Exhibit 10.1
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PURCHASE AGREEMENT
1. PARTIES: XXXXXX X. XXXXX, INC., an Indiana Corporation, ("Seller") agrees
to sell and convey to MUTUAL SAVINGS BANK, or its nominee ("Buyer"), and
Buyer agrees to buy from Seller, the following property for the
consideration and upon and subject to the terms, provisions and conditions
hereinafter set forth (the "Contract" or "Agreement").
2. PROPERTY: The property which is shown on Exhibit A and described on Exhibit
B, each attached hereto and incorporated herein, being a tract of land
owned by Seller located in the Wildcat Commercial Subdivision in Xxxxxx
County, Indiana and containing approximately 1.67+- acres and all
privileges, and appurtenances pertaining thereto, including any right,
title and interest of Seller in and to easements, adjacent streets, alleys
or rights-of-way (collectively called "Property"). Further, Seller agrees
to design, construct, and install for Buyer's use adequate drainage
improvements, including piping and/or xxxxxx, as well as easements to
off-site drainage improvements (such as detention/retention ponds), to
ensure Buyer's ability to comply with all applicable governmental
regulations relative to drainage, and any such improvements made, as well
as Seller's rights to easements across adjoining land, are included within
the scope of the term "Property" for purposes of this agreement.
3. PRICE: The purchase price (the "Purchase Price") shall be Two Hundred Fifty
Thousand Dollars ($250,000.00) per acre as determined under Section 10. The
Purchase Price payable at Closing shall be payable in accordance with the
terms and conditions stated in this Contract.
4. XXXXXXX MONEY: Ten Thousand Dollars ($10,000.00) to be applied to the
Purchase Price at the Closing will be deposited as Xxxxxxx Money with
Midwest Title Corporation, as Escrow Agent, within Three (3) business days
of execution of the Contract by Seller and delivery to Buyer. If this
Contract is terminated by the Buyer, as specified herein, the Xxxxxxx Money
shall be returned to the Buyer.
5. CLOSING: The closing of the sale of the Property (the "Closing") shall take
place at the offices of Escrow Agent in Indianapolis, Indiana at a time
chosen by Buyer on or before the expiration of the Inspections period or
Ten Days (10) days following the satisfaction of the contingencies in
Section 20, whichever comes first.
6. POSSESSION: The possession of the Property shall be delivered to Buyer at
Closing in its present condition, ordinary wear and tear excepted. Seller
agrees to maintain the Property in good condition until possession is
delivered to Buyer.
7. BUYER RESERVES THE RIGHT TO HAVE THE PROPERTY INSPECTED. All inspections
shall be made by Buyer, at its expense, within Three (3) Months of
execution of this Contract by Seller (the "Inspection Period"). Buyer shall
have the Inspection Period to conduct such studies, inspections and other
examinations (collectively "Examinations") and
as it may in its sole judgment desire, to determine the suitability of the
Property for development of a Mutual Savings Bank branch. For this purpose,
Seller agrees that Buyer and its agents and representatives may come on the
Property, provided that Buyer shall be responsible for any damage to the
Property done by Buyer, its representatives and agents, while conducting
any such tests, studies or Examinations. Seller agrees to execute any
documents reasonably requested by Buyer for any approvals or consents
required by Buyer. Buyer shall have the right at any time within the
Initial Inspection Period to terminate this Agreement pursuant to this
Section 7, and upon such termination, the Xxxxxxx Money shall be returned
to the Buyer. Buyer shall have the right to extend the Inspection Period
beyond the initial Three (3) Month period for an additional One (1) Month
period by depositing, with Escrow Agent, an additional sum of Five Thousand
Dollars ($5,000.00). After the Initial Three (3) Month Inspection Period
all Xxxxxxx Money shall be non-refundable to Buyer but creditable toward
the purchase price. Buyer shall have the right at any time during the
"Inspection Period" to terminate this Agreement, pursuant to Section 7, but
after the Initial Three (3) Month Inspection Period all Xxxxxxx Money shall
become non-refundable to Buyer but creditable toward the purchase price.
8. TAXES. All taxes for the Property assessed for any prior calendar year and
remaining unpaid, shall be paid by Seller, and all taxes for such Property
assessed for the current calendar year shall be prorated between Seller and
Buyer on a calendar year basis as of the day immediately prior to each
Closing Date. If the tax rate for taxes assessed in the current year has
not been determined at the closing of the transaction, said rate shall be
assumed to be the same as the prior year for the purpose of such proration
and credit for due but unpaid taxes.
9. INSURANCE: Insurance shall be canceled as of the date of Closing and the
Buyer shall provide its own insurance.
