Exhibit 10.23
REAL ESTATE PURCHASE AND SALE CONTRACT
THIS REAL ESTATE PURCHASE AND SALE CONTRACT ("Agreement") is made and
entered into this 9th day of June, 2005, by and between MAGNIFI, LLC, an Indiana
limited liability company (referred to herein as "Seller), and TOWER BANK AND
TRUST COMPANY, an Indiana corporation (referred to herein as "Buyer").
PRELIMINARY STATEMENT
Seller is the owner of certain real property and improvements thereon
situated in the County of Xxxxx, State of Indiana, and is willing to sell such
real property to Buyer, and Buyer is willing to purchase such real property and
improvements from Seller, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Definitions. Certain terms used herein are defined in this Section 1; other
terms are defined within the text of this Agreement.
"Closing" shall mean the consummation of the purchase and sale of the Premises
in accordance with the terms of this Agreement upon completion of all conditions
precedent herein required. "Xxxxxxx Money Deposit" shall mean the TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($25,000.00) deposit on the Purchase Price given by
Buyer to Seller, contemporaneously with the execution of this Agreement.
"Premises" shall mean that certain parcel of real property and improvements
thereon located in Xxxxx County, Indiana, as presently identified by legal
description on Exhibit "A" attached hereto and made a part hereof. The full
legal description of the Premises shall be noted on the survey to be provided by
Seller as hereinafter required. Said Premises include all buildings,
improvements, fixtures, tenements, hereditaments and appurtenances belonging or
in any wise appertaining to such real property.
"Purchase Price" shall mean the Purchase Price for the Premises in the aggregate
sum of ONE MILLION TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($1,200,000.00).
"Title Commitment" shall mean the commitment issued by an ALTA approved title
insurance company ("Title Company") selected by Seller and approved by Buyer,
which approval shall not be unreasonably withheld, in which the Title Company
commits itself to issue to Buyer an Owner's Policy of Title Insurance upon
demand in the full amount of the Purchase Price, setting forth the state of the
title to the Premises and subject only to those "permitted exceptions"
hereinafter described.
Purchase and Sale of Property. Subject to the terms, provisions and conditions
set forth herein, Seller hereby agrees to sell the Premises to Buyer, and Buyer
hereby agrees to purchase the Premises from Seller.
Purchase Price for Premises. The Purchase Price for the Premises shall be
payable in the following manner:
Xxxxxxx Money Deposit. Contemporaneously with the execution of this Agreement,
Buyer has deposited with Seller the sum of TWENTY-FIVE THOUSAND AND NO/100
DOLLARS ($25,000.00) as the Xxxxxxx Money Deposit.
Balance of Purchase Price. The balance of the Purchase Price, subject to such
adjustments, credits, deductions and prorations, if any, as herein required,
shall be paid in cash at Closing.
Survey of Premises. Promptly after execution hereof, Buyer may order and
procure, at the expense of Buyer, a boundary survey of the Premises showing the
location, area and dimensions of all improvements, easements, streets, roads,
flood hazard areas and alleys on or abutting said Premises, and providing a
legal description of the Premises with such certifications as Buyer deems
appropriate, including, but not limited to, an ALTA/ACSM certification.
Title to Premises.
State of Title to be Conveyed. At the Closing, Seller shall convey to Buyer, by
a special or limited warranty deed in which Seller warrants as to its own acts
affecting title, fee simple title to the Premises, free from all liens,
encumbrances, restrictions, rights-of-way and other matters, excepting only the
"permitted exceptions" described as follows: (i) the lien of general real estate
taxes not yet due and payable, subject to proration of taxes as hereinafter
provided; (ii) liens or encumbrances of a definite or ascertainable amount and
which will be paid and discharged in full by or for Seller at or prior to the
Closing; (iii) the easements, restrictions and covenants described in Section
14(a) of this Agreement; and (iv) zoning ordinances, easements, visible or of
record, matters disclosed by the survey, and other restrictions and limitations
of record
2
provided the same do not prevent or materially interfere with Buyer's
intended use of the Premises.
