EXHIBIT 10.4
PURCHASE AGREEMENT
X.X. INVESTMENTS, INC., an Indiana corporation (the
"Purchaser") offers to purchase from MAC'S RESTAURANTS, INC., an
Indiana corporation (the "Vendor"), the following described real
estate and other property located in Xxxxxxx County, Indiana,
commonly known as 000 X. Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000,
the legal description of which is:
All of the South 125 feet of the following
described property:
Part of the west half of Section 14, and part
of the east half of Section 15, in Township 12
North, range 4 East of the Second Principal
Meridian, in Xxxxxxx County, Indiana,
described as follows:
Beginning at a point that is 342.00 feet north
of the north-west corner of Xxxxxxxx and
XxXxxx Addition to the City of Franklin,
Indiana, said point being in the east line of
the Xxxxxxx County Fairgrounds; thence east
and parallel to the north line of said
addition 380.50 feet to the west line of the
right-of-way of U.S. Road 31; thence north
with said right-of-way line 250.00 feet;
thence west and parallel with the north line
of said Addition 379.00 feet to the east line
of said Fairgrounds; thence south 250.00 feet
to the place of beginning.
including all buildings and permanent improvements and fixtures
attached thereto, either permanently installed or which belong to
or are used in connection with the real estate, wherever located,
such as electrical or gas fixtures, heating equipment, hot water
heater and water softener, and all furniture and restaurant
equipment together with all privileges and appurtenances pertaining
thereto including any right, title and interest of Vendor in and to
adjacent streets, alleys or rights of way, and Vendor's rights
under that certain Easement for Use of Parking Areas in Common
dated April 17, 1987 with Xxxxxx Xxxxx Xxxxxx of Christian County,
Illinois (the "Easement") (all referred to as the "Real Estate")
for $525,000.00 (the "Purchase Price"), payable upon and subject to
the following written terms and conditions:
X. Xxxxxxx Money Deposit. Purchaser has tendered to Vendor an
xxxxxxx money deposit of $2,500.00 (the "Xxxxxxx Money").
The Xxxxxxx Money shall be applied to the portion of the
Purchase Price payable in cash at the time of closing if the
transaction closes. The Xxxxxxx Money shall be returned
immediately to Purchaser if this offer is not accepted.
II. Method of Payment. On and after closing of this transaction,
Purchaser shall pay the Purchase Price to Vendor in
installments with interest from and after the closing on or
before December 31, 1997, as follows:
Cash payable at closing of $50,000.00 (including the
Xxxxxxx Money), interest rate on the unpaid balance
at 9.5% per annum calculated monthly and paid
monthly on or before the first day of each month in
arrears; level monthly payments of principal and
interest of $5,000.00 on or before the first day of
each month; first payment shall be due on August 1,
1997; interest shall commence the day after closing.
All unpaid principal and interest shall be paid in
full on or before December 31, 1997.
Purchaser's obligations to pay the unpaid balance of the
Purchase Price and interest thereon after the closing shall
be secured by (a) a mortgage on the Real Estate on the
standard form of the Indianapolis Bar Association (the
"Mortgage") and (b) the personal guaranties of Xxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxx (the "Guaranties"), which shall
be delivered at closing.
III. Conditions of Offer. In addition to other provisions of this
Purchase Agreement, the Purchaser's obligations hereunder are
subject to satisfaction of the following conditions unless
waived, in whole or in part, by Purchaser.
A. That all improvements in the Real Estate are located
entirely within the bounds of the Real Estate as shown by
the survey to be prepared for closing and that there are
no encroachments thereon and no existing violations of
zoning ordinances or other restrictions applicable to the
Real Estate.
B. That results are satisfactory to Purchaser from a
geoenvironmental audit, Phase I, including asbestos
review, that is conducted at the Purchaser's expense.
C. That good and indefeasible title in fee simple to the
Real Estate is conveyed to Purchaser at closing, free and
clear of any and all liens, encumbrances, conditions,
easements (except the Easement), assessments,
reservations, and restrictions except:
1. the lien of current real estate taxes not
delinquent;
2. easements and restrictions that do not materially
affect Purchaser's intended use of the Real Estate
as a commercial bank or affect the marketability of
title; and
3. such matters satisfactory to Purchaser as may be
approved by Purchaser in writing.
