller does hereby give and
grant unto the Purchaser, its members, successors and assigns, the exclusive
right and option to purchase all of the Property on the terms and conditions set
forth in this Agreement, provided that said option is expressly conditioned upon
the payment by Purchaser to Seller of the $5,000.00 Xxxxxxx Money on the terms
and conditions described in Section 2. Should Purchaser fail to exercise the
option prior to the Expiration Time, except as otherwise set forth in Section
12, the Purchaser shall forfeit all Xxxxxxx Money to Seller as described more
fully in Paragraph 2.
2. XXXXXXX MONEY. Not later than 5:00 p.m., Eastern Standard Time, on
January 25, 2001, Purchaser shall pay to Seller the sum of FIVE THOUSAND AND
NO/100 ($5,000.00) DOLLARS as Xxxxxxx Money in consideration for the option to
purchase the Property on the terms and conditions set forth in this Agreement.
Said sum of $5,000.00 shall be referred to hereinafter as the "Xxxxxxx Money."
Said Xxxxxxx Money shall be retained by Seller as consideration for the option
granted to Purchaser to purchase the Property, whether or not the option is
exercised prior to the Expiration Time, except as otherwise set forth in
Sections 8 and 12. In the event Purchaser does exercise the option to purchase
the Property, the Xxxxxxx Money will be applied to the Purchase Price, as
described more fully in Section 3.
3. PURCHASE PRICE AND TIME OF PAYMENT. If the option granted to the
Purchaser to purchase the Property is exercised, the total purchase price for
the Property payable from the Purchaser to the Seller at the closing of the sale
of the Property (hereinafter referred to as the "Purchase Price") shall be Three
Hundred Thousand ($300,000.00) DOLLARS, and shall be payable as follows:
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(a) The Xxxxxxx Money paid by the Purchaser to the Seller
shall be credited against the portion of the Purchase Price paid at the closing
of the transaction contemplated by this Agreement (hereinafter referred to as
the "Closing").
(b) The balance of the Purchase Price shall be paid in
certified or other readily available funds at the time of Closing.
4. TERM. The option granted to Purchaser pursuant to this Agreement
shall be effective from the date of this Agreement until 5:00 p.m. on July 31,
2001 (the "Expiration Time"). If not exercised as set forth in Paragraph 5 by
the Expiration Time, said option shall expire and Seller shall be entitled to
retain the Xxxxxxx Money, except as otherwise set forth in Section 12.
5. EXERCISE. At any time prior to the Expiration Time, Purchaser may
exercise the option to purchase the Property by a writing delivered to Seller as
provided in Paragraph 15 below.
6. CONTRACT UPON EXERCISE. Upon exercise of the option, the terms of
purchase and sale shall be as set forth in this Agreement, including any
exhibits or addenda hereto, all of which are incorporated herein by reference.
7. CLOSING/CLOSING DATE. Closing of the transaction which is
contemplated by this option to purchase shall take place not later than ten (10)
days from the Expiration Time. The Closing may take place at any time prior to
the Expiration Time, provided that Purchaser is aware that it would have to take
title to the Property subject to the following leases:
Xxxxxx Xxxxxx Realty - Month to Month lease.
GSU Professor renting 10 Xxxx Xxxxx St. - Month to Month lease
Xxxx Xxxxx (sublease to Xxxxxxxx, Xxxxxx & Deal) - Expires
July 31, 2001 with no option to renew in lessee
Prudential Life Ins. Co. - Lease on back office space in 0 Xxxx Xxxxx
Xx until December 2001. It is believed that Prudential will
allow early termination of this lease since company has
closed its business in Statesboro, Georgia.
Seller and Purchaser acknowledge that notice of up to sixty (60) days may be
required to terminate the month-to-month leases and that Purchaser may need
possession of the Property as soon as possible after closing to commence
construction operations. As such, Purchaser and Seller agree that upon
Purchaser's exercise of this option and at the request of Purchaser, Seller will
immediately give notice of termination to all lessees under a month to month
lease. Upon the giving of such notice, Purchaser shall be under an absolute
obligation to purchase the Property subject only to Seller's obligations set
forth in Sections 8 and 12.
