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EXHIBIT 10.1
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ALL CASH SALE
IMPROVEMENTS
WHERE NATIONSBANK IS SELLER
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made between
NATIONSBANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO NATIONSBANK OF SOUTH
CAROLINA, N.A. ("Seller"), and PEOPLES COMMUNITY CAPITAL CORPORATION, a South
Carolina banking corporation ("Purchaser").
In consideration of the mutual covenants and representations 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. Those certain tracts of land (the "Land") in Aiken County, South
Carolina being more particularly described on Exhibit A attached hereto and
incorporated herein by reference. Closing (hereafter defined) for each tract of
land shall be simultaneous. Seller shall have no obligation to close on either
tract of land if Purchaser fails or refuses to close on both tracts
simultaneously;
(b) IMPROVEMENTS. All improvements, consisting of the branch banking
facilities including, without limitation, all mechanical, heating, air
conditioning, ventilation and plumbing fixtures, systems and equipment (the
"Improvements") in and on the Land;
(c) MISCELLANEOUS ITEMS. To the extent they are transferrable and in
Seller's possession, all of Seller's right, title and interest in any
warranties, plans and specifications, engineering plans and studies, floor
plans and landscape plans;
(d) EASEMENTS. All easements, if any, benefiting the Land or the
Improvements;
(e) RIGHTS AND APPURTENANCES. All rights and appurtenances pertaining to
the foregoing, including any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way;
(f) KEYS. All keys to locks on the Property; and
(g) TANGIBLE PERSONAL PROPERTY. All of Seller's right, title and interest,
as of the Closing Date (as hereinafter defined) in all fixtures, equipment,
machinery, carpet, drapes and other personal property, if any, located on or
about the Land and the improvements or used exclusively in the operation and
maintenance thereof (the "Tangible Personal Property"). There is, however,
excluded from the definition of Tangible Personal Property, any banking
equipment, security equipment, and/or trade fixtures which Sellers has removed
from the Property prior to the date of execution hereof.
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2.
PURCHASE PRICE
PURCHASE PRICE. The purchase price (the "Purchase Price") for the Property
shall be Eight Hundred, Seventy-Five Thousand and NO/100 DOLLARS ($875,000.00)
and shall be paid by Purchaser to Seller at the closing (as defined in Section
6.1). The Purchase Price shall be payable in United States currency by way of
federal wire transfer or other immediately available funds at closing.
3.
XXXXXXX MONEY
3.1 XXXXXXX MONEY. Purchaser shall deliver to Xxxxx & Avant, Inc. ("Escrow
Agent") within two (2) business days after the date of this Agreement, the sum
of Seven Thousand, Five Hundred and NO/100 Dollars ($7,500.00) in cash (the
"Xxxxxxx Money") to be invested by the Escrow Agent in an interest-bearing
account as Purchaser and Seller shall direct. The Xxxxxxx Money shall be
nonrefundable, except in the event of a breach of this Agreement by Seller or
as specified in Section 4.3 hereof. Seller shall have the option of terminating
this Agreement if the Xxxxxxx Money is not delivered to the Escrow Agent within
such time. If the sale of the Property is consummated pursuant to the terms of
this Agreement, the Xxxxxxx Money and all interest accrued thereon 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 described
in Section 4.3 hereof, the Xxxxxxx Money and all interest accrued thereon shall
be returned to Purchaser, and no party hereto shall have any further
obligations under this Agreement.
3.2 OPTION MONEY. Purchaser may elect, at any time prior to the expiration
of Purchaser's Inspection Period as hereinafter defined, to purchase an option
to extend Closing for an additional forty-five (45) days, if this Agreement has
not previously been terminated pursuant to a right of either party herein, by
depositing an additional, nonrefundable, TEN THOUSAND AND NO/100 DOLLARS
($10,000.00) (the "Option Money"). After the date of deposit of the Option
Money, both the Option Money and the Xxxxxxx Money shall be nonrefundable,
except in the case of a material breach of this Agreement by Seller.