D. That possession of the Real Estate is delivered to
Purchaser in the condition existing at the time of the
delivery of this offer by Purchaser to Vendor, ordinary
wear and tear excepted.
E. That the Easement (Attachment "A" to this Agreement) is
properly recorded in the Xxxxxxx County Recorder's
Office, and Xx. Xxxxxx, the other party to the Easement,
shall have executed a written consent approving
Purchaser's intended modifications to the parking and
other areas covered by the Easement.
F. That the representations and warranties of Vendor in Part
IV are true and correct in all material respects as of
the closing date.
IV. Representations and Warranties of Vendor. Vendor represents
and warrants to Purchaser as follows, which representations
and warranties shall be deemed made by Vendor to Purchaser
also as of the closing and such representations and
warranties shall survive the closing:
A. There are no parties in possession of any portion of the
Real Estate as lessees, tenants at sufferance, or
trespassers.
B. There is no pending or threatened condemnation or similar
proceeding or assessment affecting the Real Estate, or
any part thereof, nor to the best knowledge and belief of
Vendor is any such proceeding or assessment contemplated
by any governmental authority.
C. Vendor is the fee simple owner of the title to the Real
Estate and Vendor is an Indiana corporation in good
standing, and all Board of Directors, shareholder and
other corporate approvals have been obtained to authorize
the Vendor to execute this Agreement and to sell the Real
Estate.
D. Vendor has paid or will pay at or prior to closing all
taxes, charges, debts, and other assessments then due by
the Vendor with respect to the Real Estate and will pay
in November, 1997 the installment of taxes then due with
respect to the Real Estate.
E. The Real Estate is not in a flood plain or water
district.
F. Vendor knows of no existing condition with respect to the
Real Estate which violates any government code, rule,
statute, ordinance or regulation.
G. Vendor has no knowledge that the Real Estate is subject
to any surface or subsurface ground faults, nor are there
any underground storage tanks present.
H. To the best of Vendor's knowledge, no fact or condition
exists which would result in the termination of the
current access from the Real Estate to any presently
existing highways and/or road adjoining or situated on
the Real Estate; or to any existing sewer or other
utility facilities servicing, adjoining, or situated on
the Real Estate.
I. Vendor has no knowledge of any pending or contemplated
change in any statute, ordinance, rule or other
governmental regulation applicable to the Real Estate; or
any action pending or threatened by any governmental
body, adjacent landowners or other persons, or of any
condition of the Real Estate, which would in any way
limit the use of the Real Estate or diminish its value.
J. There are no attachments, executions, assignments for the
benefits of creditors, or voluntary or involuntary
proceedings in bankruptcy or under any other debtor
relief laws contemplated by or pending or threatened
against Vendor or the Real Estate.
K. Vendor has no knowledge of any latent structural defects
of the Real Estate. THIS REPRESENTATION K IS NOT
INTENDED TO BE A WARRANTY AND NO EXPRESS OR IMPLIED
WARRANTY IS GIVEN BY VENDOR WITH RESPECT TO THE REAL
ESTATE WHICH IS TO BE PURCHASED BY PURCHASER "AS IS,"
ORDINARY WEAR AND TEAR EXCEPTED.
L. The Real Estate has not been designated a landmark or
historic building.
V. Survey and Title Evidence.
A. Vendor, at Vendor's expense, shall furnish Purchaser
within 15 days after acceptance of this offer a
Commitment for an Owner's Policy of Title Insurance
("Commitment") in an amount equal to the amount of the
Purchase Price from a company acceptable to Purchaser.
