Exhibit 10(9)
CONTRACT FOR SALE OF REAL ESTATE
South Grove Landing, LLC (the "Vendor"), offers to sell to Mutual Savings
Bank (the "Purchaser"), the following described unimproved outlot real estate
located generally in the southeast quadrant of Xxxxx Xxxx 000 xxx Xxxxxxxxx
Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, comprised of the legal description which is to be
agreed upon in advance of closing and attached hereto as Exhibit A but in the
interim is depicted as Lot 1 in the multi-use complex attached as Exhibit B (all
referred to as the "Real Estate") for Six Hundred Fifty Thousand Dollars
($650,000.00) (the "Purchase Price"), subject to the following written terms and
conditions:
1. Payment. The Purchase Price shall be paid as follows:
1.1 Xxxxxxx Money Deposit. Purchaser shall tender within two (2) days of
acceptance to Xxxxxxxxx & Schafstall (as Escrow Agent) for placement
in an interest bearing account, simultaneous with Purchaser's
acceptance of this Contract, Ten Thousand Dollars ($10,000.00) (the
"Xxxxxxx Money"). The Xxxxxxx Money and any interest earned thereon
shall be applied to the Purchase Price and shall be credited first to
any portion thereof payable in cash at the time of closing, or until
termination of this agreement, at which time it will be returned to
purchaser unless purchaser is in default of this agreement. The
Xxxxxxx Money shall be returned immediately to Purchaser if this offer
is not accepted.
1.2 Payment on Closing. On closing this transaction, Purchaser shall pay
the Purchase Price less the Xxxxxxx Money in cash to Vendor.
2. Conditions of Offer. In addition to other provisions of this Contract, the
Purchaser's obligations hereunder are subject to satisfaction of the
following conditions unless waived in whole or in part:
2.1 By Vendor:
2.1.1. Curb Cuts. That Vendor is able to secure INDOT approval for at
least one of the commercial curb cuts on State Road #135 and a
Xxxxxxx County curb cut approval on Whiteland Road to be located
in proximity to Lot 1.
2.1.2. Lot Access. Vendor, subject to appropriate County planning and
zoning approval, will permit purchaser to have two (2) points of
entrance/exit for Lot 1. One entrance will be on the South side
and one will be located on the East side of said Lot. In the
event appropriate governmental approval is not granted, purchaser
may reserve the right to not proceed to closing.
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2.1.3. Drainage. Subject to Vendor securing before closing the
necessary easements and government approval for the drainage
requirement of the entire complex depicted on Exhibit B.
2.1.4. Water and Sewer Utilities. Subject to Vendor securing before
closing necessary easements and the right to access sanitary
sewer and water utilities at rates and connection fees
satisfactory to Vendor.
2.1.5. Deed Restriction against the Balance of the Entire Complex
Depicted in Exhibit B. Subject to Vendor and Vendor's counsel
securing and approving specific language in advance of closing
that addresses Purchaser's desire to restrict the complex to
Purchaser having the exclusive right on and therein to a
Financial Institution offering deposit, trust, loan, ATM, nightly
deposit and other financial service products but this shall not
preclude ATM type facilities and business in which such services
are secondary.
2.1.6. Pylon Signage. Subject to Vendor securing pylon signage
approval on Xxxxxxxxx Xxxx xxx Xxxxx Xxxx #000 before closing
that accommodates Purchaser and other contemplated occupants of
the entire complex (Exhibit B).
2.1.7. Owners Association. Subject to Vendor creating an owners
association structure before closing acceptable to Purchaser,
which addresses a sharing of cost after installation by all
owners in the maintenance and or replacement of signage,
drainage, facilities, parking and striping within the complex,
lighting, snow and ice concerns and any other matters of common
owners involvement.
2.1.8. Approval of Improvements. Subject to Purchaser securing
Vendor's written approval of the improvements to be constructed
on Lot 1 before construction commences, which approval will not
be unreasonably withheld.
2.1.9. That Vendor will complete its contract purchase of the Real
Estate before closing.
2.1.10. Zoning and Subdivision Approvals. Seller represents and
warrants that the Property is suitably zoned to a zoning
classification compatible with Buyer's intended use of the
Property as a (bank branch, lock-box, drive-up, ATM, etc.) with
all necessary classifications, variances, permissions,
exceptions, conditional uses, plat and other approvals required
for said purpose. Buyer may verify such matters to its
satisfaction and, in the event Buyer determines that it requires
any approvals, consents, or other documentation with respect to
the zoning or subdivision of the Property, Seller will execute
all necessary consents and other documents necessary for the
filing of zoning petitions or subdivision plats and obtaining the
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zoning, subdivision, conditional use, and appropriate
governmental approvals.
