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EXHIBIT 10
Property Name: RIDGEPORT PLAZA
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made between
BANK OF AMERICA, N.A., a national banking association ("Seller"), and Southern
Community Bank, a state banking association ("Purchaser").
In consideration of the mutual covenants herein contained, Seller and
Purchaser agree as follows:
1. PURCHASE AND SALE
1.1 PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, the following described property (herein
collectively called the "Property"):
(a) LAND. That certain tract of land (the "Land") located in
Colier County, Florida, being more particularly described on EXHIBIT
A, attached hereto and incorporated herein by reference together with
all improvements, if any, located thereon;
(b) EASEMENTS. All easements, if any, benefiting the Land;
(c) RIGHTS AND APPURTENANCES. All rights and appurtenances
pertaining to the foregoing, if any, including any right, title and
interest of Seller, if any, in and to adjacent streets, alleys or
rights-of-way;
(d) IMPROVEMENTS. All improvements (the "Improvements") in
and on the Land; and
(e) TANGIBLE PERSONAL PROPERTY. Subject to the provisions of
SECTION 9.2 hereinafter, all of Seller's right, title and interest in
all appliances, fixtures, equipment, machinery, furniture, carpet,
drapes and other personal property, if any, located on or about the
Land and the Improvements (the "Tangible Personal Property").
2. PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Property shall be ONE MILLION TWO HUNDRED THOUSAND AND NO/100 DOLLARS
($1,200,000) and shall be paid by Purchaser to Seller at the Closing (as
defined in SECTION 6.1). The Purchase Price shall be payable at Closing in
United States currency as provided in Section 6.6(a) below.
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3. EARNEST MONEY
3.1 EARNEST MONEY. Within forty-eight (48) hours after notice to
Purchaser that Purchaser's bid has been accepted by Seller and Seller has
executed this Agreement, Purchaser shall deliver to ROETZEL & ANDRESS, P.A.
(the "Escrow Agent") as escrow agent, by cashier's check or wired funds, a
deposit in an amount equal to ten percent (10%) of the Purchase Price in cash
(such amount, together with all interest, if any, earned thereon being referred
to as the "Earnest Money"), to be invested by the Escrow Agent in an account as
Purchaser and Seller shall direct, together with a W-9 form. If the sale of the
Property is consummated pursuant to the terms of this Agreement, the Earnest
Money shall be paid to Seller and applied to the payment of the Purchase Price.
If Purchaser terminates this Agreement in accordance with any right to
terminate that Purchaser is granted by the terms of this Agreement, the Earnest
Money shall be immediately returned to Purchaser, and no party hereto shall
have any further obligations under this Agreement except for the obligations
specified in SECTION 4.2 and SECTION 10.2. Simultaneously herewith, Purchaser
and Seller shall enter into with Escrow Agent an Escrow Agreement in the form
attached hereto as Exhibit "B", with regard to the Earnest Money.
4. CONDITIONS TO CLOSING
4.1 TITLE COMMITMENT, SURVEY AND PHASE I ENVIRONMENTAL SITE
ASSESSMENT.
(a) Prior to the execution of this Agreement, Seller has
delivered to Purchaser for Purchaser's review, (i) a commitment for
title insurance (the "Title Commitment") for an Owner's Policy of
Title Insurance issued by Chicago Title Insurance Company ("Title
Company"); (ii) a current survey of the Property (the "Survey"); and
(iii) a Phase I Environmental Site Assessment of the Property (the
"Environmental Audit").
(b) Seller shall deliver to Purchaser within thirty (30) days
after the execution of this Agreement, (i) an endorsement to the Title
Commitment (the "Endorsement"), naming Purchaser as the insured and
updating the effective date of the Title Commitment; (ii) an updated
Survey certifying the Survey to Purchaser and updating the effective
date of the Survey; and (iii) a certificate executed by the
environmental consultant certifying the Environmental Audit to
Purchaser and authorizing Purchaser to rely upon the Environmental
Audit.
(c) Purchaser shall have five (5) days after receipt of the
Endorsement and updated Survey (the "Approval Period") within which to
review the Endorsement and updated Survey and to object to any
material change to the Title Commitment and Survey as disclosed by the
Endorsement and updated Survey. If Purchaser fails to object to any
such change by written notice to Seller within the Approval Period,
Purchaser shall be deemed to have approved any such change. If
Purchaser objects to any such change by written notice to Seller
during the Approval Period, Seller shall have the right (without any
obligation to do so) to cure or attempt to cure Purchaser's objection
to such change within ten (10) days after Purchaser's notice of
objection, or, if sooner, by the Closing Date, as hereinafter defined.
In the event Seller is unable to or elects not to cure any one or more
of Purchaser's objections, Seller shall notify Purchaser in writing of
such election (the "Election Notice'), and Purchaser may at its option
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terminate this Agreement by notifying Seller in writing within three
(3) days after receiving the Election Notice, in which event the
Escrow Agent shall return the Earnest Money to Purchaser and the
parties shall have no further liability to one another, except as
specifically set forth herein. If Purchaser fails to terminate the
Agreement within three (3) days after receiving the Election Notice,
Purchaser shall be deemed to have waived such objection and the
Agreement shall proceed to Closing. The term "Permitted Exceptions",
as used herein, shall mean (i) the title exceptions listed in Schedule
B of the Title Commitment which Purchaser approves or is deemed to
approve pursuant to this SECTION 4.1, (ii) any general exceptions and
exclusions contained in the standard owner's policy of the Title
Company that are not deleted pursuant to the Owner's Affidavit, and
(iii) the exceptions listed on the Special Warranty Deed attached as
Exhibit C hereto.