10. SURVEY: Seller shall provide Buyer a staked survey, which survey shall
comply with current standard for ALTA surveys, and shall reflect whether
the Property is located in a designated flood zone area and the gross
acreage, which acreage shall be used to determine the Purchase Price.
Seller shall deliver one print of the survey to Buyer within the Inspection
Period.
11. TITLE AND SURVEY APPROVAL: Buyer shall obtain, at Seller's expense, a
Commitment for Title Insurance (the "Commitment") and legible copies of all
recorded instruments affecting the Property and recited as exceptions in
the Commitment within 30 days of full execution of the Contract. If Buyer
has an objection to items disclosed in such Commitment or the survey
provided for herein, Buyer shall make written objections to Seller within
fifteen (30) days after receipt of all such instruments and the Survey.
Seller shall have fifteen (30) days from the date such objections are
disclosed to cure the same. Seller agrees to utilize commercially
reasonable efforts to cure such objection, if any. If the objections are
not satisfied within such time period, Buyer may (a) terminate this
Contract and Escrow
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Agent shall return the Xxxxxxx Money to Buyer, or (b) waive the unsatisfied
objections and close the transaction.
12. PRORATIONS AND SPECIAL ASSESSMENTS: Any rents, all other income and
ordinary operating expenses of the Property, including, but not limited to,
public utility charges, shall be prorated as of the day prior to the date
of Closing. Any special assessments applicable to the Property for
municipal improvements previously made or still in progress to benefit the
Property shall be paid by Seller. Buyer will assume and agree to pay all
special assessments for municipal improvements for which construction
commenced after the date of Closing.
13. SALES EXPENSES: Seller and Buyer agree that all of the following sales
expenses are to be paid in cash prior to or at the Closing.
A. SELLER'S EXPENSES: Seller agrees to pay all costs of releasing
existing loans and recording the releases, the closing fee, the costs
of the survey, the Owner's title insurance commitment policy and
endorsements, the broker's fees, and other expenses stipulated to be
paid by Seller under other provisions of this Contract.
B. BUYER'S EXPENSES: Buyer agrees to pay all expenses incident to any
loan and any expenses stipulated to be paid by Buyer under other
provisions of this Contract including development approvals, zoning
expenses and any title endorsements required by Buyer.
14. DEFAULT: If Buyer breaches this Agreement and is in default after the
satisfaction or waiver of the contingencies in Section 20, Seller shall
treat this Agreement as being terminated and receive as its sole remedy the
Xxxxxxx Money as liquidated damages. If Seller breaches this Agreement and
is in default, then the Xxxxxxx Money shall be immediately returned to
Buyer and the Buyer may seek specific performance or any other remedy
provided by law or equity against the Seller.
15. ATTORNEY'S FEES: Any party to this Contract who is the prevailing party in
any legal or equitable proceeding against any other party brought under or
with relation to the Contract or transaction shall be additionally entitled
to recover court costs and reasonable attorney's fees from the
non-prevailing party.
16. ESCROW: The Xxxxxxx Money is deposited with Midwest Title Corporation as
Escrow Agent with the understanding that Escrow Agent (a) is not a party to
this Contract and does not assume or have any liability for performance or
non-performance of any party and (b) before the Escrow Agent has any
obligation to disburse the Xxxxxxx Money in the event of dispute, he has
the right to require from all signatories a written release of liability of
the Escrow Agent, termination of the Contract and authorization to disburse
the Xxxxxxx Money. At the Closing, Xxxxxxx Money shall be applied to the
Purchase Price for the Property.
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17. DUTIES OF BUYER AND SELLER AT CLOSING:
A. At Closing, Seller shall deliver to Buyer, the following:
(1) A duly executed and acknowledged Warranty Deed conveying good and
indefeasible title in fee simple to the Property, free and clear
of any and all liens, encumbrances, conditions, easements,
assessments, reservations and restrictions, except as permitted
herein or approved by Buyer in writing;
(2) A duly executed and acknowledged Vendor's Affidavit in the form
most recently published by the Indianapolis Bar Association;
(3) An executed Disclosure of Sales Information complying with I.C.
6-1.1-5.5;
(4) A certification establishing that no federal income tax is
required to be withheld under the Foreign Investment and Real
Property Tax Act, or to consent to withholding of tax from the
proceeds of sale as required;
(5) Evidence of its authority to sell the Property; and
(6) Execute all other necessary documents reasonably required to
close this transaction.
B. At Closing, Buyer shall perform the following:
(1) Pay the Purchase Price in the form of a certified or cashier's
check or other good funds;
(2) Execute a Disclosure of Sales Information complying with I.C.