2.2 Conditions of Purchaser's Purchase. The Purchaser's obligation to
purchase the Real Estate is subject to the satisfaction, or written
waiver by Purchaser of the following conditions precedent:
2.2.1. Title. Purchaser, at Purchaser's expense, shall order title
work with coverage equal to the given Real Estate's Purchase
Price which eliminates the standard survey exception and which
otherwise lists exceptions acceptable to Purchaser. The binder
and policy shall delete all standard exceptions and shall also
contain an ALTA 3.0 zoning endorsement, an ALTA 17 public access
endorsement, a contiguity endorsement and an ALTA 9 comprehensive
endorsement. If this transaction closes, the cost hereof will be
a credit against the Purchase Price.
2.2.2. Survey. Purchaser, at Purchaser's expense shall secure a
minimum standard ALTA land title survey that is satisfactory to
Purchaser and to the title company to eliminate its standard
survey exception and which delineates rights-of-way, floodplain
and floodway areas and wetlands as to location and acreage.
2.2.3. Utility Service and Storm Drainage. That utilities customarily
involved in serving Vendor's commercial use will be within
reasonable proximity thereto with sufficient capacity for
Purchaser's facility with the right to connect thereto at a
normal and/or connection fee acceptable to Purchaser.
Notwithstanding this condition, as stated, Purchaser acknowledges
that city water and sewers are not at the property line and will
require Vendor to secure easements within which to extend such
utility service.
2.2.4. Soil Conditions. Purchaser, or his designated parties, at
Purchaser's sole expense, shall have the privilege, during the
term of this Agreement, of going upon the Real Estate to inspect,
examine, make engineering tests and to update Vendor's present
environmental test (Audit One), if any, issued in Purchaser's
name or to secure a new Audit One Report or other studies deemed
appropriate by Purchaser to determine the suitability of the Real
Estate for Purchaser's intended commercial use.
Purchaser shall promptly restore the realty so disturbed to the
condition reasonably matching the pre-disturbed condition and
shall indemnify and hold Vendor harmless for damages occasioned
thereby which will survive closing.
2.2.5. Vendor's Informational Data. Vendor shall within fifteen (15)
days after the Effective Date of this Agreement give to Purchaser
all surveys, site plans, environmental reports, soil reports,
appraisals, engineering
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reports, and other plans, diagrams or studies of any kind in
Vendor's possession which relate to this Real Estate.
3. Vendor's Warranties and Representations. Vendor hereby represents and
warrants that the following are as of the date hereof, and will be at all
closings, true and correct and will survive closing for a period of one (1)
year after closing with Vendor to be liable to Purchaser from any breaches
thereof including reasonable attorney fees.
3.1 Re: Title. That Vendor is an entity to be formed as an Indiana LLC and
is entitled by way of assignment from Duke Development Group, LLC to
be the contract buyer of the Real Estate and the realty that is the
balance of the complex. Vendor represents that it will be the fee
simple title to the Real Estate on or before closing and is unaware of
any adverse conditions to such title, including but not limited to:
3.1.1. Contract rights, verbal, written, recorded, unrecorded,
including leases that claim an interest in the Real Estate;
3.1.2. No citations, statute or ordinance violations;
3.1.3. No restrictions that prohibit Purchaser's use, other than the
conditions in Item 2;
3.1.4. No litigation or threatened litigation; and
3.1.5. No notice of special assessments.
3.2 Re: Survey. Vendor is unaware of any gaps, encroachments or other
limitations adverse to Purchaser's proposed use including, but not
limited to:
3.2.1. Adverse possession rights or threats; and
3.2.2. Prescriptive easement rights or threats.
3.3 Re: Status of Soils. To the best of Vendor's knowledge, the Real
Estate is free of underground storage tanks, xxxxxx non-toxic
dumpsites that may cause gumbo soils, wetlands or excessive ponding
and any toxic contamination by virtue of its prior use or by
infiltration or any other condition known to Vendor that would be
adverse to Purchaser's proposed use of the Real Estate.