4.2 CONFIDENTIALITY. All information i provided by Seller to Purchaser
or obtained by Purchaser relating to the Property in the course of its review,
including, without limitation, any environmental assessment or audit, shall be
treated as confidential information by Purchaser and Purchaser shall instruct
all of its employees, agents, representatives and contractors as to the
confidentiality of all such information. Purchaser will not, except with the
express prior written consent of Seller, directly or indirectly, (a) disclose
or permit the disclosure of any information to any person or entity, except
persons who are bound to observe the terms hereof, or (b) use or permit the use
of all information pertaining to the Property (1) in any way detrimental to the
Seller or (2) for any purpose other than evaluating the contemplated purchase
of the Property. Purchaser agrees, that if the closing does not occur,
Purchaser will promptly return to the Seller or its authorized agent all
written or tangible information pertaining to the Property, including all
copies or extracts thereof, and all notes based upon the information. Neither
the Seller, nor any of its officers, directors, employees, agents or
representatives, shall be deemed to make or have made any representation or
warranty as to the accuracy or completeness of any information pertaining to
the Property or whether or not the information provided constitutes all of the
information available to the Seller; and neither the Seller nor any of its
officers, directors, employees, representatives or agents shall have any
liability resulting from Purchaser's use of any information pertaining to the
Property. Notwithstanding anything to the contrary set forth in this Agreement,
the obligations of Purchaser set forth in this SECTION 4.2 shall survive the
Closing or the termination of this Agreement, as applicable.
4.3 TERMINATION. If this Agreement is terminated pursuant to SECTION
4.1 above, the Earnest Money will be promptly refunded to Purchaser and neither
party shall have any further obligations under this Agreement except with
respect to the obligations specified in SECTION 4.2, this SECTION 4.3 and
SECTION 10.2. Purchaser shall, within ten (10) days of such termination,
deliver to Seller copies of the Title Commitment, Survey, Environmental Audit
and any updates, all feasibilitv studies, engineering reports and all other
information obtained by Purchaser with respect to the Property.
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5. NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
5.1 DISCLAIMER. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER I-LAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES (OTHER THAN THE WARRANTY OF TITLE AS SET OUT IN THE
SPECIAL WARRANTY DEED, AS DEFINED BELOW, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED,
ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT
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 COMPLIANCE OF
OR BY THE PROPERTY OR ITS OPERATION 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, AND SPECIFICALLY, THAT SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE,
ZONING OR DEVELOPMENT OF REGIONAL IMPACT LAWS, RULES, REGULATIONS, ORDERS OR
REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS
MATERIALS (AS DEFINED BELOW). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER AND AT THE CLOSING AGREES TO ACCEPT THE
PROPERTY AND WAIVE ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT
LIMITED T0, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE
PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH
RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
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INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY,
OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR
HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS
UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED
BY PURCHASER SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION .5 SHALL
SURVIVE THE CLOSING.
5.2 HAZARDOUS MATERIALS. "Hazardous Materials" shall mean any
substance which is or contains (i) any "hazardous substance" as now or
hereafter defined in the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. ss.9601 et seq.) ("CERCLA") or
any regulations promulgated under or pursuant to CERCLA; (ii) any "hazardous
waste" as now or hereafter defined in the Resource Conservation and Recovery
Act (42 U.S.C. ss.6901 et seq.) ("RCRA") or regulations promulgated under or
pursuant to RCRA; (iii) any substance regulated by the Toxic Substances Control
Act (15 U.S.C. ss.2601 et seq.); (iv) gasoline, diesel fuel, or other petroleum
hydrocarbons; (v) asbestos and asbestos containing materials, in any form,
whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon
gas; and (viii) any additional substances or materials which are now or
hereafter classified or considered to hazardous or toxic under Environmental
Requirements (as hereinafter defined) or the common law, or any other
applicable laws relating to the Property. Hazardous Materials shall include,
without limitation, any substance, the presence of which on the Property, (A)
requires reporting, investigation or remediation under Environmental
Requirements; (B) causes or threatens to cause a nuisance on the Property or
adjacent property or poses or threatens to pose a hazard to the health or
safety of persons on the Property or adjacent property; or (C) which, if it
emanated or migrated from the Property, could constitute a trespass.
5.3 ENVIRONMENTAL REQUIREMENTS. Environmental Requirements shall mean
all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which, the Property is located, and other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating
to pollution, the protection or regulation of human health, natural resources,
or the environment, or the emission, discharge, release or threatened release
of pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
5.4 RADON NOTICE. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT
EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM
YOUR COUNTY PUBLIC HEALTH UNIT.
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5.5 ENVIRONMENTAL RISKS. Purchaser acknowledges that there are, or may
be, certain environmental issues and/or risks with respect to the Property.
5.6 INDEMNITY. Purchaser hereby expressly acknowledges that from and
after the Closing. Purchaser shall be responsible and liable for the proper
maintenance and handling of any and all Hazardous Materials, if any, located in
or on the Property or in the Improvements in accordance with all Environmental
Requirements, including the regulations at 40 C.F.R. Section 61 as authorized
under the Clean Air Act and all regulations promulgated or to be promulgated
under all other applicable local, state or federal laws, rules or regulations,
as same may be amended from time to time. Furthermore, from and after Closing,
Purchaser shall indemnify and hold Seller harmless from and against any and all
claims, costs, damages or other liability, including attorney's fees; incurred
by Seller as a result of any Hazardous Materials being located now or
previously on the Property or in the Improvements or as a result of Purchaser's
failure to comply with the requirements of this Section in connection with
Purchaser's proper maintenance and handling of any and all Hazardous Materials,
if any, located in or on the Property or in the Improvements. This
Indemnification shall survive the Closing of this Agreement.
