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THIS AGREEMENT FOR THE SALE AND PURCHASE OF REAL ESTATE
THIS AGREEMENT FOR THE SALE AND PURCHASE OF REAL ESTATE (this
"AGREEMENT"), made and entered into this 18th day of December, 1995 (the
"EFFECTIVE DATE"), by and among SUNTRUST BANK, ATLANTA, a Georgia banking
corporation (the "SELLER"); SBC PROPERTIES, LLC (the "PURCHASER"); XXXX,
XXXXXXX & COMPANY (the "BROKER"); XXXXX - XXXXXXX COMPANY (the "CO-BROKER");
and XXXX, XXXXXXX COMPANY (the "ESCROW AGENT").
W I T N E S S E T H: That;
For and in consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. PURCHASE AND SALE. Upon the terms and provisions hereinafter set
forth, Seller agrees to sell and Purchaser agrees to purchase all of that
certain tract or parcel of land lying and being in XXXX COUNTY, Georgia,
containing approximately 1.2 ACRES as more particularly described on Exhibit
"A", attached hereto and by this reference made a part hereof, together with
any and all plants, trees, timber, shrubbery, improvements, and fixtures
located thereon or attached thereto, and all rights, easements, licenses, and
benefits appurtenant thereto (with said tract or parcel of land being
hereinafter collectively referred to as the "PROPERTY").
2. PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") for the
Property shall be FIVE HUNDRED-THOUSAND DOLLARS ($500,000.00). The Purchase
Price shall be paid by Purchaser to Seller in cash, certified check or other
good funds approved by Seller, at "Closing" (as hereinafter defined), as
adjusted to reflect a credit in the amount of the Xxxxxxx Money paid hereunder
and the probations between Purchaser and Seller described in Paragraph 9 hereof.
3. XXXXXXX MONEY. Upon Purchaser's execution and delivery of this
Agreement, Purchaser shall deliver to Escrow Agent the sum of
TWENTY-FIVE-THOUSAND-DOLLARS ($25,000.00), which sum shall be held by Escrow
Agent as xxxxxxx money. Such money, together with accrued interest, shall be
collectively referred to as the "XXXXXXX MONEY." The Xxxxxxx Money shall be
deposited in an interest bearing account in a financial institution mutually
agreed upon by Purchaser and Seller, and shall be credited against the Purchase
Price of the Property at Closing. For the avoidance of doubt, any and all
interest earned shall accrue to the benefit of Purchaser. Unless Purchaser has
terminated this Agreement pursuant to Paragraph 4 hereof, the Xxxxxxx Money
shall become nonrefundable on the day after the Examination Period (as
hereinafter defined) ends.
4. EXAMINATION PERIOD.
a. Entering Property. Purchaser shall have twenty-five (25)
days after the Effective Date hereof (the "EXAMINATION PERIOD") to enter upon
the Property with Purchaser's authorized agents and employees and make such
surveying, environmental, architectural, engineering, topographical, geological,
soil and other tests, borings, studies and measurements as Purchaser deems
necessary or desirable to review and examine the Property. Purchaser shall
indemnify and hold Seller harmless from any claims, losses, damages,
liabilities and expenses (including attorneys' fees) resulting from the
activities of Purchaser or Purchaser's agents or employees on the Property
prior to Closing. The indemnity contained in this Paragraph shall survive the
Closing and any termination of the Agreement.
b. Survey; Reports. Upon its receipt thereof, Purchaser shall
immediately make available to Seller copies of all surveys and reports made in
connection with the activities of Seller and Seller's authorized agents and
employees pursuant to subparagraph 4.a. above, at no cost to Seller. Such
copies shall become the personal property of Seller regardless of whether the
sale and purchase of the Property is consummated as described herein.
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c. Termination Right. Purchaser shall have the right to
terminate this Agreement at any time on or before the last day of the
Examination Period if Purchaser in its sole judgment determines not to buy the
Property. Purchaser shall make its election to terminate by giving Seller
written notice of such election, in which event Escrow Agent shall pay Seller
ONE HUNDRED DOLLARS ($100.00) of the Xxxxxxx Money as consideration for Seller's
having removed the Property from the market and shall refund the balance of the
Xxxxxxx Money to Purchaser, whereupon this Agreement shall terminate and the
parties hereto shall have no further rights or obligations hereunder except for
any right or obligation under any Paragraph hereof which by its terms survives
any termination hereof.