3.4 Approval of Purchaser's Proposed Improvements. The written approval
required under Item 2.1.8 hereof shall be confirmed before closing.
4. Closing.
4.1 Due Diligence by Vendor. Vendor shall have one hundred eighty (180)
days after the Effective Date (later defined to be Acceptance Date of
this proposal) within which to satisfy or waive Items 2.1.1 through
2.1.9 inclusive, are
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satisfactory to Vendor with Vendor to give written notice to Purchaser
within this interval of its intention to proceed or not to proceed.
4.2 Due Diligence by Purchaser. Purchaser shall have one hundred eighty
(180) days after the Effective Date within which to satisfy or waive
Items 2.2.1 through 2.2.5 inclusive and shall have the interval of 30
days in item 4.1 hereof to satisfy itself that Vendor's satisfaction
or waiver of Items 2.1.1 though 2.1.9 inclusive are satisfactory to
Purchaser with Purchaser to give written notice to Vendor within this
interval of its intention to proceed or not to proceed.
4.3 Closing. The parties shall have an insured closing with the title
company who supplied the title work under Item 2.2.1 and share equally
in the cost for same, which closing shall occur at a time and place
satisfactory to Vendor and Purchaser but no later than twenty (20)
days after Item 4.1 is satisfied, that Vendor and Purchaser agree to
proceed to closing.
4.4 Closing Documents. Vendor, at Vendor's cost, shall execute and deliver
to Purchaser at closing the following for the Real Estate:
4.4.1. A special warranty deed;
4.4.2. A vendor's affidavit satisfactory to Purchaser and to the title
company;
4.4.3. An auditor's disclosure form;
4.4.4. A non-foreign affidavit;
4.4.5. The Deed Restriction agreed to as mentioned in Item 2.1.5 in a
form capable of recordation.
4.5 Possession. Possession of the Real Estate shall be given to Purchaser
at closing free and clear of any possessor rights.
5. Taxes and Assessments. Vendor and Purchaser shall seek to breakout the tax
component of Lot 1 from the taxes for the entire complex and Purchaser
shall assume and pay all such real estate taxes due and payable for such
breakout tax component after closing and shall pay all assessments for
municipal improvements relative to Lot 1 which became a lien after closing.
Default. If Vendor, without legal cause, fails to perform or breaches any
of the covenants, representations, terms or conditions of this Agreement,
Vendor shall return all the Xxxxxxx Money to Purchaser. and Purchaser may
further immediately pursue any rights or remedies available at law or in
equity, including specific performance.
If Purchaser, without legal cause, fails to perform any of the covenants,
terms or conditions of the Agreement, the Xxxxxxx Money shall be retained
by Vendor, and Vendor may further immediately pursue any rights or remedies
available at law or in equity, including specific performance.
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6. Attorney's Fees. Any signatory to this Agreement who is the prevailing
party in any legal or equitable proceeding against any other signatory
brought under, or with relation to, this Agreement or transaction shall be
additionally entitled to recover court costs and reasonable attorney's fees
from the non-prevailing party.
7. Miscellaneous.
7.1 Representations Regarding Brokers. Vendor, if this transaction closes,
shall pay any commission to Duke & Company Realty, Inc. (Vendor's
Agent). Vendor and Purchaser each represent and warrant to the other
that neither has employed, retained or consulted any other broker or
agent, in carrying on the negotiations in connection with this
Agreement or the purchase and sale described herein, and Vendor and
Purchaser shall each indemnify and hold the other harmless from and
against any and all claims, demands, causes of action, debts,
liabilities, judgments and damages (including costs and reasonable
attorneys' fees incurred in connection with the enforcement of this
indemnity) which may be asserted or recovered against the indemnitor's
breach of this representation and warranty. The indemnity in this
paragraph shall survive the closing or any termination of this
Agreement.
7.2 Notices. Any notice, consent, approval, waiver, and election which any
party shall be required or permitted to make or give under this
Agreement shall be in writing and shall be deemed to have been
sufficiently made or given if delivered by hand, courier, facsimile
(with confirmation of receipt), overnight delivery service (such as
Federal Express or United Parcel Service), or certified mail, return
receipt requested, and addressed to the respective parties at the
address set forth below:
To Purchaser: Mutual Savings Bank
Attn: Xxxxx X. Xxxxxx
00 X. Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
To Vendor: Attn: Xxxxxxx X. Xxxx
South Grove Landing, LLC
0000 X Xxxx 000 Xxxx
Xxxxxxxxxxxx, XX 00000
Such notices shall be deemed received upon delivery when delivered by
hand, by courier or by overnight delivery service; and upon receipt
when mailed as provided above. Each notice given by facsimile shall be
deemed given on the date shown on the sender's copy thereof or
confirmation notice showing date, time of transmission and number of
pages transmitted. Refusal to accept, or inability to deliver because
of changed address or facsimile number of which no notice was given in
the manner specified herein, shall be deemed received on the date of
such refusal of delivery or inability to deliver.
