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EXHIBIT 10.2
THIS AGREEMENT CONTAINS A BINDING, IRREVOCABLE
AGREEMENT TO ARBITRATE AND IS SUBJECT TO ARBITRATION
PURSUANT TO TITLE 15, CHAPTER 47 (UNIFORM ARBITRATION ACT)
OF THE CODE OF LAWS OF SOUTH CAROLINA
STATE OF SOUTH CAROLINA )
) OPTION AGREEMENT
COUNTY OF GEORGETOWN ) (FOR LEASE)
This Option Agreement entered into this 12th day of November, 1999, by
Richmond Realty Company, LLC, a South Carolina Limited Liability Company and
X.X. Xxxxxx, Xx. as Trustee (Lessor) and Sun Bancshares, Inc., a South Carolina
Corporation (Lessee).
W I T N E S S E T H
1. As used herein, the following terms shall have the following
meanings:
a. Agreement: This Option Agreement, any addendums and
modifications hereof or thereof.
b. Closing: Closing shall occur on or before May 1, 2000. The
date, time and location of Closing shall be on such date and at such
time and location mutually agreeable to Lessee and Lessor.
c. Defect of Title: Any impediment whatsoever affecting the
marketability of the title to the Property as determined by Lessee's
attorney other than Permitted Encumbrances and for which affirmative
coverage cannot be obtained through Title Insurance.
d. Option Money: The monies paid by Lessee to Lessor herewith for
this option created by this Agreement; said option money is to be paid
in monthly installments of Four Thousand Five Hundred Eighty-three and
33/100's ($4,583.33) Dollars each commencing on the date of this Option
Agreement and continuing monthly thereafter for the term of this option
on the first day of each month (the "due date"). Should Lessee fail to
make any monthly option payment as provided herein with five (5) days
of its due date, the Lessor may elect to terminate this Option, and
Lessee shall forfeit all rights hereunder including all option monies
previously paid to Lessor.
e. Permitted Encumbrances: Matters affecting title which Lessee
agrees to take the Property subject to as set forth in Exhibit "B"
attached hereto.
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f. Property: The real estate described on Exhibit "A" attached
hereto together with all improvements, rights, titles and interest
appurtenant thereto.
g. Terms of Lease: The lease will be a triple net lease for an
initial thirty (30) year term ending April 30, 2030 with four (4) five
(5) year renewal options to be exercised only as specified in Paragraph
"1k.", below. The rent will be on an absolute net basis. The proposed
rent schedule is as follows:
For years 1-3, the rent will be Fifty-five Thousand and
No/100's ($55,000.00) Dollars per year. For the remaining
years of the initial term, beginning the fourth (4th) year and
every three (3) years thereafter, the rent will be adjusted by
the corresponding change in the Consumer Price Index
(hereinafter CPI) over the prior three (3) year period. Should
the Lessee exercise its renewal option as herein provided in
Paragraph "1k." below, the rental for any such option period
shall be adjusted to provide a twelve (12%) percent annual
return to Lessor on the value of the land, minus all
improvements thereon, with such rental thereafter to be
adjusted by the CPI in the third (3rd) year for the balance of
that option period. Should the Lessor and Lessee fail to agree
on the value of the land within (30) days of the notice of
exercising such option, the value of the land shall be
established by the appraisal of a licensed appraiser mutually
agreed upon by the Lessor and Lessee, with the expense
therefor to be shared equally between the parties. If the
Lessor and Lessee are unable to mutually agree upon an
appraiser, each shall select a licensed appraiser and the two
(2) appraisers so selected shall select a third, and the
average value as determined by all three (3) appraisers shall
be conclusive as to the value of the land. All rent as
provided herein shall be paid annually in advance on or before
May 1 of each year.
h. Lessee: Sun Bancshares, Inc., its successors and assigns.
i. Lessor: Richmond Realty Company, LLC and X.X. Xxxxxx, Xx. as
Trustee, their heirs, successors, assigns, executors and
administrators.
j. Term: This option shall commence on the date this Agreement is
executed by Lessor and shall terminate at midnight May 1, 2000.
k. Exercise of Renewal Options: Lessee may only exercise renewal
options as specified in Paragraph "1.g.", above, by giving the Lessor
at least 180 days written notice prior to the expiration of any term
indicating the Lessee's intention to exercise such option.
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GRANT OF OPTION
2. Grant: In consideration of the Option Money paid herewith, the
receipt and sufficiency of which is acknowledged, Lessor has granted, bargained,
sold and conveyed and by these presents does grant, bargain, sell and convey
unto Lessee an option to lease the property during the Term upon such terms and
conditions set forth in this Agreement.