5. REAL ESTATE BROKER.
a. Representation and Warranty. Seller and Purchaser each
represent and warrant to the other that, except for Broker, neither has
employed, retained or consulted any broker, agent, or finder in carrying on the
negotiations in connection with this Agreement or the purchase and sale referred
to herein.
b. Indemnity. Seller and Purchaser each hereby indemnifies
and agrees to hold the other harmless from and against any and all
claims, demands, causes of action, debts, liabilities, judgments and damages
(including costs and attorneys' fees incurred in connection with the enforcement
of this indemnity) which may be asserted or recovered against the indemnified
party on account of any brokerage fee, commission or other compensation arising
by reason of the indemnitor's breach of the foregoing representation and
warranty. This subparagraph 5.b. shall survive Closing or any termination of
this Agreement.
c. Brokers Commission. Purchaser, Seller and Broker
acknowledge that Broker is representing Seller in this transaction and
Xxxxx - Xxxxxx Company is representing Purchaser in this transaction, and at
Closing, upon the consummation of the transaction described herein, Seller shall
pay a commission equal to SEVEN PERCENT (7%) of the Purchase Price to be divided
evenly between Broker and Co-Broker.
d. Broker's Release. Broker and Co-Broker agree to deliver
at closing a release and waiver of lien (i) acknowledging payment in full of
all commissions due or to become due with respect to the Property and this
Agreement and (ii) releasing and-discharging Seller, Purchaser and the Property
from any and all commissions, fees and other compensation due or to become due
with respect to this Agreement and the Property.
6. TITLE. At Closing, Seller shall convey the Property to Purchaser
subject only to the matters shown on Exhibit "B" attached hereto and by this
reference made a part hereof and any other title matters waived by Purchaser as
provided in this Paragraph (the "PERMITTED EXCEPTIONS"). Purchaser shall have
until the thirtieth (30th) day after the Effective Date hereof to examine
title to the Property and to give written notice to Seller of any objections
which Purchaser may have, other than the Permitted Exceptions. if Purchaser
fails to give notice to Seller by such date, Purchaser shall be deemed to have
waived its right to object to such other title exceptions or defects. If
Purchaser gives timely notice to Seller of objection to any title exceptions or
defend other than the Permitted Exceptions: Seller shall have the right but not
the obligation, until Closing to cure or satisfy all valid objections of which
it was timely notified by Purchaser, and in addition, upon notice to , Seller
may postpone the Closing by thirty (30) days in order that such objections
might be cured. If any material title objection, of which Seller was timely
notified, is not so satisfied by Seller by the date of Closing, then Purchaser
shall have the right to terminate this Agreement by written notice to Seller,
in which event Escrow Agent shall pay Seller ONE HUNDRED DOLLARS ($100.00) of
the Xxxxxxx Money as consideration for Seller's having removed the the market
and shall refund the balance of the Xxxxxxx Money to Purchaser, whereupon this
Agreement shall and the parties hereto shall have no further rights or
obligations hereunder except for any right or obligation under any Paragraph
hereof which by its term survives any hereof If Seller does so cure or satisfy
the objection, then this Agreement shall continue in effect. Purchaser shall
have the right at any time to waive any objections that it may have made and
thereby to preserve this Agreement in effect. For purposes of this Agreement
a "material title objection" is one which materially impairs Purchasees ability
to utilize the Property for Purchaser's intended purposes.
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7. CLOSING.
a. Date, Time and Place. Consummation of the sale and
purchase of the Property (the "CLOSING") shall be held at 10:00 a.m. on
JANUARY 15, 1996, or such earlier date as may be designated by notice from
Purchaser to Seller delivered not less than five (5) business days prior to the
selected date.
b. Location. Closing shall be held in the offices of King &
Spalding, 191 Peachtree Street, Atlanta, Georgia, or at such other place
in Atlanta, Georgia as designated by Seller.
c. Possession. Seller agrees to deliver possession of the
Property to Purchaser at Closing.
8. CLOSING DOCUMENTS. Seller agrees to deliver the following documents to
Purchaser at Closing;
a. a limited warranty deed in the form attached hereto as
Exhibit "C" describing the Property in accordance with Exhibit "A" hereto.
Should the legal description of the Property taken from the Survey differ from
Exhibit A", then upon the request of Purchaser, Seller shall execute a
quitclaim deed conveying the Property based on the legal description taken
from the Survey;
b. a sellers affidavit in the form attached hereto as
Exhibit "D";
c. a certificate and affidavit of non-foreign status in the
form attached hereto as Exhibit "E", pursuant to the provisions of Section
1445 of the United States Internal Revenue Code of 1954, as amended, and
an affidavit of sources residence in the form attached hereto as Exhibit "F",
pursuant to the provisions of Section 48-7-128 of the Official Code of Georgia
Annotated; and
d. a Form 1099-S Information Sheet, a Form W-9 and such
other documents and cuts to effect the transaction described herein as may be
reasonably required by counsel to Purchaser or Title Company.