5.7 RELEASE. Purchaser, on behalf of itself and its heirs, successors
and assigns hereby waives, releases, acquits and forever discharges Seller, its
officers, directors, shareholders, employees, agents, attorneys,
representatives, and any other persons acting on behalf of Seller and the
successors and assigns of any of the preceding, of and from any and all claims,
actions, causes of action, demands, rights, damages, costs, expenses or
compensation whatsoever, direct or indirect, known or unknown, foreseen or
unforeseen, which Purchaser or any of its heirs, successors or assigns now has
or which may arise in the future on account of or in any way related to or in
connection with any past, present, or future physical characteristic or
condition of the Property or the Improvement:, including, without limitation,
any Hazardous Materials in, at, on, under or related to the Property or the
improvements, or any violation or potential violation of any Environmental
Requirement applicable thereto. Notwithstanding anything to the contrary set
forth herein, this release shall survive the Closing or termination of this
Agreement.
6. CLOSING
6.1 CLOSING. The closing (the "Closing") shall be held at a mutually
acceptable location to Seller and Purchaser at 10:00 a.m. on or before that
date designated by Seller which is not less than forty-five (45) days after the
date hereof but not, more than ninety (90) days after the date hereof (the
"Closing Date"), unless the parties mutually agree upon another time or date.
6.2 POSSESSION. Possession of the Property shall be delivered to
Purchaser at the Closing, subject to the Permitted Exceptions.
6.3 PRORATION: TAXES. At Closing, pro-rations of income and expense
and the apportionment of taxes shall be as follows:
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(a) All rents, income, utilities and all other operating
expenses with respect to the Property, if any, for the month in which
the Closing occurs, and real estate and personal property taxes and
other assessments with respect to the Property for the year in which
the Closing occurs, shall be prorated as of the date of Closing.
(b) Taxes shall be prorated based upon the maximum allowable
discount and all applicable exemptions. If the Closing shall occur
before the tax rate or the assessed valuation of the Property is fixed
for the then current year, the apportionment of taxes shall be upon
the basis of the tax rate for the preceding year applied to the latest
assessed valuation. Subsequent to the Closing, when the tax rate and
the assessed valuation of the Property are fixed for the year in which
the Closing occurs, the parties agree that there shall be no
adjustment of such taxes.
(c) The agreements of Seller and Purchaser set forth in this
SECTION 6.3 shall survive the Closing.
6.4 CLOSING COSTS. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, all of the cost of the preparation of
the deed, any documentary stamps on the deed and surtax, if any, and certified
and pending municipal special assessment liens for which the work has been
substantially completed, and Purchaser shall pay, on the Closing Date, the cost
of the Title Commitment, including, without limitation, the cost of a title
search or abstract of the Property, and the premium for the Owner's Policy, all
recording costs, intangible tax on any mortgage, documentary stamps on any
note, pending special assessment liens for which the work has not been
substantially completed, the cost of any inspections, and any other customary
charges and costs of closing. In addition, Purchaser shall reimburse Seller for
the cost of the Survey and Environmental Audit and updates and recertifications
thereof. Except as otherwise provided herein, each party shall pay its own
attorneys' fees.
6.5 SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller shall
deliver to Purchaser each of the following documents but in no event earlier
than the delivery to Seller of all of the proceeds of sale of the Property by
wire transfer or immediately available U.S. funds:
(a) DEED. Special Warranty Deed (the "Deed") executed by
Seller conveying the Land and the Improvements located thereon to
Purchaser subject to no exceptions other than the Permitted
Exceptions, in the form attached to this Agreement as EXHIBIT C.
(b) EVIDENCE OF AUTHORITY. Copy of such documents and
resolutions as may be acceptable to the Title Company, so as to
evidence the authority of the person signing the Deed and other
documents to be executed by Seller at the Closing and the power and
authority of Seller to convey the Property to Purchaser in accordance
with this Agreement.
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(c) FOREIGN PERSON. An affidavit of Seller certifying that
Seller is not a "foreign person", as defined in the Federal Foreign
Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform
Act, as amended.
(d) OWNER'S AFFIDAVIT. An executed affidavit or other
document acceptable to the Title Company in issuing the Owner's Policy
without exception for possible lien claims of mechanics, laborers and
materialmen or for parties in possession, as applicable.
(e) BILL OF SALE AND ASSIGNMENT. Bill of Sale and Assignment
(the "Bill of Sale") executed by Seller assigning to Purchaser the
Tangible Personal Property, in the form attached to this Agreement as
EXHIBIT D.
(f) CLOSING STATEMENT. A closing statement setting forth the
allocation of closing costs, purchase proceeds, etc.
6.6 PURCHASER'S OBLIGATIONS AT THE CLOSING. At the Closing, Purchaser
shall deliver to Seller the following:
(a) PURCHASE PRICE. The Purchase Price by wire transfer of
immediately available U.S. funds;
(b) EVIDENCE OF AUTHORITY. Such consents and authorizations
as Seller may reasonably deem necessary to evidence authorization of
Purchaser for the purchase of the Property, the execution and delivery
of any documents required in connection with Closing and the taking of
all action to be taken by the Purchaser in connection with Closing;
and
(c) OTHER - DOCUMENTATION. Such other documents as may be
reasonable and necessary in the opinion of the Seller or its counsel
to consummate and close the purchase and sale contemplated herein
pursuant to the terms and provisions of this Agreement.