EXERCISE OF OPTION
3.1 Exercise: Provided Lessee is not in default under any of the terms
hereof or this Option has not been terminated, Lessee may exercise this option
at any time during its term upon ten (10) days notice to Lessor as provided for
herein in writing and by paying to Lessor within the term of this option the
first years rent payment set forth in Item 1(g), less a credit for the option
money which has been previously paid to Lessor.
3.2 Failure to Exercise: If Lessee fails to exercise the option during
the term hereof, Lessor shall retain all Option Money paid by Lessee, and the
within Agreement shall be of no further force or effect, with neither party
having any further obligation nor liability to the other. Upon failure of Lessee
to exercise this option in its entirety, Lessee and/or Lessor shall file of
record in the office of the Register of Deeds for Georgetown County, South
Carolina a statement that this option is of no further effect and is null and
void.
DELIVERIES, REPRESENTATIONS AND WARRANTIES OF LESSOR
4.1 Conveyance of Title: At closing, Lessor must furnish Lessee good
and marketable leasehold title to the Property, subject only to the "Permitted
Encumbrances" set forth on Exhibit "B" and any other title matters acceptable to
Lessee.
4.2 Memorandum of Lease: The parties agree to also execute and deliver
a Memorandum of Lease with customary basic terms in recordable form for
recording in the State of South Carolina.
4.3 Status of Title: Lessor has good and marketable title in fee simple
to the Property free and clear of all liens, encumbrances, restrictions,
assessments except as set forth in Exhibit "B" attached hereto.
4.4 Default by Parties: In the event either party fails to comply with
or perform any condition to be complied with or any covenant or other obligation
to be performed by either party, respectively, under the terms and provisions of
this Agreement, or in the event any representation or warranty of either party,
respectively, contained herein is not true and correct as of the date hereof and
as of the Closing date, either party shall be entitled to exercise any and all
rights and remedies available to it at law or in equity, including, without
limitation, (I) an action at law equity against the offending party for the
specific performance by either party being liable for all attorney's fees in
connection with such action; and (ii) an action in equity against the offending
party for the specific performance by either party of the terms and provisions
of this Agreement by either party being liable for all attorney's fees in
connection with such action; and (iii) in the event that Lessor fails to convey
title as provided in Paragraph 4.1 and 4.2 hereof or defaults under this
Agreement then Lessee shall have the right to terminate and receive immediate
refund of Option Money paid pursuant to this option, at the option of Lessee,
provided, however, such remedy is not exclusive of (I) and (ii); (iv) in the
event Lessee defaults under this Agreement and fails to cure same after thirty
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(30) days written notice, Lessor shall have the right, in addition to any other
remedies hereinabove provided, to immediately terminate this Agreement and all
of Lessee's rights hereunder.
4.5 Brokerage: Lessor and Lessee both represent that Commercial LandTec
and Century 21, Xxxxxx & Associates are the only brokers involved in this
transaction and the Lessor shall be responsible for all commissions due and
payable, if any, to these two (2) brokers. Each party shall indemnify and hold
harmless the other from and against all liability, loss, cost and expense,
whether or not meritorious, for any claims for real estate or brokerage fees,
commission, or expenses in connection with this transaction due, or claimed by,
any other brokers not disclosed herein.
4.6 Condition of Property: From the date hereof through Closing neither
Lessor nor Lessee may use the property in any manner inconsistent with the
intended use as bank by Lessee. Changes in the property because of an act of God
or otherwise not brought about by Lessor shall not constitute an act of default
by Lessor.
4.7 Organization and Authority: That Richmond Realty Company, LLC is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of South Carolina, and the officers who are
executing this Agreement on behalf of Lessor have all requisite power and
authority to sign and deliver this Agreement. That X.X. Xxxxxx, Xx. is the duly
authorized Trustee under Deed of May Allston Xxxxx dated December 29, 1972,
recorded in Georgetown County in Deed Book 109 at Page 743 and has all requisite
power and authority to sign and deliver this Agreement. That Lessee is a
corporation duly organized, validly existing and in good standing under the laws
of the State of South Carolina and the officers who are executing this Agreement
on behalf of Lessee have all requisite power and authority to sign and deliver
this Agreement.
4.8 Availability of Utilities: Lessor represents that to the best of
its knowledge, adequate water, sewer, electrical, telephone and cable TV
services are available nearby to serve the proposed bank of Lessee; that Lessor
is unaware of disproportionate cost for these services; and that Lessor will
allow Lessee to tie onto the existing water and sewer lines now belonging to
Lessor without any payment to Lessor. Lessor shall grant to Lessee at not cost
to Lessee, such easements as are necessary to construct, maintain and repair
such utilities and drainage as are required by governmental authorities to
dedicate same and by utility companies or authorities, and as are necessary for
ingress, egress, access, construction, and maintenance. These easements shall
cross under, over, and through the Lessor's property at location required by
such companies or governmental authorization, or at locations approved by
Lessor, which approval shall not be unreasonably withheld.