9. TAX PRORATIONS. Real property ad valorem taxes for the current year
shall be prorated as of the day of Closing on the basis of the most recently
available tax bills. In the event that the actual taxes for the year differ
from the basis for the proration, the parties shall promptly make the
appropriate adjustment.
10. CLOSING COSTS. At Closing, Seller and Purchaser shall pay the
following respective costs and expenses:
a. Seller's Expenses. Seller shall pay (i) the Georgia
transfer tax, (ii) the Broker's Commission, (iii) the fees and expenses
of Seller's attorney, and (iv) any other costs and expenses actually incurred by
Seller; and
b. Purchaser's Expenses. Purchaser shall pay (i) the cost of
Purchaser's title examination, commitment and title insurance premium, (ii) all
recording and filing fees for all recordable instruments executed and delivered
by Seller at Closing pursuant to the terms hereof (iii) the cost of the Survey
and reports, (iv) the fees and expenses of Purchaser's attorney, (v) the fees
and of complying any all subdivisions ordinances and regulations in the event
the conveyance contemplated hereunder Constitutes a subdivision, and (vi) any
other costs and expenses actually incurred by Purchaser.
11. EMINENT DOMAIN. Prior to Closing, if all or any material part of the
Property is taken by eminent domain or if condemnation proceedings are
commenced, Seller shall notify Purchaser, and Purchaser may elect by written
notice to Seller and Escrow Agent (i) to terminate this Agreement and receive a
retired of the Xxxxxxx Money, whereupon this Agreement shall terminate, and the
parties hereto shall have no further rights or obligations hereunder, except
for any right or obligation under any Paragraph hereof which by its terms
survives any termination hereof, or (ii) to keep the Agreement in full force
and effect, whereupon no reduction in the Purchase Price shall be made;
however, Seller shall assign, transfer, and set over to Purchaser at Closing
all of Seller's right, title, and interest in any awards that may be made for
such taking.
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12. RISK OF FIRE/CASUALTY LOSS. Risk of loss or damage by fire or other
casualty through the date of Closing shall remain with Seller. If all or a
material portion of the Property is damaged by fire or other casualty prior to
Closing, Purchaser may elect by written notice to Seller and Escrow Agent (i)
to terminate this Agreement and receive a refund of the Xxxxxxx Money.
whereupon this Agreement shall terminate, and the parties hereto shall have no
further rights or obligations hereunder, except for any right or obligation
under any Paragraph hereof which by its terms survives any termination hereof,
or (ii) to keep the Agreement in full force and effect, whereupon the Purchase
Price shall be reduced at Closing by all insurance proceeds actually awarded to
Seller and not expended for restoration of the Property.
13. COVENANT NOT TO COMMIT WASTE OR SALVAGE OR REMOVE TREES. Seller
agrees not to commit or permit waste upon the Property, salvage or remove
anything from the Property including trees, without Purchaser's written
approval. Seller covenants that the Property shall remain in the same
condition at Closing as it is at the time this Agreement is made, excepting
natural wear and tear and as provided for in Paragraphs 11 and 12 hereof.
14. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants the following to Purchaser:
a. Seller has entered into no agreement oral or written, not
referred to herein, with reference to the Property and to Seller's actual
knowledge neither Seller nor the Property are subject to any claim, demand,
suit unfiled lien, proceeding or litigation of any kind, pending or
outstanding, or threatened or likely to be made or instituted which would in any
way be binding upon Purchaser or its successors or assigns, or affect or limit
Purchasers or its successors or assigns', full use and enjoyment of the Property
or which would limit or restrict Seller's right or ability to enter into this
Agreement and consummate the sale and purchase contemplated hereby;
b. While this Agreement is in full force and effect Seller
shall not (i) enter into any other option or sales contract for the
Property (or any portion thereof) that is not expressly contingent on the
termination of this Agreement (ii) execute any deeds, restrictive covenants or
right of way agreements, or apply for or consent to any zoning change affecting
the Property or take any other action that would materially adversely affect the
Property or Purchaser's rights under this Agreement; or (iii) grant any
casement, license or right to use the Property or portion thereof without
Purchaser's written approval which shall not be unreasonably withheld or
delayed;
c. To Seller's actual knowledge, there are no taxes, charges,
or assessments of any nature or description, arising out of the conduct
of Seller's business or the operation of the Property, which would constitute a
lien against the Property that will be unpaid or not bonded at the date of the
Closing, except for the lien of the applicable year's ad valorem property taxes;
d. The Property has not been used by Seller for the
generation, treatment storage or disposal of any hazardous waste or
other hazardous or toxic substances. To Sellers actual knowledge, (i) there are
no toxic wastes, hazardous chemicals or nuclear wastes or similar materials
(removal of which is required by or the maintenance of which is restricted,
prohibited or penalized by an federal. state or local agency, authority or
governmental unit) in, attributable to or affecting the Property; (ii) there are
no landfills or dumping grounds containing decomposable materials located on the
Property; and (iii) there are no underground storage tanks or pumps on,
connected to or related to, in any way, the Property. Seller will not, after
the Effective Date of this Agreement and up through Closing, place or allow to
be placed on, installed on, or under the Property, any such toxic or hazardous
wastes or materials, decomposable materials or underground facilities; and
e. That all representations, warranties and agreements of
Seller contained in this Agreement are true and correct as of the date hereof
and will be true and correct as of the date of Closing.