7. RISK OF LOSS
7.1 CONDEMNATION. If, after the date of this Agreement and prior to
the Closing, action is initiated to take any of the Property by eminent domain
proceedings or by deed in lieu thereof, Purchaser may either (a) terminate this
Agreement, or (b) consummate the Closing, in which latter event the award of
the condemning authority shall be assigned to Purchaser at the Closing. If,
prior to the date of this Agreement, an action has been initiated to take any
of the Property by eminent domain proceedings or by deed in lieu thereof, any
award made by the condemning authority shall be paid to Seller and the portion
of the Property taken shall be deleted from the Property without a reduction in
the Purchase Price.
7.2 CASUALTY. Seller assumes all risks and liability for damage to or
injury occurring to the Property by fire, storm, accident, or any other
casualty or cause until the Closing has been consummated. If the Property, or
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any part thereof, suffers any damage in excess of $50,000.00 prior to the
Closing from fire or other casualty, which Seller, at its sole option, does not
repair, Purchaser may either (a) terminate this Agreement, or (b) consummate
the Closing, in which latter event the proceeds of any insurance not exceeding
the Purchase Price and covering such damage shall be assigned to Purchaser at
the Closing. If the Property, or any part thereof, suffers any damage less than
or equal to $50,000.00 prior to the Closing, Purchaser agrees that it will
'consummate the Closing and accept the assignment of the proceeds of any
insurance covering such damage at the Closing.
8. DEFAULT
8.1 BREACH BY SELLER. If Seller breaches this Agreement, Purchaser
may, as Purchaser's sole and exclusive remedy hereunder, either (a) terminate
this Agreement and thereupon shall be entitled to the immediate return of the
Earnest Money, or (b) enforce specific performance of this Agreement. In no
event shall Seller be liable to Purchaser for any actual, punitive,
speculative, consequential or other damages of any kind.
8.2 BREACH BY PURCHASER. If Purchaser breaches this Agreement, Seller
may, as Seller's sole remedy and relief hereunder, either (a) terminate this
Agreement and thereupon be entitled to receive the Earnest Money as liquidated
damages (and not as a penalty), or (b) enforce specific performance of this
Agreement. Seller and Purchaser have made the above provision for liquidated
damages because it would be difficult to calculate, on the date hereof, the
amount of actual damages for such breach and that these sums represent
reasonable compensation to Seller for such breach.
8.3 RETURN/DELIVERY OF EARNEST MONEY. In the event the Earnest Money
is returned to the Purchaser, a: provided in SECTION 8.1 above, or delivered to
the Seller, as provided in SECTION 8.2 above, upon the return or delivery of
the same, the parties hereto shall have no further right; obligations or
liabilities with respect to each other hereunder, except for the obligations
specified in SECTION 4.2, SECTION 4.3 and SECTION 10.2 hereof.
9. FUTURE OPERATIONS
9.1 FUTURE OPERATIONS. From the date of this Agreement until the
Closing or earlier termination of this Agreement, Seller will (a) keep and
maintain the Property in substantially the same condition as of the date of
this Agreement, reasonable wear and tear excepted, and (b) promptly advise
Purchaser of any litigation, arbitration or administrative hearing concerning
the Property arising or threatened of which Seller has written notice.
9.2 TRADE FIXTURES AND EQUIPMENT. Purchaser acknowledges that Seller
is currently using the Property as a banking facility. Prior to the Closing,
Seller shall be entitled, at Seller's option, to remove from the Property all
trade fixtures, equipment, furniture, furnishings, appliances, supplies,
records, documents, cash, coin, and other items of moveable personal property
relating to the operation of Seller's business that may be situated upon the
Property (including, without limitation, all safes, vaults, vault doors,
signage, pylons, alarms and security equipment, auxiliary generators, cubicles
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and removable partitions, computers and computer-related equipment,
telecommunication equipment, halon systems, draperies, and decorations) and
such items removed by Seller shall be excluded from the Improvements and
Tangible Personal Property to be conveyed hereunder and shall remain the
property of Seller. Seller shall have no obligation to repair any damage to the
Property caused by the removal of such items, and Purchaser shall accept the
Property in its then-existing condition at the Closing; provided, however,
Seller shall use its best efforts to minimize any such damage to the Property
caused by the removal of such items.
9.3 RESTRICTIVE COVENANT. Purchaser shall not use or permit the
Property to be used by any person or entity for "retail banking purposes" (the
"Use Restriction") for a period of sixty (60) days from the Closing Date, or,
in the event Seller leases the Property from Purchaser, sixty (60) days after
the lease is terminated (the "Restricted Period"). The term "retail banking
purposes" shall include, without limitation, receiving deposits or making loans
to the general public, whether done by a state bank, national bank, savings and
loan association, credit union or other entity, whether by walk-up or drive-in
teller facility or otherwise. In addition, during the Restricted Period: (i)
there shall be no signage or advertising of any type placed or permitted upon
any portion of the Property that relates to a financial institution, including
Purchaser (the "Signage Restriction"), and (ii) there shall be no public
announcements, advertising, solicitations, business development, notices or
other publications relating in any manner to the present or future operation of
a financial institution, including Purchaser, upon the Property (the
"Advertising Restriction"). In the event of a violation of any of the aforesaid
Restrictions, Seller shall be entitled to pursue all remedies available at law
or in equity, including, without limitation, injunctive relief. In addition,
Seller shall be entitled to recover from Purchaser liquidated damages in the
amount of $2,000.00 per day for any violation of the Use Restriction or Signage
Restriction and $25,000.00 for each and every violation of the Advertising
Restriction. The parties recognize and acknowledge that the foregoing
liquidated damages are reasonable and do not constitute a penalty and are being
imposed due to the difficulty of calculating the actual damages that would
result from a violation of these Restrictions. In the event of any litigation
relating to the enforcement of the provisions contained in this Section, the
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorney's fees. The provisions contained in this SECTION 9.3 shall
survive the Closing.