4.
CONDITIONS TO CLOSING
4.1 DELIVERY OF TITLE COMMITMENT AND SURVEY.
(a) At Purchaser's option and sole expense, Purchaser may obtain a
Commitment or Commitments (a "Title Commitment") for an Owner's Policy of Title
Insurance (a "Title Policy") issued by a title insurance company selected by
Purchaser (the "Title Company"); such Title Policy to name Purchaser as
insured, in the amount of the Purchase Price, insuring that Purchaser owns good
and indefeasible fee simple title to the Property, subject only to the
Permitted Exceptions. Purchaser agrees to deliver to Seller a copy of the Title
Commitment(s) no later than ten (10) business days prior to the Closing Date.
At Purchaser's option and expense, Purchaser may obtain a current survey of the
Property (the "Survey"), prepared by a licensed surveyor.
(b) Purchaser shall have thirty (30) days after the date of this Agreement
(the "Approval Period") within which to approve or disapprove the Title
Commitment and the Survey, including the information reflected therein, such
approvals or disapprovals to be within Purchaser's sole discretion (any such
disapproved item or matter herein referred to as a "Title Exception"). If
Purchaser fails to disapprove any item or information contained in the Title
Commitment or Survey by written notice (which shall include a copy of the Title
Commitment and Survey) delivered to Seller of Purchaser's objection to such
Title Exception(s) (a "Title Objection Notice") prior to the expiration of the
Approval Period, Purchaser shall be deemed to have approved such Title
Exception(s) and shall accept title to the Property as reflected in the Title
Commitment and Survey, and subject to the Permitted Exceptions
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(as defined below). If Purchaser delivers a Title Objection Notice to Seller
prior to the expiration of the Approval Period, Seller shall have the right
(without any obligation to do so) to cure or attempt to cure the Title
Exception(s) referenced in Purchaser's Title Objection Notice within ten (10)
days after Purchaser's delivery of the Title Objection Notice, or, if sooner,
by the Closing Date (as hereinafter defined). In the event Seller is unable to
cure or elects not to cure any one or more of the Title Exception(s) referenced
in the Title Objection Notice, Seller may, within thirty (30) days after
Seller's receipt of Purchaser's Title Objection Notice, notify Purchaser in
writing of such inability or election and request that Purchaser waive
Purchaser's right to terminate this Agreement due to such Title Exception(s)
(the "Title Exception Election Notice"). The term "Permitted Exceptions", as
used herein, shall mean (i) the Title Exception(s) listed in Schedule B of the
Title Commitment specified which Purchaser approves, waives or is deemed to
approve pursuant to this Section 4.1, (ii) any general exceptions and
exclusions contained in the standard Owner's Policy issued by the Title Company
and (iii) the exceptions listed on the Limited Warranty Deed attached as
Exhibit B hereto. Notwithstanding the foregoing sentence, however, Purchaser
may object to those exceptions listed on the Limited Warranty Deed attached
hereto, by delivering to Seller prior to the expiration of the Approval Period
a Title Objection Notice referencing such items, in accordance with the terms
hereof.
If Seller elects not to cure or is unable to cure, Purchaser may terminate
this Agreement, and its obligations hereunder, by sending written notice of
termination to Seller within ten (10) days following Purchaser's receipt of
Seller's Title Exception Election Notice and Purchaser shall thereafter receive
a refund of the Xxxxxxx Money, or Purchaser may waive Purchaser's objections
and proceed to Closing.