4.9 Environmental Warranties: Lessor represents that it does not know
and has no reason to know that any hazardous substances now or at the time of
closing, as contemplated under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA") (42 U.S.C. ss.9601 et seq.) as
amended, was disposed of on, in or at the location of the Property and that no
enforcement actions are threatened or pending. These representations will
survive the closing of the property herein. Lessor shall provide Lessee with an
Affidavit at closing that to the best of their knowledge the above
representation is true and correct.
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4.10 Zoning: Lessor represents that the Property is zoned PUD General
Commercial which is consistent with use of the Property as contemplated by
Lessee.
4.11 Access: Lessor represents that the Property has unrestricted and
direct access and ingress and egress to and from abutting highways of the
Property; there are no encroachments upon the Property; that there are no
existing violations of zoning ordinances or other laws, ordinances, or
restrictions applicable to the Property.
DELIVERIES, REPRESENTATIONS AND WARRANTIES OF LESSEE
5.1 Lease Payment: At the Closing, Lessee shall pay the first year
lease payment thereof to Lessor in cash or certified funds less the option money
credit as hereinabove set forth.
5.2 Richmond Place Road Maintenance: At closing, Lessee will execute
and deliver to Lessor, for the benefit of the Lessor, a covenant and agreement
to contribute to the future cost of the upkeep and maintenance of the streets
and roads within Richmond Place PUD; said costs to be calculated on a percentage
basis as determined by the amount of acreage of the Property as compared to the
total acreage of all property with Richmond Place, exclusive of roads and
rights-of-way. The agreement shall further provide that all decisions regarding
expenditure of funds for upkeep and maintenance shall be made and determined a
majority vote of the tenants and/or owners within Richmond Place.
INSPECTION OF PROPERTY
6.1 Inspection: Lessor agrees that as of the date of this Agreement,
Lessee, its agents and representatives, shall at all times before the Closing,
have the privilege of going upon the Property to inspect, examine, survey and
otherwise do what Lessee deems necessary for the development of the Property as
a bank in keeping with terms hereof.
MISCELLANEOUS
7.1 Materialman and Mechanics Liens: As to any property standing in the
name of Lessor upon which Lessee performs any construction, surveying,
engineering or other work or construction, Lessee agrees that no materialman's
or mechanics' liens shall attach to the subject property, and that in the event
such liens should attach, Lessee agrees to remove same within thirty (30) days
and in the event that Lessee fails to so remove that Lessor may remove same at
Lessee's expense and be reimbursed by Lessee, including Lessor's attorneys' fees
and interest on all expenditures by Lessor from the date of the same at the
judgment lawful rate of interest permitted by the laws of the State of South
Carolina.
7.2 Property Tax Adjustments at Closing: With respect to real estate
taxes assessed on the subject property, the parties hereto agree to prorate, as
of closing, the amount of taxed paid or payable for the applicable year. Roll
back taxes, if any, shall be the responsibility of Lessor.
7.3 Costs and Expenses: Unless otherwise herein stated, Lessor and
Lessee shall each bear the closing costs (including stamps, documentary fees,
and transfer taxes) respectfully incurred by them in connection with this
Agreement as are imposed by custom and practice in the State of South Carolina
upon Lessee and Lessor respectively in such transactions.
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7.4 Applicable Law: This Agreement and the instruments referred to
herein embody the entire Agreement and understanding between the parties hereto
relating to the subject matter hereof and replaces any prior Agreement and no
modifications will be binding unless in writing and signed by Lessor and Lessee.
Any terms of this Agreement which by their terms are to be performed or
continuing after Closing shall be deemed to survive Closing.
7.5 Severability: If any term or provision of this option or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, shall not be affected thereby and each term and
provision of this option shall be valid and shall be enforced to the fullest
extent permitted by law.
7.6 Title and Caption: The titles or captions of the provisions of
this Agreement are merely descriptive and are not representations of matters
included or excluded from the provisions.
7.7 Gender and Number: Whenever the context so requires, references
herein to the neuter gender shall include the masculine and/or feminine gender,
and the singular number shall include the plural.
7.8 Additional Documents: The parties hereto hereby agree to execute,
acknowledge (if necessary) and deliver such other documents or instruments
including, but not limited to, affidavits of Lessor as may be required by any
title company and memorandums of this Agreement in form sufficient for
recording, as the other party (or its designee) may reasonably require from time
to time to carry out the intents and purposes of this Agreement.