10. MISCELLANEOUS
10.1 NOTICES. All notices, demands and requests which may be given or
which are required to be given by either party to the other under this
Agreement, and any exercise of a right of termination provided by this
Agreement, shall be in writing and shall be deemed effective when either: (i)
personally delivered to the intended recipient; (ii) three (3) business days
after having been sent, by certified or registered mail, return receipt
requested, addressed to the intended recipient at the address specified below;
(iii) delivered in person to the address set forth below for the party to whom
the notice was given; (iv) at noon of the business day next following after
having been deposited into the custody of a nationally recognized overnight
delivery service such as Federal Express Corporation or Airborne Express,
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addressed to such party at the address specified below; or (v) immediately if
sent during regular business hours or at 8:30 a.m. local time on the next
business day next following an after-hours, weekend or holiday notice sent by
facsimile, telegram or telex, provided that receipt for such facsimile,
telegram or telex is verified by the sender and followed by a notice sent in
accordance with one of the other provisions set forth above. Any notice sent as
required by this section and refused by recipient shall be deemed delivered as
of the date of such refusal. For purposes of this Section 10.1, the addresses
of the parties for all notices are as follows (unless changed by similar notice
in writing given by the particular person whose address is to be changed):
IF TO SELLER: Bank of America, N.A.
400 North Ashley Drive (FL1-010-08-01)
Tampa, Florida 33602
Attention: Monica Ammann, SVP
Ph: (813) 224-5176
Fax: (813) 224-3620
WITH A COPY TO: Bank of America, N.A.
400 North Ashley Drive (FL1-010-15-02)
Tampa, Florida 33602
Attention: Claire Bailey Carraway, Esquire
Ph: (813) 224-5995
Fax: (813) 224-5075
IF TO PURCHASER: Joel E. Whittenhall, Senior Vice President
Southern Community Bank
P.O. Box 1899
Bonita Springs, FL 34144
Ph: (941) 949-6300
Fax: (941) 949-6321
WITH A COURTESY COPY TO: David L. Cook
Lane & Mittendorf, LLP
Bonita Bay Executive Center
Bonita Springs, FL 34138
Ph: (941) 947-7450
Fax:(941) 947-7451
IF TO ESCROW AGENT: Roetzel & Andress, P.A.
2320 First Street, Suite 1000
Fort Myers, Florida 33901
Attn: Steven W. Hubbard, Esquire
Ph: (941) 337-3850
Fax: (941) 337-0970
10.2 REAL ESTATE COMMISSIONS. Seller agrees to pay Lincoln Property
Company Commercial Service Enterprises, Inc. ("Broker") upon the closing of the
transaction contemplated hereby, and not otherwise, a cash commission in
11
<PAGE> 12
accordance with a separate agreement between Seller and Broker. Purchaser
agrees to pay any commission due Purchaser's broker, if applicable. Purchaser
acknowledges that Seller has no obligations, either express or implied, to
Purchaser's broker and that this Agreement shall not create any privy of
contract between Seller and Purchaser's broker.
As used herein, "Acquisition Fees" shall mean all fees paid to any
person or entity in connection with the selection and purchase of the Property
including real estate commissions, selection fees, nonrecurring management and
startup fees, development fees or any other fee of similar nature. Seller and
Purchaser each hereby agree to indemnify and hold harmless the other from and
against any and all claims for Acquisition Fees or similar charges with respect
to this transaction, arising by, through or under the indemnifying party, and
each further agrees to indemnify and hold harmless the other from any loss or
damage resulting from an inaccuracy in the representations contained in this
SECTION 10.2. This indemnification agreement of the parties shall survive the
Closing.
10.3 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between-the parties relative to the subject matter hereof, and there are no
oral or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 AMENDMENT. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 HEADINGS. The captions and headings used in this Agreement are
for convenience only and do not in any way limit, amplify, or otherwise modify
the provisions of this Agreement.
10.6 TIME OF ESSENCE. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Florida, then, in such event, the time of
such period shall be extended to the next day which is not a Saturday, Sunday
or legal holiday.
10.7 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Florida and the laws of the United States pertaining to
transactions in such State. All of the parties to this Agreement have
participated freely in the negotiation and preparation hereof; accordingly,
this Agreement shall not be more strictly construed against and one of the
parties hereto.
10.8 SUCCESSORS AND ASSIGNS: ASSIGNMENT. This agreement shall bind and
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
assigns. Purchaser shall not assign Purchaser's rights under this Agreement
without the prior written consent of Seller.
10.9 INVALID PROVISION. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
12
<PAGE> 13
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 ATTORNEYS' FEES. In the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees, paralegal fees and cost incurred in such suit at trial,
appellate, bankruptcy and/or administrative proceedings.
10.11 MULTIPLE COUNTERPARTS AND FACSIMILE EXECUTION. This Agreement
may be executed in a number of identical counterparts which, taken together,
shall constitute collectively one (1) agreement; but in making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart executed by the party to be charged. A facsimile copy of this
Agreement and any signatures thereon shall be considered for all purposes as
originals.
10.12 DATE OF THIS AGREEMENT. As used in this Agreement, the terms
"date of this Agreement" or "date hereof' shall mean and refer to the date on
which Seller executes this Agreement.
10.13 EXHIBITS. The following exhibits are attached to this Agreement
and are incorporation into this Agreement and made a part here:
(a) EXHIBIT A, the Land;
(b) EXHIBIT B, the Escrow Agreement;
(c) EXHIBIT C, the Deed; and
(d) EXHIBIT D, the Bill of Sale.
10.14 AUTHORITY. Each party hereto represents and warrants to the
other that the execution of this Agreement and any other documents required or
necessary to be executed pursuant to the provisions hereof are valid, binding
obligations and are enforceable in accordance with their terms.