4.2 INSPECTION.
(a) Purchaser may inspect the Property at any reasonable time on or before
thirty (30) days after the date hereof (the "Inspection Period"), and may
terminate this Agreement because of any unacceptable fact or condition
affecting or existing on the Property (an "Unacceptable Condition") or for any
other reason in Purchaser's sole discretion (including Purchaser's inability to
obtain financing), by delivering written notice of termination to Seller prior
to the expiration of the Inspection Period. Also, Purchaser may notify Seller
in writing prior to the expiration of the Inspection Period of any Unacceptable
Condition(s) that Purchaser desires to have cured or otherwise addressed as a
condition to Purchaser's obligation to close the transaction contemplated
hereby (a "Notice of Unacceptable Condition"). Purchaser's right to make
objections regarding Unacceptable Condition(s), as provided herein, may relate
to any matter, whether dealing with a Property inspection or books, records or
other information pertaining to the Property. If Purchaser fails to either (i)
terminate this Agreement by delivering written notice of termination to Seller
prior the expiration of the Inspection Period or (ii) notify Seller of any
Unacceptable Condition(s) by delivering a Notice of Unacceptable Condition
referencing such Unacceptable Conditions to Seller prior to the expiration of
the Inspection Period, Purchaser shall be deemed to have obtained acceptable
financing, and all Unacceptable Condition(s) not referenced in the Notice of
Unacceptable Conditions shall be deemed waived by Purchaser. If Purchaser
delivers a Notice of Unacceptable Condition to Seller prior to the expiration
of the Inspection Period, Seller shall have the right (without any obligation
to do so) to cure or attempt to cure the Unacceptable Condition(s) referenced
in Purchaser's Notice of Unacceptable Condition within ten (10) days after
Purchaser's delivery of the Notice of Unacceptable Condition, or, if sooner, by
the Closing Date (as hereinafter defined). In the event Seller is unable to
cure or elects not to cure any one or more of the Unacceptable Condition(s)
referenced in the Notice of Unacceptable Condition, Seller may, within thirty
(30) days after Seller's receipt of Purchaser's Title Objection Notice, notify
Purchaser in writing of such inability or election and request that Purchaser
waive Purchaser's right to terminate this Agreement due to such Unacceptable
Condition(s) (the "Unacceptable Condition Election Notice"). If Seller elects
not to cure, or is unable to cure, Purchaser may terminate this Agreement, and
its obligations hereunder, by sending written notice of termination to Seller
within ten (10) days following Purchaser's receipt of Seller's Unacceptable
Condition Election Notice, and Purchaser shall thereafter receice a refund of
the Xxxxxxx Money or Purchaser may waive Purchaser's objections and proceed to
Closing.
(b) With respect to any subsurface or environmental investigations
(excepting only a Phase I Environmental Audit), Purchaser shall notify Seller
in writing of its intention or the intention of its agents or representatives
to undertake any such investigations at least 48 hours prior to such intended
investigations and obtain
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Seller's written consent to any such investigations to be conducted. At
Seller's option, Seller or Seller's agents may be present for any such
investigations. Purchaser shall bear the cost of all such investigations and
inspections.
(c) Seller shall make available to Purchaser, for Purchaser's review at
either Seller's offices or at the Property (if the Property is improved
property), the Review Documents (as defined below), provided that (A) Purchaser
provides Seller with written notice three (3) business days prior to the day
Purchaser intends to conduct such review, and (B) Purchaser conducts such
review within the Inspection Period. As used herein, the term "Review
Documents" shall mean and refer to the following:
(i) Warranties. Copies of all warranties regarding the Property
(the "Warranties"), if any, in the possession of Seller as
of the date of this Agreement.
(ii) Plans and Specifications. Copies of the as-built plans and
specifications for the Property, if any, in the possession
of Seller as of the date of this Agreement.
(iii) Certificates of Occupancy, Permits and Licenses. Copies of
all permits and licenses issued by any governmental
authorities or utility companies in connection with the
occupancy and use of the Improvements (including certificates
of occupancy), if any, in the possession of Seller.
(iv) Environmental Site Assessments. Copies of all written
environmental site assessments, reports and audits, if any,
pertaining to the Property and prepared by independent
consultants for and on behalf of Seller.