As used in this Paragraph 14, "ACTUAL KNOWLEDGE" shall mean and refer to the
actual knowledge of H. Xxx Xxxxx, without any duty of obligation to inquire as
to such matters, and the knowledge of any other former or current employees,
officers, directors or agents of Seller or any subsidiaries or affiliate of
Seller shall not be imputed to Seller. Seller acknowledges that H. Xxx Xxxxx is
the current employee of Seller directly responsible for the Property. Except
for the express representations and warranties of Seller set forth in this
Agreement Purchaser acknowledges and agrees that the Property is being sold,
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conveyed and assigned to Purchaser hereunder "AS IS, WHERE IS, AND WITH ALL
FAULTS," without any other representation or warranty by Seller, and Seller has
not made and is not making any other express or implied representations or
warranties with respect to the Property, including, without limitation, any
other representation regarding condition, merchantability or fitness for any
particular purpose, zoning, subdivision requirements, the presence or existence
of hazardous substances, hazardous materials, and hazardous wastes, any other
environmental matters, suitability of sod or geology, and any past, present or
future operating results, including expenses; and except for the
representations and warranties expressly set forth in this Agreement, Purchaser
acknowledges that Purchaser accepts the Property, without relying upon any such
representation or warranty by Seller or by any other person and based solely
upon Purchaser's own inspections, investigations, and analysis of the Property,
and Purchaser hereby expressly renounces and waives any claim or cause of
action it may have against Seller under an existing or future theory of law for
any such matters.
15. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants the following to Seller:
a. The execution and delivery and performance under this
Agreement by Purchaser does not and will not result in any violation of,
or be in conflict with or constitute a default under any agreement mortgage,
deed to secure debt, deed of trust, indenture, license, security agreement, or
any other instrument or any judgment, decree, order, statute, rule or
governmental regulation;
b. No consent approval or authorization of or registration,
qualification, designation, declaration, or filing with any governmental
authority is required in connection with the execution and delivery of and
performance of this Agreement by Purchaser, and
c. That all representations, warranties and agreements of
Purchaser contained in this Agreement are true and correct as of the
date hereof and will be true and correct as of the date of Closing.
16. LIKE-KIND EXCHANGE. Subject to the provisions of subparagraphs 16.a.
and 16.b. below, Purchaser agrees to cooperate with Seller in the event that
Seller desires to effect an exchange of the Property for "like-kind" property
in accordance with Section 1031 of the Internal Revenue Code.
a. Purchaser shall incur no additional expenses whatsoever in
connection with Seller's consummation of the "like-kind" exchange and all such
additional costs shall be paid by Seller, including any additional attorney's
fees actually incurred and paid as a direct result of Seller's consummation of
the "like-kind" exchange.
b. Anything in this Agreement to the contrary notwithstanding,
should Seller for any reason be unable to make arrangements for the
disposition of the Property in a "like-kind" exchange, including a deferred
"like-kind" exchange arrangement (other than by reason of Purchaser's failure
or refusal to perform), then, in such event, the purchase of the Property shall
be consummated in accordance with the terms and conditions of this Agreement
just as though the provisions of this Paragraph had been omitted herefrom.
18. DISPUTES BETWEEN SELLER AND PURCHASER, Notwithstanding anything in
this Agreement to the contrary, in the event of a dispute between Seller and
Purchaser sufficient in the sole discretion of Escrow Agent to justify its
doing so, Escrow Agent shall be entitled to tender into the registry or
custody of any court of competent jurisdiction the Xxxxxxx Money, together
with such pleadings as it may deem appropriate, and thereupon on be discharged
from all further
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duties and liabilities for the Xxxxxxx Money.