10.15 RECORDATION: PUBLICITY. Neither this Agreement nor any
memorandum or other summary of this Agreement shall be placed of public record
under any circumstances except with the prior written consent of the Seller and
the Purchaser. In addition, from and after the effective date of this
Agreement, whether this Agreement is closed or terminated, neither Purchaser
nor Seller shall make or permit to be made any announcements or press releases
concerning the existence of this Agreement, the terms of the purchase of the
Property or any other information concerning this agreement or the transaction
contemplated herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal by persons duly empowered to bind the parties to perform
13
<PAGE> 14
their respective obligations hereunder the day and year set forth beside their
respective signatures.
SELLER:
BANK OF AMERICA, N.A., a national
banking association
By: /s/ MONICA L. AMMANN
------------------------------
Name: Monica L. Ammann
Title: Senior Vice President
Date: September 25, 2000
PURCHASER:
SOUTHERN COMMUNITY BANK
DATE OF EXECUTION BY PURCHASER:
By: /s/ JOEL E. WHITTENHALL
------------------------------
August 25, 2000 Name: Joel E. Whittenhall
Title: Senior Vice President
ACKNOWLEDGMENT AND AGREEMENT BY THE AGENT
The undersigned joins in execution of this Agreement for the purpose of
representing and warranting to Purchaser and Seller that the undersigned (i) is
a duly licensed real estate broker under the real estate licensing act(s) of
the State of Florida and any applicable regulations, (ii) is duly authorized to
earn and receive a commission in connection with the transaction evidenced by
this Agreement, and (iii) acknowledges and agrees to the terms and provisions
of SECTION 10.2 hereof, including, without limitation, the entitlement to
commission only accruing upon a final closing of the transaction. The
undersigned shall indemnify and hold Purchaser and Seller harmless from any,
loss, liability, damage, cost or expense (including attorneys' fees) resulting
by reason of a breach of the representations and warranties made herein.
AGENT:
-------------------------------
BROKER:
-------------------------------
DATE OF EXECUTION BY AGENT By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
14
<PAGE> 15
EXHIBIT A
LAND
(Legal Description to be verified by title commitment and survey.)
15
<PAGE> 16
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT made and entered into as of the 25th day of
September, by and among BANK OF AMERICA, N.A., a national banking association
("Seller"); SOUTHERN COMMUNITY BANK ("Purchaser"); and ROETZEL & ANDRESS, P.A.
("Escrow Agent").
STATEMENT OF PURPOSE
Seller and Purchaser have entered into a Purchase and Sale Agreement
dated September 25, 2000, for the sale and purchase of a certain tract of land
located in Collier County, Florida, more particularly described in the Purchase
and Sale Agreement (the "Property"). Purchaser and Seller desire to have the
Escrow Agent hold the Earnest Money as required under the Purchase and Sale
Agreement in escrow pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. APPOINTMENT. Purchaser and Seller hereby appoint Roetzel & Andress,
P.A., as Escrow Agent hereunder.
2. EARNEST MONEY DEPOSIT. Purchaser has delivered and deposited with
Escrow Agent the amount of $155,000 representing the Earnest Money as required
by the Purchase and Sale Agreement. The Escrow Agent agrees to immediately
deposit said funds in an account at a local banking institution in Lee County,
the accounts of which are insured by the FDIC, and to hold and disburse said
funds, and any interest earned thereon (together the "Earnest Money") as
hereinafter provided.
3. INSTRUCTIONS. Upon written notification from Purchaser and Seller
that the sale contemplated is to be consummated, Escrow Agent shall deliver the
Earnest Money at Closing by wire transfer to Seller to be applied to the
purchase price for the benefit of Purchaser, unless otherwise instructed by the
parties hereto. Upon written notification from both Purchaser and Seller that
the contemplated sale shall not take place, Escrow Agent shall deliver the
Earnest Money to Purchaser or to Seller, as directed, or as otherwise
instructed by the parties hereto.
4. DUTIES OF ESCROW AGENT/EXCULPATION. Purchaser and Seller agree that
in performing any of its duties under this Agreement, Escrow Agent shall not be
liable for any loss, costs or damage which it may incur as a result of serving
as Escrow Agent hereunder, except for any loss, costs or damage arising out of
its willful default or negligence. Accordingly, Escrow Agent shall not incur
any liability with respect to (a) any action taken or admitted to be taken in
good faith upon advice of its counsel given with respect to any questions
relating to its duties and responsibilities, or (b) to any action taken or
16
<PAGE> 17
admitted to be taken in reliance upon any document, including any written
notice of instruction provided for in this Agreement, not only as to its due
execution and validity and effectiveness of its provisions, but also to the
truth and accuracy of any information contained therein, which Escrow Agent
shall in good faith believe to be genuine, to have been signed or presented by
a proper person or persons and to conform with the provisions of this
Agreement.
5. INDEMNIFICATION. Purchaser and Seller hereby agree to indemnify and
hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees and disbursements, which may be imposed upon or incurred by Escrow Agent
in connection with its serving as Escrow Agent hereunder, unless such losses,
claims, damages, liabilities and expenses are the result of Escrow Agent's
willful default or negligence in performing its obligations hereunder.
6. DISPUTES. In an event of dispute between any of the parties hereto,
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender unto the registry or custody of any court of
competent jurisdiction all money or property held by it under the terms of this
Agreement, together with such legal pleadings as it deems appropriate and
thereupon be discharged.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
duly executed and sealed as of the day and year first above written.
BANK OF AMERICA, NA., a national banking
association
By: /s/ MONICA L. AMMANN
---------------------------------------------
Name: Monica L. Ammann
Title: Senior Vice President
SOUTHERN COMMUNITY BANK
By: /s/ JOEL E. WHITTENHALL
---------------------------------------------
Name: Joel E. Whittenhall
Title: Senior Vice President
ROETZEL & ANDRESS, P.A.