Purchaser acknowledges that the Review Documents may have been compiled from a
variety of sources, and are and shall be provided by Seller WITHOUT
REPRESENTATION OR WARRANTY as to their accuracy or completeness. Seller
specifically disclaims the accuracy or completeness of any written
environmental assessments, reports or audits provided by Seller pursuant to the
terms hereof, and encourages Purchaser to obtain Purchaser's own assessment of
the environmental risks, if any, associated with the Property, using such
experts and consultants as Purchaser may select.
(d) All information 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 shall be liable for all costs and expenses,
and/or damage or injury to any person or property resulting from any such
inspection or any failure to keep all such information confidential, whether
occasioned by the acts of Purchaser or any of its employees, agents or
representatives, and Purchaser shall indemnify and hold harmless Seller from
any liability, claims or expenses (including, without limitation, mechanic's
liens and/or reasonable attorneys' fees) resulting therefrom. Notwithstanding
anything to the contrary contained in this Agreement, the obligations of
Purchaser set forth in this Section 4.2(d) shall survive the Closing or the
termination of this Agreement, as applicable. Additionally, Purchaser hereby
grants to Seller a security interest in the Xxxxxxx Money as security for
Purchaser's indemnification provided in this Section.
4.3 TERMINATION. If this Agreement is terminated prior to the expiration
of the Approval Period and the Inspection Period pursuant to the right of
Purchaser to terminate this Agreement, the Xxxxxxx 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, Section 10.2 and Section 10.10, which shall survive such
termination. Purchaser shall, within ten (10) days of such termination, deliver
to Seller copies of all feasibility studies, surveys, engineering reports and
all other information obtained by Purchaser with respect to the Property.
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NO REPRESENTATIONS OR WARRANTIES BY SELLER
5.1 DISCLAIMERS. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, 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 OR ANYONE ELSE 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 OF
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 LAWS, RULES, REGULATIONS,
ORDERS OR REQUIREMENTS, INCLUDING SOLID WASTE, AS DEFINED BY THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE
DISPOSAL OR EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCE AS
DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY
ACT OF 1980, AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. 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 TO, 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 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 THE PROPERTY IS SOLD BY
SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING.
5.2 ASBESTOS CONTAINING MATERIALS. Purchaser acknowledges receipt of the
reports attached hereto as Exhibit C, entitled "Asbestos Bulk Survey" prepared
by Health & Hygiene, Inc. dated February 19, 1992, separately addressing each
tract. In the event Purchaser does not terminate this Agreement pursuant to any
right granted to Purchaser hereunder, Purchaser agrees that it will assume "all
liabilities associated with or arising out of the Asbestos Containing Materials
identified therein, from and after the Closing Date.
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6.
CLOSING
6.1 CLOSING. The closing ("Closing") shall be held at the offices of
Purchaser's counsel on or before the fifteenth (15th) day following the end of
the Inspection Period, as the same may be extended pursuant to the terms of
this Agreement (the "Closing Date"), unless the parties mutually agree upon
another place or date. If the Closing date for either tract of land shall be
extended pursuant to any right to extend herein granted in order to address
matters of title, survey, or physical condition, the Closing date shall be
similarly extended on both tracts of land, it being the intent of the parties
that the Closing occur simultaneously for each tract.
6.2 SELLER'S OBLIGATIONS AT CLOSING. At Closing, Seller shall deliver to
Purchaser the following documents:
(a) DEED. Limited Warranty Deed (the "Deed") executed by Seller conveying
the Land to Purchaser in the form attached to this Agreement as Exhibit B
subject to no exceptions other than the Permitted Exceptions;
(b) EVIDENCE OF AUTHORITY. Copy of Seller's resolutions, certified by
Seller as true and complete, as of the Closing Date, so as to evidence the
authority of the persons signing the Deed and other documents to be executed by
Seller at Closing and the power and authority of Seller to convey the Property
to Purchaser in accordance with this Agreement.