8. EXAMINATION OF TITLE. At Closing, Seller agrees to furnish a good,
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marketable, fee simple title to the Purchaser subject to the approval of
Purchaser's attorney. If defects are found in the examination of title by
Purchaser's attorney, Seller shall be furnished with a written statement
thereof, and this Agreement will thereby be automatically extended without
further action on the part of the parties, for a period of thirty (30) days from
the Expiration Time specified in Paragraph 4, within which time such defect
shall be remedied by Seller unless such extension would be materially
prejudicial to Purchaser, in which case the Xxxxxxx Money shall be returned to
Purchaser and this Agreement shall terminate without further obligation by
either party. It is understood and agreed that marketability of the title herein
required to be furnished by the Seller shall be determined in accordance with
Georgia law as supplemented by the Title Standards of the State Bar of Georgia.
It is also agreed that any defect in title which comes within the scope of any
of said Title Standards shall not constitute a valid objection on the part of
the Purchaser, provided the Seller furnishes affidavits or other title papers,
if any, required in the applicable standards to cure such defect.
9. POSSESSION OF THE PROPERTY. At Closing, Seller shall deliver to
Purchaser possession of the Property.
10. INSPECTION OF PROPERTY. Purchaser, personally or through agents,
employees, or contractors may go upon the Property following the execution of
this Agreement and through the Expiration Time to inspect the Property, to
conduct such soil, engineering, environmental, "wetlands" and other tests,
investigations and analyses of the Property as Purchaser deems appropriate.
Seller hereby agrees to cooperate fully with Purchaser and Purchaser's agents so
as to allow Purchaser and Purchaser's agents the reasonable opportunity to
inspect the Property and any other information respecting the Property.
Purchaser shall pay all of his costs incurred in making such surveys,
inspections, tests, analyses and investigations, and Purchaser, at his own
expense, shall be responsible for the repair of any damages to the Property
incurred by reason of Purchaser's inspection of the Property. Notwithstanding
the foregoing, Purchaser agrees that it and its agents will be discrete in
conducting any such tests, investigations or analyses until the existence of the
option has been publicly disclosed pursuant to the terms of Section 21.
11. DELIVERIES AT CLOSING. On the closing date, the Closing shall occur
as follows, subject to the satisfaction of all of the terms and conditions of
this Agreement:
(a) Seller shall convey to Purchaser, without exception for
any title objections other than permitted title exceptions set forth in Exhibit
"A", marketable fee simple title to the Property by general warranty deed, duly
executed and in recordable form.
(b) Seller shall deliver possession of the Property to
Purchaser at Closing, subject to the leases referenced in Section 7 of this
Agreement, if applicable.
(c) Seller shall deliver to Purchaser an affidavit concerning
(i) the lack of existence of any boundary line disputes concerning the Property;
(ii) the lack of the existence of
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any person, other than Seller, being in possession of the Property and the lack
of any other person having any right to possess the Property (other than the
leases described in Section 7); (iii) the making of or payment for any
improvements or repairs by or for the account of, or at the insistence of Seller
to or on the Property within three (3) months prior to the date of Closing; (iv)
the lack of the existence of any legal proceedings against Seller which could
affect Seller's title to the Property or the right or power of Seller to convey
the Property to Purchaser in accordance with this Agreement; and (v) any other
matters reasonably required by Purchaser or Purchaser's title insurer.
(d) Seller shall deliver to Purchaser an affidavit in form
satisfactory to Purchaser to the effect that Seller is not a foreign person,
corporation, foreign partnership, foreign trust or foreign estate for the
purposes of Section 1445 of the Internal Revenue Code to establish that
Purchaser has no obligation under such law to withhold and pay over to the
Internal Revenue Service any part or the amount realized as shall be reasonably
necessary for the consummation of this transaction.
(e) Seller and Purchaser shall deliver to each other such
other instruments and documents as shall be reasonably necessary for the
consummation of this transaction.
(f) At the Closing, upon Seller's delivery of the general
warranty deed, affidavits and other documents (if any) required under any other
terms of this Agreement, Purchaser shall pay the entire Purchase Price due at
Closing to Seller, as set forth in Paragraph 3 of this Agreement.
(g) Purchaser shall pay (i) all costs of title examination and
certification and all premiums for title insurance obtained by Purchaser on the
general warranty deed; (ii) costs of recording the general warranty deed, any
and all necessary easements and notice of option; (iii) fees and expenses of
Purchaser's attorneys; and (iv) all other costs incurred by Purchaser. Seller
shall pay (i) State of Georgia transfer tax (due on the conveyance of the
property; (ii) all costs and expenses incurred to clear title to the property;
and (iii) all other costs incurred by Seller.