6-1.1-5.5;
(3) Evidence of its authority to purchase the Property; and
(4) Execute all other necessary documents reasonably required to
close this transaction.
18. CONDEMNATION: If prior to a Closing, condemnation proceedings are commenced
against any portion of the Property, Buyer may, at its option, terminate
this Contract by written notice to Seller within thirty (30) days after
Buyer is advised of the commencement of condemnation proceedings, or Buyer
shall have the right to appear and defend in such condemnation proceedings,
and any award in condemnation shall, at the Buyer's election, become the
property of Seller and reduce the Purchase Price by the same amount or,
upon
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closing the purchase of Property, shall become the property of Buyer and
the Purchase Price shall not be reduced.
19. CASUALTY LOSS: Risk of loss by damage or destruction to the Property prior
to Closing shall be borne by Seller. In the event any such damage or
destruction is not fully repaired prior to closing, Buyer, at its option,
may either (a) terminate this Contract, or (b) elect to close the
transaction, in which event Seller's right to all insurance proceeds
resulting from such damage or destruction shall be assigned in writing by
Seller to Buyer, and Seller shall reimburse Buyer for any deductible
amount.
20. CONTINGENCIES: The purchase of the Property is subject to the approval of
the Department of Financial Institutions and the Federal Deposit Insurance
Corporation and to the satisfaction or waiver by Buyer that it is
satisfied, within the Three (3) Month Initial Inspection Period or
Additional Inspection Period, of:
(1) all approvals, permits and consents for the development of the
Property (collectively the "Approvals"), including, without
limitation, zoning of the Property, platting, municipal requirements,
IDEM, easements for utilities, including, but not limited to, storm
water, water and sanitary sewer, building permits, all of which shall
be a condition precedent to any obligation or duty of Buyer under this
Contract. Seller shall execute any and all documents, petitions and
other written instruments to assist Buyer in obtaining any such
Approvals;
If the foregoing conditions are not satisfied within the Initial
Inspections Period or waived in writing by Buyer, then Buyer shall have the
right to terminate this Agreement by notice to Seller within the Initial
Inspection Period, and the Xxxxxxx Money shall be returned to the Buyer. If
Buyer makes notification to Seller of its intent to terminate this
Agreement within the Additional Inspection Period then all Xxxxxxx Money
deposits shall be non-refundable to Buyer but applicable to the purchase
price. In the event application for regulatory approval has been filed and
approval is not obtained within said Initial Inspection Period, Seller will
extend Initial Inspection Period for a period not to exceed one hundred
twenty (120) days. An extension of the Initial Inspection Period due to
regulatory issues will not cause the Buyer to provide additional Xxxxxxx
Money or cause any portion of the Xxxxxxx Money to be non-refundable. Buyer
understands that time is of the essence and will take necessary steps to
facilitate and expedite regulatory correspondence.
21. DOCUMENTS FROM SELLER: Seller shall provide Buyer, within Thirty (30) days
of execution of this Contract by Seller, copies of the following if in
Seller's possession or available from third parties:
A. Prior title commitments, surveys and exception documents.
B. A new environmental Phase One report.
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22. PROFESSIONAL FEES: Seller and Buyer represent to each other that the only
broker involved in this transaction is Xxxxxxxxxxx Xxxxxx with Paragon
Commercial Real Estate, LLC. Seller and Buyer shall indemnify each other
from claims of any other third parties claiming a fee or other compensation
for brokerage or other similar services to have been rendered for Seller or
Buyer. Seller shall pay the fee of 4.8% of the total purchase price to
Paragon Commercial Real Estate, LLC.
23. ENTRY ACCESS: Seller agrees to allow buyer two access cuts onto the
property. One cut on the north side and one cut on the west side of the
property. The cut on the west side will be onto the access road constructed
to meet all state and federal specifications by the Buyer. Seller also
agrees to allow Buyer to determine the location of access cuts for said
property. Buyer acknowledges that Seller's approval is of understanding and
agreement only and that Buyer understands all access cuts into the Property
will have to be approved on its primary plat by the City of Indianapolis
and its governing bodies
24. REPRESENTATIONS AND WARRANTIES OF SELLER:
To induce Buyer to execute this Agreement, Seller represents and warrants
to Buyer as follows:
A. Seller has the full right, title, power and authority to enter into
this Agreement and to consummate a sale of the Property, and all
persons whose signatures are necessary to sell the Property have duly
executed this Agreement.
B. No action, suit, claim, arbitration, litigation or other proceedings
is pending or threatened against the Property or any part thereof.