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
17
<PAGE> 18
EXHIBIT C
Prepared by and
AFTER RECORDING RETURN TO:
__________________, Esquire
Bank of America, N.A.
400 North Ashley Drive
Tampa, Florida 33602
SPECIAL WARRANTY DEED
Bank of America, N.A., a national banking association, whose address
is 400 North Ashley Drive, FL1-010-08-01, Tampa, Florida 33602 ("Grantor"), for
and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) paid to
Grantor and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, has GRANTED, SOLD and CONVEYED and does
hereby GRANT, SELL and CONVEY unto ______________________, whose address is
________________________________, ("Grantee") in fee simple, that certain land
located in ________ County, Florida, being more particularly described in
Exhibit A, attached hereto and incorporated herein by reference, together with
all improvements, if any, located on such land (such land and improvements
being collectively referred to as the "Property").
This conveyance is made and accepted subject to all matters (the
"Permitted Exceptions") set forth in EXHIBIT B, attached hereto and
incorporated herein by reference.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances pertaining thereto, including all of Grantor's right,
title and interest in and to adjacent streets, alleys and rights-of-way,
subject to the Permitted Exceptions, unto Grantee and Grantee's heirs,
successors and assigns forever. And Grantor hereby covenants with Grantee that,
except as above noted, that at the time of the delivery of this Special
Warranty Deed the Property was free from all encumbrances made by it and that
it will warrant and defend the same against the lawful claims and demands of
all persons claiming by, through or under it, but against none other.
BY ACCEPTANCE OF THIS DEED, GRANTEE ACKNOWLEDGES THAT GRANTOR I-LAS
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, OR-AL, OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT 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 GRANTEE MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE
PROPERTY OR ITS OPERATION 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,
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<PAGE> 19
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) ANY OTHER MATTER WITH
RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR 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 AS DEFINED IN THE PURCHASE AND SALE
AGREEMENT PURSUANT TO WHICH THIS SPECIAL WARRANTY DEED IS DELIVERED, EXCEPT THE
WARRANTY OF TITLE EXPRESSLY SET FORTH HEREIN. GRANTEE FURTHER ACKNOWLEDGES THAT
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY IS MADE ON AN
"AS IS" CONDITION AND BASIS WITH ALL FAULTS.
Ad valorem taxes for the present year having been prorated, Grantee
hereby assumes payment thereof, and subsequent assessments for that and prior
years due to change in land usage, ownership, or both.
EXECUTED on the date set forth in the acknowledgment attached hereto
to be effective as of the ______ day of _____________, ____.
Signed, sealed and delivered BANK OF AMERICA, N.A., a national
in the presence of: banking association
WITNESSES: By:
--------------------------------
Name: Monica L. Ammann
Title: Senior Vice President
--------------------------------
Name:
--------------------------
--------------------------------
Name:
--------------------------
[corporate seal]
19
<PAGE> 20
STATE OF FLORIDA )
) SS:
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me on ____________,
____ by Monica L. Ammann, as Senior Vice President of Bank of America, N.A., a
national banking association, on behalf of the association, who is personally
known to me or who has produced ______________________ as identification.
Name:
---------------------------
[SEAL] NOTARY PUBLIC, State of Florida
Serial Number (if any):
--------------------------------
My Commission Expires:
--------------------------------
20
<PAGE> 21
EXHIBIT A
LAND
[Insert Property Description]
21
<PAGE> 22
EXHIBIT B
PERMITTED EXCEPTIONS
TO DEED
1. Rights of parties in possession.
2. Governmental rights of police power or eminent domain unless notice of
the exercise of such rights appears in the public records as of the
date hereof; and the consequences of any law, ordinance or
governmental regulation including, but not limited to, building and
zoning ordinances.
3. Defects, liens, encumbrances, adverse claims or other matters 1) not
known to the Grantor and not shown by the public records but known to
the Grantee as of the date hereof and not disclosed in writing by the
Grantee to the Grantor prior to the date hereof; 2) resulting in no
loss or damage to the Grantee; or 3) attaching or created subsequent
to the date hereof.
4. Visible and apparent easements and all underground easements, the
existence of which may arise by unrecorded grant or by use.
5. Any and all unrecorded leases, if any, and rights of parties therein.
6. Taxes and assessments for the year of closing and subsequent years.
7. All judgments, liens (excluding construction liens), assessments, code
enforcement liens, encumbrances, declarations, mineral reservations,
covenants, restrictions, reservations, easements, agreements and any
other matters as shown on the public records.
8. All matters that would be disclosed by a current survey of the
property.
9. Grantee shall not use or permit the Property to be used by any person
or entity for "retail banking purposes" (the "Use Restriction") for a
period of sixty (60) days from the date hereof, or, in the event
Grantor leases the Property from Grantee, sixty (60) days after the
lease is terminated (the "Restricted Period"). The term "retail
banking purposes" shall include, without limitation, receiving
deposits or making loans to the general public, whether done by a
state bank, national bank, savings and loan association, credit union
or other entity, whether by walk-up or drive-in teller facility or
otherwise. In addition, during the Restricted Period: (i) there shall
be no signage or advertising of any type placed or permitted upon any
portion of the Property that relates to a financial institution,
including Grantee (the "Signage Restriction"), and (ii) there shall be
no public announcements, advertising, solicitations, business
development, notices or other publications relating in any manner to
22
<PAGE> 23
the present or future operation of a financial institution, including
Grantee, upon the Property (the "Advertising Restriction"). In the
event of a violation of any of the aforesaid Restrictions, Grantor
shall be entitled to pursue all remedies available at law or in
equity, including, without limitation, injunctive relief. In addition,
Grantor shall be entitled to recover from Grantee liquidated damages
in the amount of $2,000.00 per day for any violation of the Use
Restriction or Signage Restriction and $25,000.00 for each and every
violation of the Advertising Restriction. The parties recognize and
acknowledge that the foregoing liquidated damages are reasonable and
do not constitute a penalty and are being imposed due to the
difficulty of calculating the actual damages that would result from a
violation of these Restrictions. In the event of any litigation
relating to the enforcement of these Restrictions, the prevailing
party shall be entitled to recover all costs and expenses, including
reasonable attorney's fees.