(h) All ad valorem property taxes affecting the Property for
the calendar year of the Closing shall be prorated between Seller and Purchaser
as of the closing date. All ad valorem property taxes with respect to the
Property required to be paid under applicable law prior to Closing shall be paid
by Seller, even if assessed after the Closing. Any and all rollback taxes,
special assessments, or other retroactive assessments which are made with
respect to the Property and for any period of time prior to Closing shall be
paid by Seller, even if assessed after Closing. In the event that the xxxx(s)
for ad valorem property taxes affecting the Property for the calendar year of
the Closing is not available at the time of the Closing, the proration shall be
based upon either the tax xxxx for the immediately preceding year or the current
millage rate and valuation, if available. In the event that upon the
availability of tax information for the calendar year of the Closing this
proration shall result in a malapportionment of ad valorem
6
taxes, the parties shall reapportion the taxes between themselves, with any
deficiency being paid on demand to the other party receiving the detriment of
the malapportionment.
12. CONDITIONS PURSUANT TO WHICH PURCHASER SHALL BE ENTITLED TO RETURN
OF XXXXXXX MONEY. In the event that Purchaser shall fail to exercise the option
to purchase the Property prior to the Expiration Time, Purchaser shall forfeit
the Xxxxxxx Money to Seller unless one or more of the following conditions have
occurred and are continuing as of the Expiration Time:
(a) Seller has materially breached its representations and
warranties contained in this Agreement and fails to cure such breach within ten
(10) days after being notified of said breach. In such event, Purchaser shall be
entitled to a full refund of all Xxxxxxx Money; or
(b) Seller cannot convey marketable title to Property as set
forth in Section 8 hereof.
13. REPRESENTATIONS AND WARRANTIES. Seller warrants and represents to
Purchaser as follows:
(a) Seller owns unencumbered fee simple title to the Property,
free and clear of all restrictions, liens, encumbrances, easements, leases,
tenancies, encroachments, financing statements and agreements; and Seller will
at the time of Closing convey marketable fee simple title to the Property to
Purchaser by general warranty deed, free and clear of all title objections,
restrictions, liens, encumbrances, easements, leases, tenancies, encroachments,
financing statements and agreements, except those permitted title exceptions set
forth in Exhibit "B" hereto.
(b) There are no service contracts, maintenance contracts or
other agreements which burden the Property, and the Property is free from any
use and occupancy restrictions.
(c) Seller is not a party to any litigation or administrative
proceeding affecting the Property or any part thereof or affecting Seller's
right to sell the Property or any interest therein, and there is no pending or
threatened litigation or administrative proceedings affecting the Property or
any part thereof or affecting Seller's right to sell the Property or any
interest therein. Seller shall give Purchaser notice of the institution of any
such proceedings, or of its knowledge of any such threatened proceedings within
five (5) days after Seller receives notice of the institution of threat of such
proceeding, and in any event prior to Closing.
(d)Seller agrees not to alter or encumber in any way Seller's
title to the Property after the date first above written without the prior
written consent of Purchaser.
(e) All work done or materials furnished by or on behalf of
Seller with respect
7
to the Property will, at the time of Closing, have been paid for in full.
(f) The execution and consummation of this Agreement will not
violate any judgment, order, decree or contract of which Seller is a party.
(g) Seller is not a party to, and shall not enter in to any
other contract, written or verbal, to sell the Property while this Agreement is
in force.
(h) No dispute exists concerning the location of the boundary
lines and corners of the Property.
(i) The Property, nor any portion thereof, is or will be at
the time of Closing, subject to a claim of adverse possession and no party other
than Seller is in possession of the Property.
(j) Except for the lease expiring July 31, 2001 with respect
to the office leased to Xxxxxxxx, Xxxxxx and Deal, the two month-to-month leases
on parcels three and five, and the lease by Prudential Life Insurance Co. on 0
Xxxx Xxxxx Xxxxxx expiring December 31, 2001, there are no leases or tenancies
which affect the Property, and so long as this Agreement remains in force,
Seller will not lease or convey any portion of the Property or any rights
therein nor enter into any additional agreements or amendments to any agreements
granting to any person or entity any right with respect to the Property or any
part hereof.
(k) No assessments for taxes or other assessments have been
made against the Property which are unpaid, except for ad valorem taxes for the
current year, whether or not such assessments have become liens on the Property.