(c) WARRANTIES. The originals of all warranties regarding the Property,
if any, in the possession of Seller;
(d) 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.
6.3 PURCHASER'S OBLIGATIONS AT CLOSING. At Closing, Purchaser shall
deliver to Seller the following:
(a) PURCHASE PRICE. The Purchase Price by cashier's check or wire
transfer of immediately available funds; and
(b) EVIDENCE OF AUTHORITY. Copy of Purchaser's resolutions and all
amendments thereto, certified as true and complete, as of the Closing
Date, so as to evidence the authority of the persons signing this Agreement.
6.4 PRORATION. Real estate taxes and other assessments with respect to the
Property for the year in which the Closing occurs, shall be prorated to the
Closing Date.
(a) 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 for the year in which the Closing occurs 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 is fixed for the year in which the Closing occurs, the parties agree
to adjust the proration of taxes and, if necessary, to refund or repay such
sums as will be necessary.
(b) In the event the Property has been assessed for property tax purposes
at such rates as would result in "roll-back" taxes upon the changes in land
usage or ownership of the Property, Purchaser agrees to pay all such taxes and
indemnify and save Seller harmless from and against any and all claims and
liabilities for such taxes.]
This agreement of Seller and Purchaser set forth in this Section 6.4 shall
survive the Closing.
6.5 POSSESSION. Possession of the Property shall be delivered to
Purchaser at Closing, subject to the Permitted Exceptions.
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6.6 CLOSING COSTS. Except as otherwise expressly provided herein, Seller
shall pay, on the Closing Date, documentary deed stamps and transfer taxes and
Seller's legal fees, and Purchaser shall pay, on the Closing Date, all
recording costs, the cost of the survey and Owner's Policy and Purchaser's
legal fees.
7.
RISK OF LOSS
7.1 CASUALTY. If the Property, or any part thereof suffers any damage
prior to Closing from fire or other casualty which Seller shall have no
obligation to repair, Purchaser may either (a) terminate this Agreement or (b)
consummate the Closing, in which latter event the proceeds of any insurance
covering such damage, up to the amount of the Purchase Price, shall be assigned
to Purchaser at Closing.
7.2 CONDEMNATION. If, prior to Closing, action is initiated or threatened
to take any of the Property by eminent domain proceedings or by deed in lieu
thereof, Purchaser shall have ten (10) days from receipt of written notice of
such event from Seller to advise Seller that it intends to (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 Seller
does not receive any such notice from Purchaser within such ten (10) day
period, then Purchaser shall be deemed to have elected option (b) of this
Section 7.2.
8.
DEFAULT
8.1 BREACH BY SELLER. If Seller breaches this Agreement, Purchaser may, as
Purchaser's sole and exclusive remedy hereunder, terminate this Agreement and
thereupon shall be entitled to the immediate return of the Xxxxxxx Money and
the Option Money, together with all accrued interest thereon. In no event shall
Seller be liable to Purchaser for any actual, punitive, speculative,
consequential or other damages.
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 the Xxxxxxx Money and the Option Money
together with all interest accrued thereon, if any, as liquidated damages (and
not as a penalty) or (b) enforce specific performance of this Agreement. Seller
and Purchaser have made this provision for liquidated damages because it would
be difficult to calculate on the date hereof the amount of actual damages for
such breach, and these sums represent reasonable compensation to Seller for
such breach.
9.
FUTURE OPERATIONS
9.1 FUTURE OPERATIONS. From the date of this Agreement until the Closing
or earlier termination of this Agreement:
(a) MAINTENANCE, LITIGATION. Except for condemnation and casualty which
are provided for in Section 7, Seller (i) will keep and maintain the Property
in its condition as of the date of this Agreement (reasonable wear and tear
excepted), and (ii) will use its best effort promptly to advise Purchaser of
any litigation, arbitration, or administrative hearing concerning the Property
arising or threatened after the date of this Agreement.
