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EXHIBIT 10.4
AGREEMENT TO BUY AND SELL
1. PARTIES. This legally binding contract entered into on this 26th day of
October, 1998, between Xxxxxxx Development Corporation (hereafter the "Seller"),
and MSB Investments Corp. (hereafter the "Buyer"). Buyer acknowledges that
seller has the property to be sold as defined in paragraph 2 under contract to
close by December 31, 1998.
2. PROPERTY TO BE SOLD. Subject to terms and conditions herein, Seller
agrees to sell and Buyer agrees to buy, approximately 73,684 square feet of
property as shown on the attached EXHIBIT A. The exact site, configuration and
description of the property shall be determined by a site plan and survey
acceptable to Buyer and Seller prior to the expiration of the Feasibility Period
provided below.
3. PURCHASE PRICE. The Purchase Price shall be $8.00 per square foot to be
adjusted upon final survey.
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) Dollars to Easlan Capital Xxxxx, 00 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, as escrow agent. Seller shall grant Buyer an
Feasibility Period as defined in Paragraph 15. Following the Feasibility Period,
Buyer may deposit in escrow an additional Ten Thousand and 00/100 ($10,000)
Dollars to extend this Agreement an additional sixty (60) days. However, if
Buyer elects to extend the Feasibility Period, Buyer herein agrees that the only
contingencies remaining shall be satisfactory title and the contingencies
outlined in Paragraph 14 herein. In the event Buyer does not notify Seller of
its intention to exercise the extension period at the expiration of the
Feasibility 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, and any
cost necessary to provide a marketable title, including recording of
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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 examination, 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. CLOSING DATE. The Closing Date shall be no later than thirty (30) days
following the expiration of the Feasibility Period and all extensions provided
in this Agreement.
8. POSSESSION. Seller shall give possession to the Buyer at closing,
provided title has passed.
9. AUTHORITY. Seller represents to Buyer that it has the subject property
under contract to purchase.
10. 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.
11. 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.
12. 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.
13. ENCUMBRANCES AND RESTRICTIONS. Seller shall convey marketable title to
the property to Buyer in fee simple free from all liens, except restrictions of
record (see EXHIBIT B) 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.
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14. 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 and bank holding company by
April 1, 1999;
(b) Buyer completing successfully an offering of its stock by
April 1, 1999 as a result of which not less that $6,50,000 in capital is raised
by the Buyer.
(c) Seller and Buyer agreeing to the exact layout of the property
being purchased.
(d) Seller closing its purchase of the subject property.
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.
15. FEASIBILITY PERIOD. For a period of one hundred twenty (120) days from
the date of execution of this Agreement and any extension, Seller grants Buyer
and its agents the right to enter the property during an Feasibility 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.
16. ENVIRONMENTAL HAZARDS. Seller represents and warrants that Seller has
received no notices form 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 15 will be extended until thirty (30) days
following the reporting of the results of such additional tests of 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.
17. 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.
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18. DEFAULT. If Buyer elects to terminate this Agreement (after Feasibility
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 have specific performance as its
sole remedy.
19. 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.
20. 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.
21. EXCLUSION. A financial institution (savings and loan, thrift, savings
bank, bank, or credit union) would not be allowed in the adjacent parcel.
22. COMMISSIONS. Seller represents that there are no brokerage fees or real
estate commissions due or owing in connection with this transaction other than
to Easlan Capital and Windsor/Xxxxxxx Company which shall be paid solely by
Seller. Seller agrees to pay a ten percent commission to be split equally by
Easlan Capital and Windsor/Xxxxxxx Company at closing.
23. 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.
24. DRIVEWAY CROSS EASEMENT AND MAINTENANCE. Buyer and Seller agree to
share equally in the costs of constructing and maintaining a joint private
driveway to the rear of the property which connects with Brookfield Parkway (see
location of driveway on Exhibit A herein). Buyer and Seller agree during the due
diligence period to agree on joint easements and for maintenance of said
driveway on an equitable percentage basis.
25. STORMWATER EASEMENT. Prior to or at closing, Seller and Buyer mutually
agree to execute a Stormwater Management Pond Easement and Management Agreement
that establishes an easement for Buyer's use of a common area joint detention
pond and an agreement for joint maintenance of the detention pond.
26. EXPIRATION. This offer will expire and become null and void if not
executed by Seller and returned by Buyer by October 26, 1998.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties.
SELLER: XXXXXXX DEVELOPMENT CORP.
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Witness
Its: President Date: 10/26/98
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BUYER: MSB INVESTMENTS CORP.
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Witness
Its: President Date: 10/26/98
/s/ Xxxxx Xxxxxxxx -------------------------------------------
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Witness
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