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Either party may, from time to time, change the address in the manner specified
herein to which notices shall be given by dispatch of notice of such change to
the other party in the manner specified herein, except that no party may change
its address to other than a street address. Any notice given that does not
conform to this paragraph shall be effective only upon receipt.
7.3 Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, Vendor and Purchaser and their
respective successor and assigns.
7.4 General. The headings of the paragraphs set forth herein are for
convenience only, and shall not affect the meanings or interpretations
of the contents thereof. The use herein of the singular term shall
include the plural, and the use of the masculine, feminine or neuter
gender shall include all other where appropriate. The term "Agreement"
as used herein means the contract arising between the parties on the
terms of this document after acceptance and execution by Vendor.
7.5 Entire Agreement. This Agreement, with Exhibits attached, constitutes
the entire agreement between Vendor and Purchaser with respect to the
subject matter hereof, and there are no other agreements, promises,
covenants, terms, provisions, conditions, undertakings, or
understandings, either oral or written, between them concerning the
Real Estate other than those herein set forth. No subsequent
alteration, amendment, change, deletion or addition to this Agreement
shall be binding upon Vendor or Purchaser unless made in writing and
signed by both Vendor and Purchaser.
7.6 Governing Law. This Agreement shall be constructed in accordance with
the laws of the State of Indiana.
7.7 Non-Waiver. No delay, forbearance or neglect by Purchaser in the
enforcement of any of the conditions of this Agreement or any of the
Purchaser's rights or remedies hereunder shall constitute or be
construed as a waiver thereof. No waiver of any of the conditions of
this Agreement by Purchaser shall be effective unless expressly and
affirmatively made and given by Purchaser in writing.
7.8 Unenforceable or Inapplicable Provisions. If any provision hereof is
for any reason determined by a court of competent jurisdiction to be
unenforceable, the other provisions hereof will remain in full force
and effect in the same manner as if such unenforceable provision had
never been included herein.
7.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all
of which shall collectively constitute a single agreement.
7.10 Construction. Vendor and Purchaser acknowledge that each has
participated in the arms-length negotiation of this Agreement and the
drafting hereof. Both Vendor and Purchaser has had this Agreement
reviewed and approved by each of
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their respective legal counsel, and that the terms of this Agreement
shall not be construed against either as the draftsman hereof.
7.11 Business Days. If the final day of any period or any date of
performance under this Agreement falls on a Saturday, Sunday or legal
holiday, then the final day of the period or the date of performance
shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
7.12 Assignment. Purchaser may not assign this Agreement without Vendor's
written consent, which will not be unreasonably withheld.
7.13 Time of Essence. Time shall be of the essence of this Agreement and in
effecting the closing.
7.14 Facsimile Documents. The parties hereto agree that documents
transmitted by facsimile transmission shall be deemed to be written
instruments, and shall be binding on the parties executing and
delivering such documents.
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The undersigned, being duly authorized to execute this "Agreement" and bind
their entity party, execute this "Agreement" with the date of execution noted
but with the Effective Date of this "Agreement" to be the last date of
execution. This Agreement shall be null and void unless the Effective Date is on
or before 1:00 p.m. of January 24, 2005.
MUTUAL SAVINGS BANK SOUTH GROVE LANDING, LLC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
-------------------------------- ---------------------------------
Printed: Xxxxx X. Xxxxxx Printed: Xxxxxxx X. Xxxx
Title: EVP/COO Title: Manager
Date and Time: 1/21/05 2:30 p.m. Date and Time: 1/24/05 10:00 a.m.
Vendors Purchaser
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EXHIBIT A
LEGAL DESCRIPTION
Lot #1 of South Grove Commercial Subdivision Xxxxxxx County, Indiana.
Subject to final plat approval.
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EXHIBIT B
SOUTH GROVE LANDING
COMMERCIAL SUBDIVISION
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