23
<PAGE> 24
EXHIBIT D
BILL OF SALE
AND
ASSIGNMENT
THE STATE OF FLORIDA )
) SS:
COUNTY OF HILLSBOROUGH )
Bank of America, NA., a national banking association, ("Assignor"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration paid to Assignor by _____________________
("Assignee"), the receipt and sufficiency of which are hereby acknowledged, has
ASSIGNED, SOLD, CONVEYED and DELIVERED, and does hereby ASSIGN, SELL, CONVEY
and DELIVER unto Assignee, its successors, heirs, executors, administrators,
personal representatives and assigns, all of Assignor's right, title and
interest, if any, in and to the following:
All of the fixtures, equipment, machinery, furniture and other
personal property (the " Property") placed or installed on or about the real
property (the "Real Property") being more particularly described in EXHIBIT A,
attached hereto and incorporated herein by reference; and
This Bill of Sale and Assignment is made and accepted subject to all
of the liens, security interests and other matters (the "Permitted Exceptions")
shown in any public records or listed in the Special Warranty Deed from
Assignor to Assignee, of even date herewith, covering the Property.
ASSIGNEE TAKES THE PROPERTY "AS IS" AND "WITH ALL FAULTS". ASSIGNOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS AS TO THE PHYSICAL
CONDITION, OPERATION OR ANY OTHER MATTER AFFECTING OR RELATED TO THE PROPERTY
AND THIS BILL OF SALE AND ASSIGNMENT, EXCEPT AS HEREIN SPECIFICALLY SET FORTH
OR REFERRED TO, AND ASSIGNEE HEREBY EXPRESSLY ACKNOWLEDGES THAT NO SUCH
REPRESENTATIONS HAVE BEEN MADE. ASSIGNOR EXPRESSLY DISCLAIMS AND ASSIGNEE
ACKNOWLEDGES AND ACCEPTS THAT ASSIGNOR HAS DISCLAIMED TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY
KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, (i) THE VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY,
24
<PAGE> 25
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OF THE
PROPERTY, (ii) THE MANNER OR QUALITY OF THE CONSTRUCTION OF THE CONSTRUCTION OF
MATERIALS, IF ANY, INCORPORATED INTO ANY OF THE PROPERTY AND (iii) THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY. ASSIGNOR IS NOT
LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL
ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE
SPECIFICALLY SET FORTH OR REFERRED TO HEREIN.
EXECUTED this _____ day of ____________, ____.
Signed, sealed and delivered BANK OF AMERICA, N.A., a national
in the presence of: banking association
WITNESSES: By:
-------------------------------
Name: Monica L. Ammann
Title: Senior Vice President
----------------------------------
Name:
----------------------------
----------------------------------
Name:
----------------------------
[corporate seal]
STATE OF FLORIDA )
)
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me this ___ day of
_________, ____ by Monica L. Amman, as Senior Vice President of Bank of
America, N.A., a national banking association, on behalf of the association.
She is personally known to me or .who has produced as identification.
---------------------------------
Name:
----------------------------
[SEAL] NOTARY PUBLIC, State of Florida
Serial Number (if any):
---------------------------------
My Commission Expires:
---------------------------------
25
<PAGE> 26
ADDENDUM TO PURCHASE AND SALE AGREEMENT
THIS ADDENDUM TO PURCHASE AND SALE AGREEMENT (the "Addendum") is made
and entered into this 25th day of September, 2000, by and between BANK OF
AMERICA, N.A. ("Seller") and SOUTHERN COMMUNITY BANK ("Purchaser").
WHEREAS, Purchaser has previously submitted a bid (the "Bid") to
purchase certain property from Seller pursuant to a Purchase and Sale Agreement
(the "Agreement"); and
WHEREAS, Purchaser desires to modify the Bid and the terms of the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the parties agree as
follows:
1. The foregoing recitals are true and correct and are hereby
incorporated as a part of this Addendum. In the event of any conflict between
this Addendum and the Bid or the Agreement, the terms in this Addendum shall
prevail and control.
2. Section 2.1 of the Agreement is hereby amended by increasing the
Purchase Price to One Million Five Hundred Fifty Thousand & No/100 Dollars
($1,550,000).
3. Purchaser acknowledges and understands that the Agreement, as
modified by this Addendum, shall not be binding upon Seller unless and until
Seller executes and delivers to Purchaser the Agreement and this Addendum.
4. Except as specifically modified herein, the Bid and the Agreement
shall remain unchanged.
5. A facsimile copy of this Addendum and any signatures hereon shall be
considered all purposes as originals.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the
day and year first set forth above.
BANK OF AMERICA, N.A. SOUTHERN COMMUNITY BANK
By: /s/ MONICA L. AMMANN By: /s/ JOEL E. WHITTENHALL
--------------------------- --------------------------------
Name: Monica L. Ammann Name: Joel E. Whittenhall
Title: Senior Vice President Title: Senior Vice President
Date: September 25, 2000 Date: September 25, 2000
26
