1
EXHIBIT 10.3
AGREEMENT TO BUY AND SELL
1. PARTIES. This legally binding contract entered into on this 30th day of
September, 1998, between Stephen M. Young and Lewis P. Young, Trustees of
Wilbert Burial Vault, Inc., Profit Sharing Plan (hereafter the "Seller"), and
MSB Investments Corp. (hereafter the "Buyer").
2. PROPERTY TO BE SOLD. Subject to terms and conditions herein, Seller
agrees to sell and Buyer agrees to buy, approximately 43,600 square feet of
property as shown on the attached EXHIBIT A.
3. PURCHASE PRICE. The Purchase Price shall be $10.00 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 earnest money the sum of Five Thousand and
00/100 ($5,000) Dollars to Caine Company, Inc., P.O. Box 2287, Greenville, South
Carolina 29602, as escrow agent. Seller shall grant Buyer an Inspection Period
as defined in Paragraph 15. Following the Inspection Period, Buyer may deposit
in escrow an additional Five Thousand and 00/100 ($5,000) Dollars to extend this
Agreement an additional ninety (90) 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 14
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 earnest money to Buyer. At closing, the
balance of the Purchase Price shall be paid in cash. The amounts paid by Buyer
as earnest 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 any
satisfactions, property taxes to the day of closing, and any other cost agreed
to herein.
2
(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 Inspection 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 either owns the subject
property or has full authority to enter into an agreement to sell such property
on behalf of the owners.
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.
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 or bank holding company by
April 1, 1999;
2
3
(b) Buyer completing successfully an offering of its stock by
April 1, 1999 as a result of which not less that $6,000,000 in capital is raised
by the Buyer.
In the event that the herein listed contingencies are not resolved to
Buyer's satisfaction, Buyer may terminate this Agreement, all earnest money
deposits paid by Buyer under Paragraph 5 hereof will be refunded, and all
obligations of each party shall cease to exist.
15. 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, earnest 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 or evaluations.
Additionally, Seller agrees to refund all earnest 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.
18. DEFAULT. If Buyer elects to terminate this Agreement (after Inspection
Period), Seller shall retain all earnest 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.
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.
3
4
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. SIGN EASEMENT. Prior to or at Closing, Buyer agrees to provide Seller a
sign easement at the front comer of Buyer's lot at Woodruff Road and Five Fork
Plaza Court and immediately next to Five Forks Plaza Court. Said easement shall
be a minimum of ten feet (10') wide and five feet (5) deep - any larger size
sign easement shall be mutually agreed upon by Buyer and Seller. The sign
easement shall be included in the final survey prior to Closing.
22. MODULAR BANK BUILDING. Seller agrees to allow Buyer to locate a modular
bank building on the Property to be purchased for a period of time until the new
bank building can be constructed; however, Buyer is required to initiate
construction for the new bank building within eighteen (18) months of Closing
for the Property. If the new bank building is not completed and a Certificate of
Occupancy issued within thirty six (36) months of Closing, then Buyer agrees to
remove the modular unit from the Property within thirty (30) days notice from
Seller.
23. 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.
24. 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.
25. 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.
26. DRIVEWAY CROSS EASEMENT AND MAINTENANCE. Buyer and Seller agree to
share equally in the costs of constructing a joint private driveway to the rear
of the property and approximately perpendicular to Five Forks Plaza Court (see
location of driveway on Exhibit A herein). Buyer and Seller agree to provide for
joint easement and for maintenance of said driveway on a 50/50-percentage basis.
27. JOINT CURB CUT AND DRIVEWAY ENTRY FROM WOODRUFF ROAD. During the
Inspection Period, Buyer agrees to request a curb cut from the South Carolina
Department of Transportation with the centerline of the curb cut to be located
at the southeastern comer of the Property along Woodruff Road (see Exhibit A).
If the South Carolina Department of Transportation agrees to a curb cut at this
location, then Buyer agrees to construct the curb cut and driveway beginning at
the pavement edge of the new Woodruff Road, connecting with the front boundary
of the Property, and extending from the property line inward by a distance to be
mutually agreed upon by Buyer and Seller prior to Closing.
4
5
Buyer and Seller shall share in the costs of the curb cut and driveway on a
50/50-percentage basis. Buyer and Seller shall execute an agreement for joint
easement of the entry driveway at or prior to closing.
28. EXPIRATION. This offer will expire and become null and void if not
executed by Seller and returned by Buyer by _____________________________.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties.
SELLER: Wilbert Burial Vault Co., Inc.
Profit Sharing Plan
/s/ John W. Fort By: /s/ Stephen M. Young 09/30/98
- ----------------------- -----------------------------------------
Witness Trustee Date
BUYER: MSB Investments Corp.
/s/ Gwen Britt By: /s/ James D. Stewart
- ----------------------- -----------------------------------------
Witness Trustee Date
Its: President 09/24/98
---------------------------------------
5