19. DEFAULT AND REMEDIES.
a. Seller's Default. In the event Seller defaults or fails
to perform any of the covenants and conditions of the Seller in this
Agreement, Purchaser's sole and exclusive remedy at law or in equity shall be to
give written notice to Seller and Escrow Agent and for Seller to pay Purchaser
an amount equal to the amount of the Xxxxxxx Money, as full liquidated damages.
The parties acknowledge that Purchaser's actual damages in the event of a
default by Seller under this Agreement will be difficult to ascertain, that such
liquidated damages represent the parties' best estimate of such damages and that
the parties believe such liquidated damages are a reasonable estimate of such
damages. The parties expressly acknowledge that the foregoing liquidated
damages are intended not as a penalty, but as full liquidated damages, as
permitted by O.C.G.A. Section 13-6-7, in the event of Seller's default and as
compensation for Purchaser's entering into this Agreement and performing due
diligence with respect to the Property. Such receipt of an amount equal to the
amount of the Xxxxxxx Money shall be the sole and exclusive remedy of Purchaser
by reason of a default by Seller under this Agreement, and Purchaser hereby
waives and releases any right to xxx Seller, and hereby covenants not to xxx
Seller, for specific performance of this Agreement or to prove that Purchaser's
actual damages exceed the amount which is herein provided Purchaser as full
liquidated damages. Upon termination of this Agreement on account of Seller's
default, Escrow Agent shall refund the Xxxxxxx Money to Purchaser.
b. Purchaser's Default. In the event Purchaser defaults or
fails to perform any of the covenants and conditions of the Purchaser of
this Agreement, Seller's sole and exclusive remedy at law or in equity shall be
to give written notice to Purchaser and Escrow Agent and for Escrow Agent to pay
to Seller the Xxxxxxx Money, as full liquidated damages. The parties
acknowledge that Seller's actual damages in the event of a default by Purchaser
under this Agreement will be difficult to ascertain, that such liquidated
damages represent the parties' best estimate of such damages and that the
parties believe such liquidated damages are a reasonable estimate of such
damages. The parties expressly acknowledge that the foregoing liquidated
damages arc intended not as a penalty, but as full liquidated damages, as
permitted by O.C.G.A. Section 13-6-7, in the event of Purchaser's default and as
compensation for Sellers taking the Property off the market during the term of
this Agreement. Such retention of the Xxxxxxx Money shall be the sole and
exclusive remedy of Seller by reason of a default by Purchaser under this
Agreement, and Seller hereby waives and releases any right to xxx Purchaser, and
hereby covenants not to xxx Purchaser, for specific performance of this
Agreement or to prove that Seller's actual damages exceed the Xxxxxxx Money
which is herein provided Seller as full liquidated damages.
20. COMPLETE AGREEMENT. This Agreement represents the complete
understanding and agreement between the parties hereto and supersedes all prior
negotiations, representations or agreements, written or oral as to the matters
contained herein. This Agreement may be amended only by written instrument
signed by Purchaser and Seller. No requirement, provision, obligation or remedy
of this Agreement shall be deemed waived unless done so expressly, in writing.
A waiver, however, once given, is not continuous, and the granting of a waiver,
shall not limit the right to enforce such provision thereafter.
21. SURVIVAL. Except for Paragraph 9 and the indemnities contained in
subparagraphs 4.a. and 5.b. hereof, no terms, conditions, representations and
provisions contained herein shall survive the Closing or termination hereof.
22. NOTICES. Notices, elections and communications required hereunder
shall be in writing and considered given when tendered to a nationally
recognized overnight courier service, or deposited as U.S. Postal Service
registered or certified mail return receipt requested and postage prepaid,
using the addresses set forth below; provided, however, that a party's time
period for responding to any such notice deemed to have been duly given shall
not commence until such notice has been actually received at the other party's
address.
SELLER: SunTrust Bank, Atlanta
X.X. Xxxxx - 052
X.X. Xxx 0000
Xxxxxxx, XX 00000
With Copy to: Xxxx, Xxxxxxx & Company
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000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
PURCHASER: Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Any party may, from time to time, by notice as herein provided, designate a
different address or contact person to which notices shall be sent.
23. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
24. BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of all parties hereto and their respective permitted successors
and assigns.
25. CAPTIONS AND HEADINGS. Captions and headings throughout this
Agreement are for convenience and reference only and the words contained
therein shall in no way be held to define or add to the interpretation,
construction, or meaning of any provision.
26. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and when attached
hereto shall constitute a single instrument.
27. SEVERABILITY. Should any portion of this Agreement or the application
thereof to any person or circumstance be invalid or unenforceable to any extent
by law, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby, and shall be
enforced to the greatest extent permitted by law.