(l)The Property is in compliance with all applicable laws,
ordinances, rulings regulations and codes, including, but not limited to, the
Property being in compliance with all zoning ordinances. To the best knowledge
and belief of the Seller, the Property is in compliance with all state and
federal environmental protection laws and regulations. Seller or Seller's agents
have received no notices from any governmental agency of any violation of the
foregoing that have not been heretofore corrected.
14. BROKERS COMMISSION. Each party warrants and represents to the other
that such party has not employed or dealt with a real estate broker or agent in
connection with the transaction contemplated hereby. The parties covenant and
agree, each to the other, to indemnify the other against any loss, liability,
costs, claims, demands, damages, actions, causes of action, and suits arising
out of or in any manner related to the alleged employment or use by the
indemnifying party of any real estate broker or agent.
15. NOTICES. Any notices, requests, or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered (i)
by U.S. Registered or
8
Certified Mail, Return Receipt Requested, postage prepaid, (ii) by delivery via
a nationally recognized overnight courier service that obtains receipts or a
recognized same-day courier service that obtains receipts, or (iii) by hand
delivery. Each notice shall be addressed to each party at its address set forth
below, or such other addresses as may be changed by the parties by written
notice as herein provided. Any such notice, request, or other communication
shall be considered given or delivered, as the case may be, on the date of
courier delivery, upon confirmation, or on the third day after the date of
deposit in the U.S. mail as to notices sent only by certified mail.
Purchaser: FSNB, LLC
c/o Xxxxx Xxxxx, President
000X Xxxxx Xxxxxxxxxx Xxx.
Xxxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx Xxxxx
Franklin, Taulbee, Rushing, Xxxxxx & Xxxxx, P.C.
00 Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Seller: Mr. Xxxxx Xxxxxxx & Xxx. Xxxxxxxx Xxxxxxx
c/o Prudential Xxxxxxxx Realty
000 Xxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
16. TIME OF THE ESSENCE. Time is of the essence hereof.
17. SURVIVAL OF AGREEMENT. All the terms and conditions of this
Agreement not performed at or prior to Closing shall survive the Closing
hereunder and shall not be merged into the closing documents.
18. ENTIRE AGREEMENT. This Agreement, and the Exhibits and Addenda
hereto, which are incorporated by reference herein, constitute the sole and
entire agreement between the Purchaser and the Seller and no modification of
this Agreement shall be binding unless attached hereto and executed by all
parties to this Agreement. No representation, promise, or inducement not
included in this Agreement shall be binding upon any party hereto, except by a
written modification or Addenda to this Agreement executed by all parties
hereto.
19. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto, and their respective successors and
assigns. Either party may assign its rights and duties under this Agreement
provided that any assignee of such party's rights and duties becomes bound to
perform the terms and conditions hereof.
9
20. GOVERNING LAW. This Agreement is being delivered and is intended to
be performed in the State of Georgia and shall be construed and enforced in
accordance with the laws of the State of Georgia.
21. CONFIDENTIALITY. Seller and Purchaser acknowledge that the Property
is currently being leased to four third party tenants (one, Prudential Life
Insurance Co., is not actually in possession of the Property). Two parcels are
being leased on a month-to-month basis and Seller may be required to provide
sixty (60) days' notice to such tenants prior to requiring such tenants to
vacate the premises. One parcel is being leased to the accounting firm of
Xxxxxxxx, Xxxxxx & Deal until July of 2001. Seller and Purchaser acknowledge
that it might jeopardize the tenants' continued willingness to lease portions of
the Property if the terms of this Option become public knowledge prior to
exercise. Therefore, Purchaser and Seller each agree that they will use their
reasonable best efforts to keep terms of this Option confidential until such
time as Purchaser actually exercises the Option. Notwithstanding the foregoing,
Purchaser shall have no liability to Seller if such information becomes public
despite Purchaser's reasonable best efforts to maintain confidentiality.
In connection with the terms of this Section, Seller and Purchaser
agree that no public record shall be made of the existence of this option prior
to exercise. As such, Seller covenants that it will not enter into a contract
for sale or an option to sell the Property with any third party prior to the
expiration time of the option. Purchaser may enforce the terms of this paragraph
by any and all available legal or equitable remedies, including but not limited
to an action for specific performance.
22. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
counterparts together shall constitute one and the same instrument.