7.9 Time is of the Essence: Time is of the essence in payment of
purchase money and performance of all terms of option.
7.10 Notices, Demands and Payments: Notices and demands hereunder shall
be given only by registered or certified letter return receipt requested and
shall be mailed with proper and adequate postage affixed to the parties hereto
at the following addresses:
LESSOR LESSEE
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Richmond Realty Company, LLC Sun Bancshares, Inc.
Xxxx X. Xxxxxx P. O. Box 1359
0000 Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxx, XX 00000
Xxxxxxxxxx, X.X. 00000 Att: Xxxxxx Xxxxxxxxx
And To: With Copy To:
X.X. Xxxxxx, Xx., Trustee Xxxxxx X. Xxxxx, Xx.
Post Office Drawer 459 Post Office Drawer 14607
Georgetown, S.C. 29442 Xxxxxxxx Xxxxx, X.X. 00000-0000
All Option Payments shall be mailed to Richmond Realty Company, ATT:
X.X. Xxxxxx, Xx., P. O. Xxxxxx 000, Xxxxxxxxxx, XX 00000.
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7.11 Binding Effect: The Option Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, devisees, executors,
administrators, and assignees.
7.12 Arbitration: The parties agree that any dispute arising between
the parties regarding this Agreement or the breach thereof shall be submitted to
arbitration. Any matter herein to be arbitrated will be arbitrated on the
written request of either party, who shall name an arbitrator at the time of
making such request. The other party shall select an arbitrator within ten (10)
days after written request with the power being given to those arbitrators to
select a third if the two first appointed are unable to agree within thirty (30)
days after the initial request for arbitration. The majority opinion will
control in the case of three arbitrators.
Whenever the parties hereto are each required to appoint an arbitrator
and one of the parties refuses or fails to appoint such arbitrator after the
specified notice from the other party; the Clerk of Court for Georgetown County,
South Carolina, shall be empowered to appoint such other arbitrator upon the
petition of the other party. Whenever the two arbitrators designated in the
manner provided for herein shall fail within the ten (10) days stipulated herein
to agree upon the third arbitrator, if the first two are unable to agree, then
the Clerk of Court for Georgetown County, South Carolina, shall be empowered to
appoint such third arbitrator upon the petition of either party hereto. The
Clerk may make such appointment ex parte but will give Lessor, Lessee and the
other arbitrators notice thereof by regular U.S. Mail. All costs of such
arbitration shall be borne equally by the parties.
7.13 Disclaimer of Joint Venture: Lessor and Lessee certify and
acknowledge that they are not participating in a joint venture and fully
disclaim same.
7.14 Assignment: Lessee may not assign its rights hereunder without the
express written consent of the Lessor, however such consent will not be
unreasonably withheld. No such assignment shall constitute, or be construed as,
a release or discharge of the Lessee with respect to its obligations under the
Lease, unless expressly agreed to in writing by the Lessor.
7.15 Architectural Approval By Lessor: Lessee agrees that the
exterior appearance of all improvements placed on the property must be reviewed
and approved, in advance, by the Lessor, provided however, such approvals will
not be unreasonably withheld.
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IN WITNESS WHEREOF, the Parties have set their hands and seals the day
and year first above written.
IN THE PRESENCE OF: LESSOR:
RICHMOND REALTY COMPANY, LLC
Signature Illegible By: Signature illegible
--------------------------------- -----------------------------------
Authorized Member
Signature Illegible By: /s/ X.X. Xxxxxx, Xx
--------------------------------- -----------------------------------
As to Lessor X.X. Xxxxxx, Xx., Trustee
LESSEE:
SUN BANCSHARES, INC.
Signature Illegible By: /s/ Xxxxxx Bouchettte
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Xxxxxx Xxxxxxxxx, President
Signature Illegible
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As to Lessee
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EXHIBIT "A"
All that certain piece, parcel or lot of land situate, lying and being in the
City and County of Georgetown, State of South Carolina LOCATED ON THE SOUTH SIDE
OF THE INTERSECTION OF FRASER STREET AND (FUTURE) INDIGO HALL AVENUE, CONTAINING
ONE (1.10) ACRES and more particularly designated as Phase III-A on a sketch
attached hereto as Exhibit "A-1" and incorporated herein by reference.
[Exhibit "X-0," Xxxxxx xx Xxxxx XXX-X appears here]
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EXHIBIT "B"
Permitted encumbrances shall be:
1) Roll Back taxes to be paid by Lessor;
2) Property Taxes for the current tax year not yet due and payable;
3) Standard Exceptions of a ALTA Owners Title Policy;
4) All terms and provisions provided for in this Option Agreement.
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