28. PERFORMANCE DEADLINES. Notwithstanding anything herein to the
contrary, in event the final date of performance by either party to this
Agreement of any condition or obligation hereunder falls upon a non-business
day (i.e., Saturday, Sunday, national holiday or local holiday recognized by
major Atlanta, Georgia banks), the final date for performance of such condition
or obligation shall be extended automatically and without notice until the next
succeeding business day.
29. ASSIGNMENT. Purchaser shall not assign this Agreement without prior
written consent of Seller, which consent shall not be unreasonably withheld.
30. OFFER AND ACCEPTANCE DEADLINE. This Agreement and the obligations of
Purchaser herein are conditioned upon this Agreement being fully executed by
Seller and returned to Purchaser on or before DECEMBER 18, 1995. At 5:00 P.M.
If this Agreement is not so executed and delivered it will be deemed null and
void and of no legal effect.
31. TIME OF ESSENCE. Time is of the essence in this Agreement.
32. The Property is restricted against the use as a financial institution
until after January 16, 1996.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date set forth on the first page hereof.
SIGNATURES ON FOLLOWING PAGE
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SELLER:
SUNTRUST BANK, ATLANTA
By: /s/ X. X. Xxxxx
----------------------------
X. X. Xxxxx, RPA
First Vice President
By: /s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
Assistant Vice President
[BANK SEAL]
PURCHASER:
SBC PROPERTIES, LLC, A GEORGIA LIMITED LIABILITY COMPANY
IN FORMATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
Manager
BROKER:
XXXX, XXXXXXX & COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
Partner
CO-BROKER:
XXXXX - XXXXXXX COMPANY
By:
-----------------------------
Xxxx X. Xxxxx
ESCROW AGENT:
XXXX, XXXXXXX & COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
Partner
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EXHIBIT A
14. 8
ALL THAT TRACT or parcel of land lying and being in Land Lot 578 and 579
of the 17th District, Second Section, Xxxx County, Georgia, and being more
particularly described as follows:
BEGIN at an iron pin set on the northeasterly right-of-way line of Franklin
Road (with a width as shown on the below survey), which pin is located 657.40
feet in a southeasterly direction from the point formed by the intersection of
said right-of-way line with the southerly right-of-way line of the Marietta
Xxxxxxx-Xxxxx Xxxx 000 Xxxx; running thence North 34 degrees 00 minutes 00
seconds East, a distance of 248.33 feet to an iron pin set; running thence
South 54 degrees 12 minutes 01 second East, a distance of 209.95 feet to an
iron pin set on the northwesterly right-of-way line of a proposed road (having
an 80'-wide right-of-way); running thence in a southwesterly direction along
said right-of-way line and along the arc of a curve having a radius of 660'
(said arc being subtended by a chord with a bearing of South 33 degrees 50
minutes 23 seconds West with a length of 3.69 feet) a distance of 3.69 feet to
a point; running thence along said right-of-way line South 34 degrees 00
minutes 00 seconds West a distance of 244.64 feet to an iron pin set on the
northeasterly right-of-way line of Franklin Road; running thence along said
right-of-way line of Franklin Road North 54 degrees 42 minutes 00-seconds West,
a distance of 156.71 feet to a point; thence continuing along said right-of-way
line and along the arc of a curve having a radius of 764.51 feet (said arc
being subtended by a chord on a bearing of North 52 degrees 43 minutes 41
seconds West with a length of 53.28 feet) a distance of 53.29 feet to the POINT
OF BEGINNING; said tract or parcel of land containing 1.200 acres, all
according to a Plat of Survey by Xxxx X. Xxxxx, Georgia Registered Land
Surveyor No. 1875, dated September 2, 1983, and last revised April 3, 1984.
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EXHIBIT "B"
(Permitted Exceptions)
1. Zoning Ordinances Affecting the Property.
2. General Utility Easements serving the Property.
3. Ad valorem real property taxes for the current year, not yet due and
payable.
4. Reciprocal easement agreement by and between Parkway 75 Shopping Center
Associates, LTD, and SUNTRUST BANK, ATLANTA of Xxxx County, NA, dated
April 9, 1984, Recorded in Deed Book 3096, Page 192, Xxxx County, Georgia.
5. Easement from SUNTRUST BANK, ATLANTA of Xxxx County, NA, to LaSalle Fund
III, dated February 28, 1990, Recorded in Deed Book 5660, Page 437, Xxxx
County, Georgia.
6. Restrictions contained in Warranty Deed by and between Parkway
Associates, LTD and SUNTRUST BANK, ATLANTA of Xxxx County, NA, dated
April 9, 1984, Recorded in Book 3093, Page 449-503, Xxxx County, Georgia.
