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EXHIBIT 10.2
AGREEMENT TO BUY AND SELL
1. PARTIES. This legally binding contract entered into on this 22nd day of
January, 1999, between THE XXXX X. XXXXXXXX Trust, (hereinafter the "Seller")
and NEW COMMERCE BANCORP (hereinafter the "Buyer").
2. PROPERTY TO BE SOLD. Subject to terms and conditions herein, Seller
agrees to sell and Buyer agrees to buy, approximately 2 acres, plus or minus,
subject to survey, of property identified on Greenville County Tax Maps as being
out of Tax Map Number 546.1-1-5 and 546.1-1-5.1, as shown on the attached
EXHIBIT A and EXHIBIT A-1.
3. PURCHASE PRICE. The Purchase Price shall be $8.00 per square foot to be
adjusted upon final survey net of any highway right of way.
4. EFFECTIVE DATE. The Effective Date of this Agreement will be the date
of the last signature of the parties. Should the Inspection Period or any
Extension fall on a weekend or holiday, the following business day shall be the
date of expiration.
5. METHOD OF PAYMENT. Within three (3) days of execution of this
Agreement, the Buyer shall pay as xxxxxxx money the sum of Fifteen Thousand and
00/100 ($15,000.00) Dollars to Xxxxx Xxxxxx & Associates, Inc., Greenville,
South Carolina as escrow agent. Seller shall grant Buyer an Inspection Period as
defined in Paragraph 16. Following the Inspection Period, Buyer may deposit in
escrow an additional Ten Thousand and 00/100 ($10,000.00) Dollars to extend this
Agreement an additional sixty (60) days. However, if Buyer elects to extend the
Inspection Period,Buyer herein agrees that the only contingencies remaining
shall be satisfactory title and the contingencies outlined in Paragraph 15
herein. In the event Buyer does not notify Seller of its intention to exercise
the extension period at the expiration of the Inspection Period, this Agreement
will terminate, and Seller will refund xxxxxxx money to Buyer. At closing, the
balance of the Purchase Price shall be paid in cash. The amounts paid by Buyer
as xxxxxxx money under this Paragraph 5 shall be applied as a credit against the
Purchase Price.
6. CLOSING COSTS. Closing Costs, including the costs of obtaining any
financing shall be paid as follows:
(a) Seller shall provide or pay for preparation of deed, cost of deed
stamps, all deed recording fees pursuant to Title 12, Chapter 24, S.C. Code of
Laws, and/or any other documentary stamps or transfer taxes which are now or may
hereafter be applicable to real estate transfers, and any cost necessary to
provide a marketable title, including recording of any satisfactions, property
taxes to the day of closing, and any other cost agreed to herein.
(b) Unless otherwise agreed herein, Buyer shall pay the costs of the
title examinations, all recording fees (except for deed recording fees pursuant
to Title 12, Chapter 24, S.C. Code of Laws, which shall be Seller's obligation),
and, if applicable, any loan costs, the costs of any appraisal, and the
preparation of other closing documents.
7. REAL ESTATE COMMISSION. Seller shall be responsible for the payment of
the real estate sales commission which is ten percent (10%) of the purchase
price cash out up front to be divided equally between Xxxxx Xxxxxx & Associates,
Inc., Seller's Agent, and Xxxxx Company, Inc., Buyer's Agent, arising out of
their services in
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connection with the closing of this transaction. Buyer and Seller warrant to
each other that each respectively, has not dealt with any other broker or third
party in connection with this transaction.
8. CLOSING DATE. The Closing Date shall be no later than thirty (30) days
following the expirations of the Inspection Period and all extensions provided
in this Agreement.
9. POSSESSION. Seller shall give possession to the Buyer at closing,
provided title has passed.
10. AUTHORITY. Seller represents to Buyer that it either owns the subject
property or has full authority to enter into an agreement to sell such property
on behalf of the owners.
11. ENTIRE AGREEMENT. This written instrument expresses the Entire
Agreement and all promises, covenants, and warranties between the Buyer and
Seller. It can only be changed by a subsequent written instrument (Addendum)
signed by both parties.
12. REAL PROPERTY. The Real Property to be sold, unless otherwise agreed by
the parties,includes all improvements of any kind, which are attached to or
planted on the premises. Seller represents and warrants that there are no
persons who have any outstanding agreements to acquire any interest in the
property and no outstanding liens affecting the property and that there is no
pending litigation affecting the property. Seller will maintain property with
all applicable laws and regulations.
13. PRORATIONS. Property taxes and rent, as well as other expenses and
income of the property, if applicable, shall be apportioned to the date of
closing. Annual expenses or income shall be apportioned using 365 days. Monthly
property expenses or income shall be apportioned by the number of days in the
month of closing. The amount of the property taxes shall be estimated by closing
attorney or agent using information available. Prorations at closing shall be
final.
14. ENCUMBRANCES AND RESTRICTIONS. Seller shall convey marketable title to
the property to Buyer in fee simple free from all liens, except restrictions of
record and those Buyer has agreed to assume.