(b) CONTRACTS. Seller will not, without the prior written consent of
Purchaser, modify, enter into, or renew any contract concerning the Property
which cannot be cancelled as of the Closing Date.
9.2 RESTRICTIONS ON USE. The deed conveying the Property to Purchaser
shall contain certain restrictions prohibiting the Property from being
used as any type of financial institution for a period of five years
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from the date of Closing, by any entity other than Purchaser or its
subsidiaries except that use as a community bank by a similar entity Purchaser
or its subsidiaries shall be permitted.
10.
CONFIDENTIALITY
10.1 NON-DISCLOSURE. From and after the Effective Date of this Agreement or
unless with the prior written consent of the other party, neither Purchaser nor
Seller shall prior to the Closing (i) 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 or (ii) disclose or permit to
be disclosed, directly or indirectly, to any person or entity any information
in respect of the Property which is obtained pursuant to this Agreement or
through any inspection of the Property or records concerning the Property.
Notwithstanding the foregoing, Purchaser shall have the right, without
obtaining any prior consent, to disclose this Agreement and such information
about this agreement as its counsel deems necessary in any regulatory filing,
including filings with the Securities and Exchange Commission. Additionally, at
such time as Purchaser has (a) received all regulatory approvals required to
operate a community bank at each of the locations described in Exhibit A
hereto; and (b) accepted the title status and condition of each Property,
waived any remaining time under the Approval Period and the Inspection Period,
and established a Closing Date by written notice to Seller, then Purchaser
shall have the right to post a sign at each Property, identifying the Property
as the future home of People's Community Bank of South Carolina, and to issue
press releases stating that Purchasers have agreed to purchase the Property for
the future home of People's Community Bank of South Carolina, but neither the
signs nor any press release shall identify the Property as a location or former
location of NationsBank or otherwise include references to NationsBank.
10.2 LIMITED DISCLOSURE TO ADVISORS. Each party shall have the right to
disclose information in respect of the Property to its attorneys, accountants,
prospective lenders and their Counsel so long as they agree to be bound by the
terms of this Section 10.
11.
MISCELLANEOUS
11.1 NOTICE. Whenever this Agreement requires or permits any consent,
approval, notice, request, or demand from one party to the other (collectively
"Notice"), such Notice must be in writing to be effective and shall be
effective on the date of actual receipt of such Notice by the addressee or when
the attempted initial delivery is refused or when it cannot be made because of
a change of address of which the sending party has not be notified. The
following shall, without limitation, be prima facia evidence of actual receipt
of Notice by the addressee: (a) if mailed, by a United States certified mail
return receipt, signed by the addressee or the addressee's agent; (b) if by
telegram, by a telegram receipt signed by the addressee or the addressee's
agent; or (c) if hand-delivered, by a delivery receipt, signed by the addressee
or the addressee's agent. The parties' respective addresses for delivery of any
Notice are set forth below unless another address is designated in writing by
any party to the other.
IF TO SELLER: NationsBank, N.A.