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EXHIBIT "C"
After recording, return to:
___________________________
___________________________
___________________________
___________________________
LIMITED WARRANTY DEED
THIS INDENTURE, made as of the __ day of _______, ____, between SUNTRUST
BANK, ATLANTA, a Georgia banking corporation (hereinafter referred to
"Grantor") and _______________________, a __________________ (hereinafter
referred to as "Grantee") (the words "Grantor" and "Grantee" to include
their respective heirs, legal representatives, successors, and assigns where
the context requires or permits);
W I T N E S S E T H: THAT
Grantor, for and in consideration of the sum of TEN AND NO/1OO DOLLARS
($10.00) and other good and valuable consideration in hand paid at and before
the sealing and delivery of these presents, the receipt and sufficiency whereof
are hereby acknowledged, has granted, bargained, sold, aliened, conveyed, and
confirmed, and by these presents does grant, bargain, sell, alien, convey, and
confirm unto Grantee, all those tracts or parcels of land lying and being in
Land Lot ____ of the ____ District of _______ County, Georgia, being more
particularly described in Exhibit "A", attached hereto and incorporated herein
by this reference (hereinafter referred to as the "Land");
TOGETHER WITH all buildings, structures, and improvements thereon and all
rights, members, easements, and appurtenances appertaining to the Land and all
right, title, and interest of Grantor in and to alleys, streets, and
rights-of-way adjacent to or abutting the Land (the Land, together with the
foregoing, is hereinafter referred to as the "Property");
TO HAVE AND TO HOLD the Property, without warranty as to the matters set
forth in Exhibit "B" hereto, with all and singular the rights, members, and
appurtenances thereof, to the same being, belonging, or in anywise appertaining
to the only proper use, benefit, and behoof of Grantee forever in FEE SIMPLE;
AND Grantor will warrant and forever defend the right and title to the
Property unto Grantee against the claims of all persons whomsoever claiming by,
through or under Grantor, except as to claims arising under those matters set
forth in Exhibit "B" hereto.
IN WITNESS WHEREOF, Grantor has signed and sealed this deed, the day and
year first above written.
GRANTOR:
Signed, sealed, and deliv-
ered in the presence of: SUNTRUST BANK, ATLANTA,
a Georgia banking corporation
_______________________________
Witness By: __________________________________
Name: H. Xxx Xxxxx
Title: First Vice Pres.
_______________________________
Notary Public
By: __________________________________
My Commission Expires: Name: ______________________
Title:______________________
_______________________________ [BANK SEAL]
[NOTARIAL SEAL]
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EXHIBIT "D"
SELLER'S AFFIDAVIT
Personally appeared before me __________ ("Deponent"), who, being
duly sworn according to law deposes and says to the best of his knowledge and
belief, as follows:
1. That Deponent is _____________ of SUNTRUST BANK, ATLANTA, a
Georgia banking corporation ("Seller"),and as such is familiar with the
matters set forth herein, which are stated to the best of both knowledge;
2. That TCB owns the fee simple interest in and to that certain
tract or parcel of land described Exhibit "A", attached hereto and
incorporated herein by this reference (the "Property");
3. That the lines and corners of the Property are clearly marked, and
there is no pending litigation dispute regarding such lines and corners;
4. That all improvements on the Property are within the boundary
lines of the Property and do not encroach on any other land;
5. That there has been no violation of any restriction that may have
been imposed on the Property any predecessor in title to the Property,
governmental authority, or any other person or entity whatsoever;
6. That no improvements or repairs have been made upon the Property
by Seller during the ninety-five (95) days immediately preceeding the
date hereof or, in the event such improvements or repairs have been made,
that they are completed and that all costs incurred in connection
therewith have been fully paid or will be paid in the ordinary course of
business; that there are no outstanding bills incurred by Seller for
labor, services and/or materials used in making improvements or repairs
on the Property, or for services of architects, surveyors or engineers in
connection therewith
7. That all assessments and bills payable by Seller for
utilities used in connection with the Property including, but not limited
to, sidewalk or other street improvements and water and sewer assessments
and/or service, paid through the date hereof;
8. That there are no pending suits, proceedings, judgments,
bankruptcies, executions, liens (other than the lien for ad valorem taxes
not yet due and payable as of the date hereof), claims of lien, taxes,
special assessments sewerage or street improvements, deeds to secure debt,
mortgages, or other encumbrances, or tenancies, assessment restrictions
encroachments, leases, subleases, occupancies, easements, prescriptive
easements or rights-of-way or use. Authorization ordinances for streets,
sewerage, or other public improvements that could in any way either
affect the to or possession of the Property or constitute a lien
thereon, except as described in Exhibit "B", attached hereto as
incorporated herein by this reference;
9. That there is no outstanding indebtedness of Seller for
equipment, appliances, or other fixtures attached to the Property;
10. That Seller knows of no persons or parties in possession of the
Property other than SUNTRUST BANK, ATLANTA or anyone claiming under it;
11. That, except ____________________ ("Broker"), Seller has not
engaged any "Broker" services (as defined in O.C.G.A. Section 44-14-601)
with regard to the purchase, sale, management, lease, option, or other
conveyance of any interest in the Property; as to Broker, the closing
statement executed in connection with the sale Property to
________________ ("Purchaser") reflects payment in full satisfaction of
all amounts owed to Broker with respect to the Property; and as of the
date hereof, Seller has not received any notice of lien from Broker any
other real estate broker, salesman, agent or similar person relating to
the Property;
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12. That this Affidavit is made with the knowledge that it will be
relied upon by Purchaser in acquiring the Property and by
_______________ Title Insurance Company in issuing an owner's title
insurance policy in favor of Purchaser.