The Commitment shall include an endorsement certifying
that the Real Estate is properly zoned for Purchaser's
intended use as a commercial banking facility. If
Purchaser has an objection to items disclosed in such
Commitment or the survey provided for herein, Purchaser
shall promptly make written objections to Vendor after
receipt of each such instrument. If Purchaser makes such
objections, Vendor shall have ten (10) days from the date
such objections are disclosed to cure the same, and the
Closing Date shall be extended, if necessary; provided,
however, that Vendor makes no representation concerning
the zoning permissibility of Purchaser's intended use and
Vendor shall have no obligation to cure or remedy any
zoning obligation disclosed in the Commitment. Vendor
agrees to utilize its best efforts and reasonable
diligence to cure such objections (other than any
objections relating to zoning), if any. If the
objections are not satisfied within such time period,
Purchaser may (a) terminate this Agreement, or (b) waive
the unsatisfied objections and close the transaction.
B. Vendor, at Vendor's expense, shall provide a staked
survey of the Real Estate, certified as of a current
date, showing the location of all improvements and
easements located thereon, complying with the Minimum
Standard Detail Requirements for Indiana Land Title
Surveys, and shall reflect whether the Real Estate is
located in a designated flood zone area.
VI. Taxes and Assessments. Purchaser assumes and agrees to pay
all assessments for public improvements becoming a lien after
closing, and all installments of real estate taxes due and
payable in May, 1998, and thereafter.
VII. Risk of Loss. Vendor shall bear the risk of loss or damage
or destruction to the Real Estate occurring subsequent to the
acceptance of this Purchase Agreement and until delivery of
the deed. In the event any such damage or destruction is not
fully repaired prior to closing, Purchaser, at its option,
may either (a) terminate this Agreement, or (b) elect to
close the transaction, in which event Vendor's right to all
insurance proceeds resulting from such damage or destruction
shall be assigned in writing by Vendor to Purchaser.
VIII. Inspection. Purchaser acknowledges that Vendor has made no
warranties or representations pertaining to the quality or
condition of the Real Estate other than lack of actual
knowledge of ground faults, underground storage tanks, and
latent structural defects (Section IV (G) and (K)) and
regarding the Responsible Property Transfer Law (Section
XII). Purchaser has inspected the premises and agrees to
purchase the Real Estate in an "as is" condition. Vendor
agrees to maintain and to insure against fire and casualty
the Real Estate in its present condition (wear and tear
excepted) until possession is delivered to Purchaser.
IX. Default. If Purchaser breaches this Agreement and is in
default, (a) Vendor may seek specific performance or any
other remedy provided by law or equity; or (b) Vendor may
treat this Agreement as being terminated and receive the
Xxxxxxx Money as liquidated damages. If Vendor breaches this
Agreement and is in default, then the Xxxxxxx Money shall be
returned to Purchaser. In addition, if Vendor is in default,
the Purchaser may seek specific performance or any other
remedy provided by law or equity against the Vendor. If the
transaction does not close for any reason other than default
by Purchaser, the Vendor shall return the Xxxxxxx Money to
Purchaser.
X. Closing and Possession. The transaction shall be closed at
a time and place acceptable to the parties but in no event
later than July 1, 1997, and possession of the Real Estate
shall be delivered at Closing. Either party may, however,
request and receive a 15-day extension of the closing date in
the event the transaction cannot be closed due to delay in
obtaining the title or survey evidence or the Phase I report,
or satisfying objections to the results thereof.
A. At closing, Vendor shall deliver to Purchaser at Vendor's
sole cost and expense, the following:
1. A duly executed and acknowledged Corporate Warranty
Deed conveying good and indefeasible title in fee
simple to all of the Real Estate, free and clear of
any and all liens, encumbrances, conditions,
easements, assessments, reservations and
restrictions, except as permitted herein and/or
approved by Purchaser in writing.
2. Vendor's Affidavit.
3. An Owner's Policy of Title Insurance (the "Title
Policy") issued by a reputable title insurance
company chosen by the Vendor (the "Title Company")
in the full amount of the Purchase Price, dated as
of closing, insuring Purchaser's fee simple title
to the Real Estate to be good and indefeasible
subject only to those title exceptions permitted
herein, or as may be approved by Purchaser in
writing, and the standard printed exceptions
contained in the usual form of the Title Policy and
including the zoning endorsement required to be
included in the Commitment; however, the exception
as to area and boundaries shall be deleted and the
exception as to restrictive covenants shall be
endorsed "None of Record," unless any existing
restrictive covenants are approved by Purchaser.
