Exhibit 10.3
OPTION
AGREEMENT
THIS OPTION AGREEMENT, made this
22nd day of June, 2009, by and between TOUCHMARK BANCSHARES,
INC., a Georgia corporation (herein referred to as the “
Seller ”), and GWINNETT CLINIC, LTD., a Georgia
corporation (herein referred to as the “ Purchaser
”).
R E C I T A L S
WHEREAS, Seller is the owner of all
that tract or parcel of land lying and being in Land Lot 44 of the
1st District, Fulton County, Georgia, being more particularly
described on Exhibit “A” attached hereto and
incorporated herein by this reference (the “Property”);
and
WHEREAS, Seller desires to grant to
Purchaser an option to purchase the Property.
NOW, THEREFORE, for and in
consideration of the mutual promises and covenants contained herein
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties
hereto, the parties hereto agree as follows:
1. GRANT OF OPTION . Seller
hereby grants and conveys to Purchaser, or its successors and
assigns, an irrevocable and exclusive option to purchase from
Seller, the Property, upon all the terms and conditions hereinafter
set forth (the “Option”).
2. TERM OF OPTION . The term
of the Option shall begin on June 22, 2009, and extend through
December 22, 2010 (the “Option Term”). Purchaser
may exercise the Option at any time during the Option Term upon
providing written notice to Seller, and the conveyance of the
Property as provided herein shall occur no sooner than thirty
(30) days from the date that Seller receives said notice,
unless waived by Seller; PROVIDED, HOWEVER, that Purchaser shall
only have the right to exercise the Option in the event the Seller
is unable to obtain approval from the Office of the Comptroller of
the Currency (“OCC”) and the Federal Deposit Insurance
Corporation (“FDIC”) for the operation of a bank branch
site upon the Property.
3. OPTION PRICE . If
Purchaser exercises its Option as provided herein, Seller shall
sell and transfer the Property to Purchaser and Purchaser shall
purchase the Property from Seller, and Purchaser shall pay to
Seller the purchase price of ONE MILLION SIX HUNDRED THOUSAND AND
NO/100THS DOLLARS ($1,600,000.00), plus all expenses and closing
costs incurred in connection with the initial acquisition by Seller
of the Property from the FDIC. (“Purchase Price”). The
Purchase Price shall be paid to Seller by Purchaser at Closing, as
hereinafter defined, in cash or immediately collectible
funds.
4. TIME OF ESSENCE . Time
shall be deemed as of the essence of this Agreement.
5. BINDING EFFECT . This
Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective heirs, successors and
assigns.
6. CONVEYANCE OF TITLE . The
Seller shall convey good and marketable fee simple title to the
Property to the Purchaser pursuant to recordable limited warranty
deed, free of title
exceptions except those which are approved by
Purchaser. Up through the Closing Date, as hereinafter defined, the
Purchaser may deliver to the Seller a statement of any objections
to the Seller’s title and the Seller shall have the right
(but not the obligation) within a reasonable time thereafter in
which to cure any such objections. In the event that the Seller
fails to cure any such objections, the Purchaser may
(i) terminate this Agreement, or (ii) waive such
objections and close the transaction contemplated by this Agreement
in accordance with all of the terms and provisions hereof. At any
time prior to the Closing Date, the Purchaser shall have the right
to check down the title from and after the effective date of the
preliminary title examination contemplated in this Paragraph 6 and
deliver to the Seller a written statement of any objection which
appears in the public records of Fulton County, Georgia and affects
title to the Property occurring subsequent to the preliminary title
examination. The Seller shall have until the Closing Date to cure,
at its expense, any such objection. In the event the Seller fails
or refuses to cure such objection prior to the Closing Date, the
Purchaser shall have the same rights with respect to such failure
or refusal set forth in this Paragraph 6 as to preliminary title
objections.
7. NOTICES . Any notice or
communication required or permitted hereunder shall be given in
writing, sent (a) personal delivery, (b) expedited
delivery service with proof of delivery, (c) United States
mail, postage prepaid, registered or certified mail, return receipt
requested or (d) prepaid telegram or telex (provided that such
telegram or telex is confirmed by expedited delivery service or by
mail in the manner previously described), addressed as
follows:
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As to
Seller:
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Touchmark
Bancshares, Inc.
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3740 Davinci
Court, Suite 150
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Norcross,
Georgia 30092
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As to
Purchaser:
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Gwinnett
Clinic, Ltd.
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475 Philip
Boulevard, Suite 100
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Lawrenceville,
Georgia 30045
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Either party hereto may change the
address set forth above for giving notice to such party by giving
written notice to the other party in the manner set forth above.
Any such notice or communication shall be deemed to have been given
either (i) in the case of hand delivery, at the time of
personal delivery, (ii) in the case of delivery service or
mail, as of the date of first attempted delivery, or (iii) in
the case of telegram or telex, upon receipt.
8. REPRESENTATIONS
.
A. Representations of Seller
. The Seller makes the following representations, to the
b