Corporate Real Estate Services
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone/(Fax): (000) 000-0000 (0547)
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WITH COPIES TO: NationsBank Legal Department
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Senior Counsel
Telephone/(Fax): (000) 000-0000 (8032)
IF TO PURCHASER: People's Community Capital Corporation
00 Xxxxxx Xxxx Xxxxx
Xxxxx, Xxxxx Xxxxxxxx 00000
Attention:
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Telephone/(Fax): (000) 000-0000 (000-0000)
WITH A COPY TO: --------------------------------------------
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Attention:
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11.2 REAL ESTATE COMMISSIONS. Neither Seller nor Purchaser has contacted
any real estate broker, finder or similar person in connection with the
transaction contemplated hereby except Xxxxx & Avant, Inc. and Xxxxxxxx Xxxx
Companies ("Seller's Broker") and T and F Properties of Aiken, South Carolina
("Purchaser's Broker"). Seller shall pay at the Closing a brokerage fee in an
amount previously agreed to between Seller and Seller's Broker, such fee to be
divided between Seller's Broker and Purchaser's Broker in accordance with a
separate agreement between Seller's Broker and Purchaser's Broker, provided,
however, that no right to such brokerage fee shall vest in any broker or
broker's agent prior to Closing, and no commissions shall be due if the Closing
does not occur for any reason. To the actual knowledge of Seller and Purchaser,
no other Acquisition Fees (as hereafter defined) have been paid or are due and
owing to any other person or entity. 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,
and non-recurring management and start-up 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 11.2. This indemnification agreement
of the parties shall survive the Closing.
11.3 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 tot he subject matter hereof which are not expressly set
forth herein.
11.4 AMENDMENT. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
11.5 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.
11.6 TIME OF ESSENCE. Time is of the essence of this Agreement. However,
if the final date of any period which is not set out in any provision of this
Agreement falls on a Saturday, Sunday or legal holiday under the law of the
United States or the State of South Carolina, 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.
11.7 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Carolina and the applicable federal laws of the United States.
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11.8 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of Seller and Purchaser and their respective successors and assigns.
Purchaser shall not assign Purchaser's rights under this Agreement without the
prior written consent of Seller.
11.9 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
and warrants that it is a newly organized community bank and is not a
subsidiary of or affiliated with any other bank or financial institution as of
the date hereof.
11.10 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 provisions had never 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 the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
11.11 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 herein provided, reasonable
attorneys' fees incurred in such suit.
11.12 MULTIPLE COUNTERPARTS. This Agreement may be executed in a number
of identical counterparts, each of which for all purposes is deemed an
original, and all of which constitute collectively one (1) agreement.
11.13 DATE OF THIS AGREEMENT. This Agreement shall be null and void unless
Purchaser, no later than March 20, 1997, delivers three (3) executed copies of
this Agreement to Seller at the address shown in Section 12.1 hereof. As used
in this Agreement, the terms "date of this Agreement" or "date hereof" shall
mean and refer to the date of execution of this Agreement by Seller.
11.14 EXHIBITS. The following exhibits are attached to this Agreement and
are incorporated into this Agreement and made a part hereof:
(a) EXHIBIT A, the land;
(b) EXHIBIT B, the Limited Warranty Deed; and
(c) EXHIBIT C, Asbestos Bulk Survey.
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
their respective obligations hereunder the day and year first above written.
SELLER:
DATE OF EXECUTION BY SELLER: NATIONSBANK, NATIONAL ASSOCIATION,
successor by merger to NationsBank
of South Carolina, N.A.
3/20/97
--------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Sr. Vice-Pres.
------------------------------
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PURCHASER:
DATE OF EXECUTION BY PURCHASER: PEOPLES COMMUNITY CAPITAL CORPORATION,
a South Carolina banking corporation
3/17/97
-------------------------------
By: /s/ X. X. Xxxxxxxxx
-----------------------------------
Name: X. X. Xxxxxxxxx
---------------------------------
Title: Chairman & CEO
--------------------------------
The undersigned Escrow Agent hereby acknowledges receipt of the Xxxxxxx
Money and a copy of this Agreement, and agrees to hold and dispose of the
Xxxxxxx Money in accordance with the provisions of this Agreement.
ESCROW AGENT:
DATE OF RECEIPT BY ESCROW AGENT: Xxxxx & Avant, Inc.