4. A Xxxx of Sale containing warranties to title,
conveying title, free and clear of all liens, to
all personal property specified herein (but which
need not itemize property) all duly executed by
Vendor.
5. If requested by Purchaser, to the extent
assignable, an assignment of any one or more of the
insurance policies held by Vendor pertaining to the
Real Estate, duly executed by Vendor (insurance
costs to be prorated based on date of closing).
6. Evidence of Vendor's capacity and authority for the
closing of this transaction.
7. A certification establishing that no federal income
tax is required to be withheld under the Foreign
Investment and Real Property Tax Act, or a consent
to withholding of tax from the proceeds of sale as
required.
8. All other necessary documents to close this
transaction.
9. Proof of payment of Indiana Gross Income Tax, if
payable.
B. At the closing, Purchaser shall perform the following:
1. Pay the cash portion of the Purchase Price payable
at closing in the form of a certified or cashier's
check.
2. Furnish evidence of Purchaser's capacity and
authority for the closing of this transaction.
3. Deliver the Mortgage.
4. Deliver the Guaranties.
5. Execute all other necessary documents to close this
transaction.
XI. Duration of Offer. This offer shall expire if written
acceptance endorsed hereon is not delivered to Purchaser on
or before 5:00 p.m. o'clock on June ___, 1997.
XII. Responsible Property Transfer Law.
A. The Vendor represents to Purchaser that it is not
required to provide the Purchaser with a Disclosure
Statement pursuant to Indiana's Responsible Property
Transfer Law because the Real Estate is not defined as
"property" (I.C. Section 13-11-2-174).
B. If, after execution of this Agreement, Vendor learns that
the Real Estate comes within the terms of the Responsible
Property Transfer Law, then Vendor at its expense agrees
to provide Purchaser with the required Disclosure
Document and comply with all other parts of this law.
XIII. Sales Expenses. Vendor and Purchaser agree that all sales
expenses are to be paid in cash prior to or at the closing.
A. Vendor's Expenses. Vendor agrees to pay all costs of the
Owner's Title Policy; survey; 1/2 of any closing fee;
preparation of Deed and Vendor's Affidavit; Indiana Gross
Income Tax, if any; and other expenses stipulated to be
paid by Vendor under other provisions of this Agreement.
B. Purchaser's Expenses. Purchaser agrees to pay 1/2 of any
closing fee; and any other expenses stipulated to be paid
by Purchaser under other provisions of this Agreement.
C. No Brokerage. Purchaser and Vendor each represent and
warrant to the other that neither has engaged or
contacted or discussed the Real Estate with any broker or
other person who might or could assert any claim against
the Real Estate or against Vendor or Purchaser for a
brokerage commission, and each agrees to indemnify and
hold harmless the other for all expense and loss suffered
from any breach of this representation and warranty.
XIV. Miscellaneous.
A. Any notice required or permitted to be delivered
hereunder, shall be deemed received when personally
delivered, or on the second business day after it is
deposited in the United States mail, postage prepaid,
certified and return receipt requested, addressed to
Vendor or Purchaser, as the case may be, at the address
set forth below the signature of each party hereto.
B. This Agreement shall be construed under and in accordance
with the laws of the State of Indiana.
C. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives,
successors, and assigns. Purchaser intends to change its
corporate name to Heartland Bancshares, Inc., before the
date of closing, in which event all documents referred to
herein shall reference the new name. Vendor acknowledges
and understands Purchaser intends to assign its interest
in this Agreement to Heartland Bancshares, Inc.
Provided, however, until such time as the full amount of
the purchase price has been paid to Vendor, there shall
be no subsequent assignment of this agreement without
Vendor's prior written consent. In any event any
assignment of this agreement shall not relieve or void
the Guaranties of Xxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxx.
D. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such
invalidity, legality, or unenforceability shall not
affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
E. This Agreement constitutes the sole and only agreement of
the parties hereto and supersedes any prior
understandings or written or oral agreements between the
parties respecting the transaction and cannot be changed
except by their written consent.
F. Time is of the essence of this Agreement.
G. The prevailing party in any legal or equitable proceeding
against any other party brought under or with relation to
this Agreement or transaction shall be additionally
entitled to recover court costs and the prevailing
party's reasonable attorney's fees from the non-
prevailing party.
H. All rights, duties and obligations of the parties shall
survive the passing of title to, or an interest in the
Real Estate.
X.X. INVESTMENTS, INC.
DATED: 6-12-97 By /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
Address:
X.X. Xxx 000
Xxxxxxxx, XX 00000
ACCEPTANCE OF OFFER AND RECEIPT FOR XXXXXXX MONEY
The undersigned, Vendor, hereby accepts such offer and
acknowledges receipt of the Xxxxxxx Money to be held for
Purchaser's benefit and either applied, returned or
forfeited according to the terms of this Purchase
Agreement.
MAC'S RESTAURANTS, INC.
DATED: 6-16-97 By /s/ Xxxxx X. Xxxxxx
Its President
PROMISSORY NOTE
[ON LENDER'S FORM -- APPLICABLE INFORMATION ONLY]
BORROWER'S NAME/ADDRESS LENDER'S NAME/ADDRESS
HEARTLAND BANCSHARES, INC. FIRST STATE BANK, TRAFALGAR ACCOUNT #0000000
1681 N 000 X 000 X XX. XX. 135 LOAN NUMBER 48677
XXXXXXXX, XX 00000 XXXXXXXXX, XX 00000 DATE: JULY 24, 1997
MATURITY: JANUARY 20, 1998
LOAN AMOUNT $475,500.00
SS#: 00-0000000
For value received, I promise to pay to you, or your
order, at your address listed above the PRINCIPAL sum of
FOUR HUNDRED SEVENTY FIVE THOUSAND FIVE HUNDRED AND
NO/100 Dollars $475,500.00.
Single Advance: I will receive all of this principal sum
on JULY 24, 1997. No additional advances are
contemplated under this note.
INTEREST: I agree to pay interest on the outstanding
principal balance from JULY 24, 1997 at the rate of
9.000% per year until FIRST CHANGE DATE.
Variable Rate: This rate may then change as stated
below.
Index Rate: The future rate will be 0.500% OVER the
following index rate: PRIME RATE AS PUBLISHED IN THE
WALL STREET JOURNAL
Frequency and Timing: The rate on this note may change
as often as DAILY. A change in the Interest rate will
take effect ON THE SAME DAY.
Effect of Variable Rate: A change in the interest rate
will have the following effect on the payments: THE
AMOUNT DUE AT MATURITY WILL CHANGE.
POST MATURITY RATE: I agree to pay interest on the unpaid
balance of this note owing after maturity, and until paid
in full, as stated below:
on the same fixed or variable rate basis in effect
before maturity (as indicated above).
PAYMENTS: I agree to pay this note as follows:
Interest: I agree to pay accrued interest AT MATURITY.
Principal: I agree to pay the principal JANUARY 20,
1998.
SECURITY: This note is separately PURPOSE: The purpose of this loan is
secured by FIRST REAL ESTATE MORTGAGE BUSINESS: PURCHASE COMMERCIAL PROPERTY.
ON THE PROPERTY LOCATED AT 000 X.
XXXXXX XX., XXXXXXXX, XX AND 2055 SIGNATURES: I AGREE TO THE TERMS OF THIS
SHARES OF BNK NOTE (INCLUDING THOSE ON PAGE 2). I have
received a copy on today's date.
HEARTLAND BANCSHARES, INC.
Signature for Lender BY: /s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX, PRESIDENT
BY:/s/ Xxxxxxx X. Xxxxx
XXXX X XXXXXX, VICE PRESIDENT XXXXXXX X. XXXXX, SECRETARY/TREASURER
3035\XXXXX\PURAGR10.4