C. Seller has not received any notification from any governmental agency,
authority or any utility, of any pending or threatened assessments on
or against the Property or any part thereof or any proposed increases
in the cost of utility services.
D. Seller will not create, permit or suffer any lien or other encumbrance
to attach to or affect the Property, other than the lien of
non-delinquent real estate taxes.
E. This Agreement and all documents to be executed pursuant hereto by
Seller are and shall be valid and binding upon and enforceable against
Seller in accordance with their respective terms, the transaction
contemplated hereby will not result in a breach of or constitute a
default or permit acceleration of maturity under any mortgage, deed of
trust, loan agreement or other agreement to which Seller or the
Property is subject or by which Seller or the Property is bound.
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F. Seller has good and marketable title to the Property, free and clear
of all liens, security interests, encumbrances, leases, and
restrictions of every kind and description, except the permitted title
exceptions and liens and encumbrances to be released on the Closing
Date.
G. Except for Seller, there are no persons in possession or occupancy of
the Property or any part thereof, nor are there any persons who have
possessory or other rights with respect to the Property or any part
thereof.
H. To Seller's knowledge, no Hazardous Materials (as defined below) have
been used, generated, manufactured, stored, treated, released or
disposed of at, in, on or under the Property in violation of
Environmental Law and there are no soft soils, underground storage
tanks or subsurface materials which would increase the cost to develop
the Property.
I. The term "Hazardous Material" shall mean any substance or material
that is or becomes regulated, defined or designated by any federal,
state or local governmental authority as hazardous, extremely
hazardous, imminently hazardous, dangerous or toxic, or as a
pollutant, contaminant or waste, and shall include, without
limitation, PCBs, asbestos, asbestos containing materials, oil and
petroleum products and byproducts. The term, "Environmental Law" shall
mean all current and future federal, state and local statutes,
regulations, ordinances and rules relating to (1) the emission,
discharge, release or threatened release of a Hazardous Substance into
the air, surface water, groundwater or land; (ii) the manufacturing,
processing, use, generation, treatment, storage, disposal,
transportation, handling, removal, remediation or investigation of a
Hazardous Substance; or (iii) the protection of human health, safety
or the indoor or outdoor environment, including without limitation,
the Clean Air Act, the Federal Water Pollution Control Act, the
Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the
Occupational Safety and Health Act, all amendments thereto, all
regulations promulgated there under, and their state statutory and
regulatory counterparts.
J. Seller knows of no physical characteristics of the property or
impediments that would materially and adversely affect the value of
the property or prevent the Buyer's intended use of the property.
All such representations shall be reaffirmed as being true and correct on
the Closing Date.
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25. MISCELLANEOUS:
A. Any notice required or permitted to be delivered hereunder, shall be
deemed received when personally delivered or sent by United States
mail, postage prepaid, certified and return receipt requested,
addressed to Seller or Buyer, as the case may be, at the address set
forth below the signature of such party hereto.
B. This Contract shall be construed under and in accordance with the laws
of the State of Indiana.
C. This Contract shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
legal representatives, successors, and assigns; however, Buyer may
assign this Contract at closing to an assignee who shall take title to
the Property.
D. This Contract 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.
E. This offer from Buyer shall remain valid until 5:00 p.m. on April 15,
2005, at which time it shall terminate and be of no further force and
effect if acceptance has not been delivered to Buyer at the address
below or to Buyer c/o ________________________________________________
__________________________________________________.
26. 1031 TAX EXCHANGE: Buyer acknowledges that Seller desires to create an IRS
Code Section 1031 Tax-deferred Exchange, and that the Seller's rights and
obligations under this Agreement may be assigned to a qualified
intermediary to facilitate such exchange. Buyer agrees to cooperate with
Seller and the intermediary in a manner necessary to enable Seller to
qualify for said exchange; provided, however, that such cooperation shall
not involve the execution of documents that increase Buyer's obligation or
extend its ability beyond those express obligations and liabilities set
forth herein, and shall not result in any additional cost or liability to
Buyer.
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Mutual Savings Bank
an Indiana Corporation
By: /s/ X. X. Xxxxxx
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Executive Vice President
4/15/05
Address: 00 X. Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
"Buyer"
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ACCEPTED this 30th day of March, 2005.
Xxxxxx X. Xxxxx, Inc.
An Indiana Corporation
By: /s/ Xxxxxx X. Xxxxx
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President
Address: 0000 Xxxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxxxx, XX 00000
"Seller"
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EXHIBIT A (SURVEY)
[GRAPHIC OMITTED]
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EXHIBIT B (LEGAL DESCRIPTION)
SEE BOTTOM OF EXHIBIT A FOR A FULL LEGAL DESCRIPTION
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