3/18/97 By: /s/ Xxxxxx X. Xxxxx
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: VP Operations
--------------------------------
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EXHIBIT A TO PURCHASE AND SALE AGREEMENT
LAND
NORTH AUGUSTA BRANCH:
GEORGIA AVENUE PROPERTY -- All that certain piece, parcel or lot of land, with
the improvements thereon, situate, lying and being located on Georgia Avenue,
in the City of North Augusta, County of Aiken, State of South Carolina, and
being more particularly shown on a plat prepared for Bankers Trust of S.C. by
Xxx and Xxxxxxx, Inc., dated December 2, 1982, and recorded in the office of
the RMC for Aiken County in Plat Book 12, Page 166, and according to said plat
having the following boundaries and measurements, to wit: On the Southeast by
Georgia Avenue, whereon it measures Ninety (90') feet; on the Southwest by
property now or formerly Xxxxxx, whereon it measures Two Hundred and 66/100
(200.66') feet; on the Northwest by an Alleyway, whereon it measures Ninety
(90') feet; and on the Northeast by property now or formerly Xxxxxxx Xxxx, et
al, whereon it measures Two Hundred and 4/10 (200.4') feet; be all measurements
a little more or less.
WEST AVENUE -- All that certain piece, parcel or lot of land, with the
improvements thereon, situate, lying and being located in the City of North
Augusta, County of Aiken, State of South Carolina, on West Avenue, and being
more particularly shown on a plat prepared for Bankers Trust of S.C. by Xxx and
Xxxxxxx, Inc., dated December 2, 1982, and recorded in the office of the RMC
for Aiken County in Plat Book 12, Page 166, and according to said plat having
the following boundaries and measurements, to wit: On the Northwest by West
Avenue, whereon it measures Eighty-five (85') feet; on the Northeast by
property now or formerly Xxxxxxx, whereon it measures Two Hundred and 72/100
(220.72') feet; on the Southeast by an Alleyway, whereon it measures
Eighty-four and 95/100 (84.95') feet; and on the Southwest by property now or
formerly Xxxxxx, whereon it measures Two Hundred and 61/100 (200.61') feet; be
all measurements a little more or less.
DERIVATION -- Being the same property conveyed to NationsBank of South
Carolina, N.A. by deed of American Real Estate Holdings Limited Partnership,
dated March 25, 1993, recorded in Volume 1383 at page 000, XXX xxxxxxx xx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx.
TMS # 10-025-05-005
TMS # 10-025-05-014
TMS # 00-000-00-000
XXXXXXX XXXX XXXXXX:
XXXXX XXXXX - XXXXX XXXXXX
All that certain piece, parcel or lot of land, with the improvements thereon,
situate, lying and being located on the western side of Whiskey Road, in the
County of Aiken, State of South Carolina, being shown on a plat of property of
Whiskey Road Properties, in process of conveyance to Bankers Trust of South
Carolina by Xxxxx and Xxxxx, dated July 27, 1981 and recorded in the office of
the R.M.C. for Aiken County in Plat Book 325, page 28; being more particularly
shown on a plat prepared for Bankers Trust of S.C. by Xxx and Xxxxxxx, Inc.,
dated November 9, 1982, revised December 3, 1982, and recorded in Plat Book 12,
page 165, and according to latter plat having the following boundaries and
measurements, to wit: On the East by Whiskey Road (S.C. Highway No. 19),
whereon it measures Two Hundred Thirty-four and 06/100 (234.06') feet; on the
South by property now or formerly Whiskey Road Properties, whereon it measures
Three Hundred and 11/100 (300.11') feet; on the West by property
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now or formerly Silver Bluff Estates, whereon it measures Two Hundred
Thirty-four (234') feet; and on the North by property now or formerly South
Aiken Presbyterian Church, whereon it measures Two Hundred Ninety-nine and
92/100 (299.92') feet; be all measurements a little more or less.
DERIVATION: Being the same property conveyed to NationsBank of South Carolina,
N.A. by deed of American Real Estate Holdings Limited Partnership, dated March
26, 1993 and recorded at Volume 1383 page 95, R.M.C. office of Aiken County,
South Carolina.
TMS # 30-057-07-002