If Seller is unable to convey marketable title without a court action
or incurring any unusual expenses or within thirty (30) days after herein
specified closing date, Buyer has the option of terminating this Agreement by
giving written notice to the Seller.
15. CONTINGENCIES. Purchase of the property is contingent on:
(a) Buyer obtaining approval from the Office of the Comptroller of the
Currency (OCC) of its charter as a national bank or bank holding company by May
1, 1999;
(b) Buyer completing successfully an offering of its stock by April 1,
1999 as a result of which not less that $7,500,000 in capital is raised by the
Buyer.
(c) Property being properly zoned for use as a banking institution.
(d) Approval of the subdivision plat by the City of Xxxxxxx.
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(e) Approval of the appropriate curb cuts by SCDOT.
In the event that the herein listed contingencies are not resolved to
Buyer's satisfaction, Buyer may terminate this Agreement, all xxxxxxx money
deposits paid by Buyer under Paragraph 5 hereof will be refunded, and all
obligations of each party shall cease to exist.
16. INSPECTION PERIOD. For a period of ninety (90) days from the date of
execution of this Agreement, Seller grants Buyer and its agents the right to
enter the property during an Inspection Period for conducting soil test, market
studies, borings, engineering studies, environmental tests, or other such
exploratory measures as Buyer deems prudent. In the event Buyer,at its sole
discretion, determines that property is unsuitable, Buyer may terminate
Agreement, xxxxxxx money deposits shall be refunded to Buyer, and all
obligations of each party to the other shall cease to exist.
17. ENVIRONMENTAL HAZARDS. Seller represents and warrants that Seller has
received no notices from any federal or state agency advising Seller of any
potential environmental hazards or contamination on this parcel or any adjoining
parcel, and further, the Seller has no knowledge of any chemical, petroleum, or
other hazardous material storage or burial on the subject property or that any
other environmental hazards exist. In the event that any environmental audit or
assessment requires further evaluation, the Inspection period as outlined in
Paragraph 16 will be extended until thirty (30) days following the reporting of
the results of such additional tests or evaluations. Additionally, Seller agrees
to refund all xxxxxxx money deposits in the event that an environmental finding
exceeds acceptable state or federal guidelines. Buyer shall be obligated to
initiate any environmental studies within ten (10) days of the Effective Date of
this Agreement.
18. RISK OF LOSS OF DAMAGE. Any loss or damage to the property by fire or
other casualty until the day of closing shall be the responsibility of Seller.
In such case, Seller shall have the option of restoring property to its present
condition within thirty (30) days after herein specified closing date, with date
of closing and possession to be extended accordingly. If property is not
restored within said period, Buyer shall have the right to terminate this
Agreement by written notice to Seller. In such case, both parties shall execute
a written release of the other from this Agreement.
19. DEFAULT. If Buyer elects to terminate this Agreement (after Inspection
Period), Seller shall retain all xxxxxxx money deposits as full liquidated
damages, and obligations of each party to the other shall cease. If termination
is because of default by Seller, Buyer shall seek all remedies of specified
performance including damages.
20. PERSONS BOUND. The benefits and obligations of this Agreement shall
inure to and bind heirs, assigns, successors, executors or administrators.
Whenever used, singular shall include plural, and use of any gender shall
include all. This is a legally binding Agreement.
21. TELECOPY. Buyer and Seller both agree that receipt of a signed
Agreement by telecopy (FAX) will be the same as receipt of an original signed
Agreement.
22. STREET NAMING RIGHTS. Seller agrees to name the proposed street
adjacent to the subject property "New Commerce Court".
23. BUYERS INTENT. It is the Buyers intent to commence construction of an
approximate 10,000 square foot main office for New Commerce Bank for occupancy
before 12-31-99.
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24. STORMWATER MANAGEMENT POND EASEMENT AND MAINTENANCE. Prior to or at
Closing, Buyer and Seller mutually agree to execute a Stormwater Management Pond
Easement and Management Agreement that establishes an easement for Buyer's use
of a joint retention pond and an agreement for joint maintenance of the
retention pond.
25. STORMWATER EASEMENT. Prior to or at Closing, Seller shall provide Buyer
with an easement across Seller's adjoining property for stormwater drainage to
the joint retention pond.
26. LIMITATIONS ON ASSIGNMENT. Buyer understands that the specific use of
the subject property has a significant impact on the development of the
remainder of Seller's adjoining property. Consequently, Buyer herein agrees that
this Contract may not be assigned to a non bank user without the prior written
permission of the Seller.
27. EXPIRATION. This offer will expire and become null and void if not
executed by Seller and returned by Buyer by January 30, 1999.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties.
SELLER: THE XXXX X. XXXXXXXX TRUST
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx. 01-22-99
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Witness Xxxxxxxx X. Xxxxxxxx, Xx. Date
------------------------------- Title: Trustee
Witness
BUYER: NEW COMMERCE BANCORP
/s/ Xxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxx 01-22-99
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Witness Xxxxx X. Xxxxxxx Date
/s/ Xxxxxx Xxxxxx Title: President and CEO
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Witness
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