Title Insurance Commitment and Policy. Promptly after the execution hereof,
Seller shall order and procure the Title Commitment, at the expense and for the
account of Seller. At the Closing, a Policy of Title Insurance or an endorsement
to the Title Commitment shall be issued to Buyer insuring Buyer's fee simple
interest in the Premises in the state required by Section 5(a) above, and
subject only to the printed exceptions therein contained and the "permitted
exceptions." Seller shall pay for all charges and costs of such Title Insurance
Policy.
Objections to State of Title. If title to the Premises is not in the state
required by Subsection 5(a) above, Buyer shall give written notice to Seller
within ten (10) business days after the date it receives the Title Commitment
and survey, specifying its objection(s) to the state of title to the Premises.
Seller shall thereupon have a period of ten (10) days in which it shall use its
best efforts to remedy the objection(s) or to induce the Title Company to issue
an endorsement to the Title Commitment insuring over or removing such
objection(s). If Buyer's objection(s) to the state of title to the Premises are
not remedied by Seller within such ten (10) day period, then Buyer shall have
the right, within ten (10) days thereafter, to give written notice to Seller
that Buyer waives such title defects or objections and elects to proceed to
acquire the Premises without any abatement of the Purchase Price and to take
title to the Premises subject to such defects or objections; otherwise, this
Agreement shall be automatically cancelled and rescinded, the Xxxxxxx Money
Deposit shall be refunded to Buyer by the Seller, and the rights and obligations
of the parties hereto shall thereupon cease.
Seller's Covenants, Warranties and Representations. Seller hereby covenants,
warrants and represents as follows:
That Seller owns fee simple marketable title to the Premises, has the authority
to enter into and consummate this Agreement and the transaction herein intended.
That Seller shall promptly complete and perform those conditions to be performed
by Seller which are required under the terms of this Agreement.
Proration of Real Estate Taxes. Seller shall pay all real property taxes and any
general and/or special assessments which are due and payable, if any, on or
before the date of the Closing, or which otherwise constitute a lien upon the
Premises as of the date of the Closing. Buyer shall assume and pay all
subsequent real property taxes and any general and/or special assessments which
are due and payable after the date of Closing.
Closing.
Closing shall take place no later than thirty (30) days after Buyer has obtained
the survey and Title Commitment in the state herein required, unless extended in
writing by mutual agreement of the parties hereto. The Closing shall occur at
the offices of the Title Company, or at such other place as agreed by Buyer and
Seller. Buyer and Seller agree to deposit with Title Company not later than the
date of the Closing all executed documents required in connection with this
transaction, including such documents as requested by the Title Company issuing
the Title Policy. Upon receipt of all necessary documents, receipt of the
Purchase Price by Seller, and when the Title Company is in a position to issue
to Buyer a Policy of Title Insurance, Title Company shall on the date of the
Closing, upon instructions from Buyer and Seller, cause the deed to the Premises
and any other necessary or appropriate instruments to be filed for record. The
Xxxxxxx Money Deposit shall be applied toward the Purchase Price at Closing.
Seller hereby agrees that it shall be solely liable for and shall pay for: (i)
the issuance of the Title Commitment required under Subsection 5(b) hereof; and
(ii) the premium charged for the
3
issuance of said ALTA owner's title policy issued pursuant to said commitment.
Buyer hereby agrees that it shall be solely liable for and shall pay for the
cost of the survey described in Section 4 hereof, its attorney and consultant
fees and all other fees and expenses incurred by Buyer to acquire the Premises
not specifically allocated to Seller by this Agreement. Each party shall be
responsible for its other costs and expenses in accordance with the obligations
or conditions to be performed by each respective party hereto. At the time of
Closing, Seller and Buyer shall execute and deliver a closing statement setting
forth said Purchase Price, with such closing adjustments thereto as may be
applicable.
Remedies Upon Default. In the event Buyer breaches or defaults under any of the
terms of this Agreement, Seller shall be entitled to retain the Xxxxxxx Money
Deposit as its sole remedy at law or in equity. In the event Seller breaches or
defaults under any of the terms of this Agreement, Buyer shall have the right to
terminate this Agreement and receive a refund of the Xxxxxxx Money Deposit or,
in the alternative, Buyer shall have the right to compel specific performance of
this Agreement and the right to recover Buyer's attorney fees and court costs
incurred in a suit in which Buyer receives an order to compel specific
performance of this Agreement.