Sworn to and subscribed _____________________
before me this ____ day H. Xxx Xxxxx
of _________________;
_____________________________
Notary Public
My Commission Expires:
_____________________________
[NOTARIAL SEAL]
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EXHIBIT "E"
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform ("Purchaser"), that withholding of tax is not required upon
my disposition of a U.S. real property interest to Purchaser, the undersigned,
hereby certifies the following:
1. SUNTRUST BANK, ATLANTA ("Seller") is not a nonresident alien
for purposes of U.S. income taxation;
2. Seller's taxpayer identification number is
00-0000000; and
3. Seller's address is:
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Real Estate Planning and Construction
I understand that this certification may be disclosed to the Internal Revenue
Service by Purchaser and that any false statement contained herein may be
punished by fine, imprisonment, or both. Under penalties of perjury, I declare
that I have examined this Certification and to the best of my knowledge and
belief it is true, correct, and complete.
Date: ______________
____________________________
H. Xxx Xxxxx
THIS CERTIFICATION MUST BE RETAINED UNTIL THE END OF THE FIFTH TAXABLE YEAR
FOLLOWING THE TAXABLE YEAR IN WHICH THE TRANSFER TAKES PLACE.
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EXHIBIT "F"
AFFIDAVIT OF SELLER'S RESIDENCE
SUNTRUST BANK, ATLANTA 00-0000000
Seller's Name
Seller's Identification Number (SSN or FEI)
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 N/A
Attn: Real Estate Planning and Construction Spouse's Identification Number
Street Address (if jointly owned)
INSTRUCTIONS
This form is provided to be executed by the seller and furnished to the buyer
to establish Georgia residency, such that withholding from the proceeds of the
sale of property are not subject to the withholding laws of this state. (S
O.C.G.A. Section 48-7-128.)
Sellers are not subject to withholding from the proceeds of sale if either
they reside in Georgia, or they are deemed to be Georgia resident by virtue of
the fact that they have filed Georgia tax returns in the preceding two years,
do business or own property in Georgia, intend to file a Georgia Tax return for
the current year, and, if a corporation or limited partnership, a registered
to do business in this State.
Buyer is not required to withhold if this affidavit (or one in substantially
the same form) is submitted to the Department in lieu of a withholding tax
return.
The seller is to execute this affidavit by placing an initial in the blanket
preceding statements which apply.
Seller is exempt from withholding on the sale of property because:
XX
________________ Seller, is a resident of Georgia
Seller is not a resident of Georgia, but is deemed a resident for purposes of
withholding by virtue of the following:
________________ Seller is a nonresident who has filed Georgia tax returns for
the preceding two years; and
________________ Seller is an established business in Georgia and will
continue substantially the same business in Georgia at
the sale OR the seller has real property in the State at the
time of closing of equal or greater value than withholding
tax liability as measured by the 100% property tax assessment
of such remaining property, and
________________ If seller is a corporation or limited partnership, seller is
registered to do business in Georgia; and
________________ Seller will report the sale on a Georgia Income Tax Return
for the current year and file by its due date.
Under penalty of perjury, I swear that the above information is, to the best
of my knowledge and belief, true, correct, and complete.
_________________________________________ _____________________________
H. Xxx Xxxxx, First Vice President Date
Seller's signature (and Title, if applicable)
Sworn to and subscribed before me
this ___ day of __________________.
_____________________________________
Notary Public
My commission expires:
_____________________________________
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