23. INTERPRETATION. Should any provision of this Agreement require
judicial interpretation, it is agreed that the court interpreting or construing
the same shall not apply a presumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
a document is to be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation hereof.
24. COOPERATION IN TAX DEFERRED EXCHANGE. A material part of the
consideration to each of Seller and Purchaser is that either party has the
option to qualify this transaction as part of a tax deferred exchange under
Section 1031 of the Internal Revenue Code. Each party agrees to cooperate in an
exchange by the other party provided such party incurs no additional liability,
costs, or expenses.
25. PERMITTED ASSIGNMENTS. In addition to the other terms of this
Agreement, both parties specifically reserve the right to assign his/her/its
rights, obligations and duties
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under this Agreement to a qualified intermediary within the meaning of Treasury
Regulations Section 1.1031(k)-1(g)(4).
26. Intentionally Omitted.
27. SELLER'S RIGHT TO REMOVE FRAME BUILDING. Purchaser and Seller agree
that Seller shall have the option to remove the frame building located on Parcel
4 (8 Xxxx Xxxxx Street) which currently houses the operations of Xxxxx Xxxxxxx'x
appraisal business. In the event that Seller elects to remove such building,
Seller shall have the building moved not later than thirty (30) days from the
date of Closing. In the event Seller fails to remove the building in such thirty
(30) day period, Seller shall forfeit Seller's option to remove the building
unless a written extension of time is granted in Purchaser's sole discretion.
28. AUTHORIZATION OF PURCHASER'S LEGAL COUNSEL TO EXECUTE OPTION FOR
PURCHASER. Purchaser hereby certifies to Seller that Purchaser has authorized
its legal counsel, Xxxxx Xxxxx of Franklin, Taulbee, Rushing, Xxxxxx & Xxxxx,
P.C., to execute this option on its behalf.
29. CONDITION PRECEDENT TO EXERCISE. Notwithstanding anything else
contained herein, Purchaser may not exercise the option granted to purchase the
Property hereunder unless Purchaser shall simultaneously exercise the option
granted to Purchaser to purchase those two (2) other tracts of Property located
at the intersection of Xxxxx Street and South Walnut Street which are also
subject to an option between Purchaser and Seller. Such transactions must be
closed simultaneously such that FSNB, LLC or its successor or assign shall
purchase all six (6) lots at the same closing. Purchaser shall have no further
rights under this option and shall forfeit all Xxxxxxx Money paid hereunder
unless it strictly complies with this Section 29.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
under seal the day and year first above written.
/s/ XXXXX X. XXXXXXX
------------------------------------
XXXXX X. XXXXXXX
/s/ XXXXXXXX X. XXXXXXX
------------------------------------
XXXXXXXX X. XXXXXXX
Signed, sealed and delivered
in the presence of:
/s/ Jan. X. Xxxxxxx
---------------------------------
Witness
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Notary Public
FSNB, LLC
/s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx, Attorney
Signed, sealed and delivered
in the presence of:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Witness
/s/ Jan. X. Xxxxxxx
---------------------------------
Notary Public
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EXHIBIT "A"
(1) Municipal, State and County taxes for 2001 and subsequent years.
(2) Any action by any municipal or governmental agency, including
condemnation by any condemning authority (heretofore or hereafter
taken), for the purpose of regulating the use, occupancy or zoning of
the property described in this certificate or of any building,
structure, minerals or material thereon.
(3) Forgery or non sui juris conveyances in the chain of title.
(4) Existing utility easements and sanitary sewer lines; any roads or ways
through the property; or the rights of others in and to any stream
running through the property.
(5) Matters of record subsequent to the date of this certificate and
matters affecting title which do not appear on the real property
records, or which, if they are of record, are not indexed in such a
manner that a reasonably prudent search would have revealed them to the
examiner.
(6) All environmental matters arising from State or Federal rules,
regulations, law or procedures, all hazardous waste rules, regulations,
law or procedures, State or Federal, and any State or Federal rule or
regulation as to underground tanks of any nature.
(7) Any and all provisions of the Federal Wetlands Act.
(8) Loss by reason of any computational errors in the determination of the
size of the area located within the boundary lines of the subject land.
(9) Any loss or claim of loss arising from or occasioned by the filing or
pendency of any petition under any chapter of the U. S. Bankruptcy Act
or pursuant to any insolvency or debtor's relief statutes of the State
of Georgia.
(10) Liability under title certificate limited to amount of funds to be
disbursed with respect to Property.
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