Notices. All notices, elections, requests and other communications hereunder
shall be in writing and shall be deemed sufficiently given when personally
delivered or when deposited in the United mail, postage prepaid, certified or
registered, or when delivered to a nationally recognized overnight courier
service with guaranteed next business day delivery and addressed as follows (or
to such other person, or to such other address, of which any party hereto shall
have given written notice as provided herein):
IF TO SELLER: MagniFI LLC
0000 Xxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
IF TO BUYER: Tower Bank and Trust Company
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Brokerage Commission. Seller and Buyer each warrant and represent that there are
no finders or brokers entitled to fees or commissions which may be due from the
introduction of the Seller and Buyer and/or the purchase and sale of the
Premises.
Eminent Domain. In the event that, prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened claim, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer, and Buyer
shall have the right to terminate its obligations under this Agreement by
delivering notice thereof to Seller within ten (10) days after receiving notice
from Seller of such condemnation or taking, and thereupon the Xxxxxxx Money
Deposit shall be refunded to Buyer and the rights and obligations of the parties
hereto shall cease. If Buyer shall not elect to terminate this Agreement
pursuant to this Section 12, the parties shall proceed with the Closing in
accordance with the terms hereof without abatement of the Purchase Price, but
all proceeds of any condemnation award shall be payable solely to Buyer, and
Seller shall have no interest therein.
Indiana Responsible Property Transfer Law. Buyer and Seller acknowledge that the
transactions contemplated by this Agreement may be subject to the provisions of
the Indiana Responsible
4
Property Transfer Law (Ind. Code 13-25-3-1, et seq.). Seller agrees that it
shall either (a) comply with the provisions of the Indiana Responsible Property
Transfer Law and provide the Buyer and Buyer's Lender, if any, with a
"disclosure document" as and when required by the Indiana Responsible Property
Transfer Law, or (b) provide the Buyer with a certification on or before Closing
that the transaction contemplated by this Agreement is not subject to the
provisions of the Indiana Responsible Property Transfer Law.
Miscellaneous.
Tower Bank Declaration. The Premises shall be conveyed to Buyer from Seller
subject to the Tower Park Declaration of Easements, Covenants and Restrictions
attached hereto as Exhibit B.
Agreement Binding. This Agreement shall be binding upon and shall inure to the
benefit of the Seller and Buyer and their respective successors and assigns.
Headings and Captions. The several headings and captions of the Sections and
Subsections used herein are for convenience or reference only and shall, in no
way, be deemed to limit, define or restrict the substantive provisions of this
Agreement.
Entire Agreement. This Agreement constitutes the entire agreement of Buyer and
Seller with respect to the purchase and sale of the Premises superseding any
prior or contemporaneous agreement with respect thereto. No amendment or
modification of this Agreement shall be binding upon the parties unless made in
writing and signed by both Seller and Buyer.
Governing Law. This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Indiana.
Execution of Agreement. This Agreement has been executed by Buyer and delivered
to Seller, this 9th day of June, 2005. Unless an original of this Agreement,
fully executed by the Seller hereof, has been delivered to Buyer on or before
11:59 p.m., June 13th , 2005, this Agreement shall be null and void, without
liability of any type or nature to Buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the day, month and year set forth below.
5
Executed by Buyer this 9th day of June, 2005.
TOWER BANK AND TRUST COMPANY,
an Indiana corporation
By:
--------------------------------------------------
Printed:
------------------------------------
Its:
-------------------------------------------------
"Buyer"
Accepted and executed by Seller this 13th day of June, 2005.
MAGNIFI LLC,
an Indiana limited liability company
By:
--------------------------------------------------
Printed:
------------------------------------
Its:
-------------------------------------------------
"Seller"
6
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
Lot number 49 and lot number 50 except the east 70 feet of said lot number 50 in
Liberty Garden Addition to the City of Fort Xxxxx, as recorded in Plat Record 8,
page 61.
EXHIBIT B
TOWER PARK DECLARATION OF
EASEMENTS, RESTRICTIONS AND COVENANTS
