PURCHASE AND SALE AGREEMENT
Exhibit 99.3
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), made and entered into effective this day of November, 2016 (the “Effective Date”), by and between ONB CTL PORTFOLIO LANDLORD #5, LLC (the “Seller”), and OLD NATIONAL BANK, a national banking association (the “Purchaser”).
RECITALS:
A. Seller the owner of eight (8) parcels of real estate and improvements thereon which are identified on Exhibit “A”, attached hereto (singularly a “Parcel” and collectively the “Parcels” or “Property”); and
B. In consideration of the sums set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller hereby agrees to sell and assign to the Purchaser and Purchaser hereby agrees to purchase from the Seller, subject to the terms and conditions herein, the Property.
NOW, THEREFORE, the Seller and Purchaser agree that the purchase and sale of the Property shall be upon the following terms and conditions:
1. PURCHASE PRICE. Purchaser shall pay to Seller the total sum of Thirty-two Million Nine Hundred Thirty-eight Thousand Two Hundred Dollars ($32,938,200.00) (the “Purchase Price”). Seller and Purchaser agree that the Purchase Price shall be allocated to each Parcel as shown under the term “Purchase Price” on Exhibit “A”, attached hereto, provided, however, that Purchaser may, on not less than seven (7) days’ advance notice to Seller reasonably reallocate the Purchase Price between the Parcels and the Other Property (as defined in Section 10(d)) to reflect the values determined in the appraisal (as set forth in Section 10(e) of this Agreement), provided that no reallocation shall change the aggregate Purchase Price of the Property set forth above. The Purchase Price shall be paid as follows:
(i) Not later than two (2) business days after the Effective Date, Purchaser shall deliver to Xxxxx Title Company (the “Escrow Agent”) Two Hundred Thousand Dollars ($200,000.00) (the “Deposit”) in Current Funds, to be held by the Escrow Agent in escrow to be applied and disposed of by the Escrow Agent as is provided in this Agreement. If Purchaser fails to pay the Deposit to the Escrow Agent as herein provided, Seller shall be entitled to declare a default under this Agreement, whereupon this Agreement shall be terminated and of no further force or effect. Seller shall have the right, notwithstanding, to proceed against the Purchaser for the Deposit as and for liquidated damages. The Deposit shall be applied against the Purchase Price at Closing. As used herein, the term “Current Funds” shall mean wire transfers, certified funds or a cashier’s check in the form acceptable to the Escrow Agent that would permit the Escrow Agent to immediately disburse or deposit such funds. The Deposit shall be held and disbursed by the Escrow Agent as more fully set forth in this Agreement and in the Escrow Agreement annexed hereto as Exhibit “B” (“Escrow Agreement”). The risk of loss with respect to the Deposit shall be with Purchaser.
(ii) The balance of the Purchase Price shall be deposited into and held by the Escrow Agent in an escrow account with Old National Bank at the time of Closing. Upon satisfaction or completion of all closing conditions and deliveries, the parties shall direct the Escrow Agent to immediately record and deliver the closing documents to the appropriate parties and make disbursements according to the closing statement executed by Seller and Purchaser.
2. CLOSING. The closing of the transaction contemplated herein (the “Closing”) shall take place on a date mutually acceptable to Seller and Purchaser; provided, however, in no event shall the Closing be later than December 30, 2016 (the “Outside Closing Date”). In the event the parties fail to agree on a date of Closing, Closing shall occur at 11:00 a.m. (CST) on the Outside Closing Date. The date of Closing shall hereinafter be referred to as the “Closing Date”. The documents required to be delivered hereunder shall be delivered by Seller and Purchaser into escrow with Xxxxx Title Company as agent for Fidelity National Title Insurance Company (the “Title Company”), 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 on or prior to the Closing Date.
3. TITLE TO PROPERTY/DUE DILIGENCE MATERIALS.
(a) Seller shall, within two (2) business days following the Effective Date, deliver to Purchaser (or cause to be delivered to Purchaser) copies of the following:
(i) The Title Insurance Policy which was delivered to Seller in connection with the purchase of each Parcel (each an “Existing Title Policy” and collectively, the “Existing Title Policies”);
(ii) Any Survey regarding the Property in Seller’s possession (the “Existing Surveys”); and
(iii) All existing environmental reports in Seller’s possession relating to any of the Parcels (each an “Existing Environmental Report” and collectively, the “Existing Environmental Reports”).
Within twenty (20) days after the Effective Date, Purchaser shall obtain a preliminary commitment for owners’ policies of title insurance for each Parcel issued by the Escrow Agent, as agent for the Title Company, to a date not earlier than the Effective Date, together with copies of all documents shown as exceptions or requirements therein (collectively, the “Commitments”). The cost of preparing the Commitments and any owner’s and lender’s (if any) policy of title insurance (the “Title Policy”) shall be borne entirely by Purchaser.
(b) Purchaser shall have five (5) business days following receipt of all of the Commitments to cause each such Commitment to be examined by its attorneys and, within such period of time, to the extent that the attorneys for Purchaser shall have objections to or note defects in the title covered by such Commitment which are not Permitted Exceptions (as hereinafter defined), such objections or defects shall be designated in writing (the “Title Objections Notice”) and furnished to Seller. Purchaser acknowledges and agrees that Purchaser’s failure to timely deliver a Title Objection Notice to Seller shall constitute Purchaser’s irrevocable acceptance of the Commitments and Purchaser shall be deemed to have unconditionally waived any right to object to any matters set forth therein. If, after giving such notice to Seller, Purchaser learns, through continuation reports or otherwise, of any new title defect(s) which Purchaser claims are not Permitted Exceptions, Purchaser shall give notice thereof to Seller promptly after the date Purchaser learns of same. Notwithstanding anything to the contrary contained herein, Seller shall, on or prior to the Closing, pay, discharge or remove of record or cause to be paid, discharged or removed of record, at Seller’s sole cost and expense, all of the following items: (a) Voluntary Liens (as hereinafter defined), and (b) other liens encumbering the Property (including judgments and federal, state and municipal tax liens) that do not constitute Permitted Exceptions which are in liquidated amounts and which may be satisfied solely by the payment of money (including the preparation or filing of appropriate satisfaction instruments in connection therewith). Seller may, in lieu of making any payment, discharge or remove of record of any encumbrance that Seller is obligated to cause to be released or cured in accordance with this Section 3(b), enter into an escrow agreement that will enable the Title Company to insure that such objections shall not be enforced against the Property. The term “Voluntary Liens” as used herein shall mean liens and other encumbrances (other than Permitted Exceptions) which Seller has knowingly and intentionally suffered or allowed to be placed on the Property, including, without limitation, mortgages and mechanics’ liens which arise from work performed by or on behalf of Seller, judgments, federal, state and municipal tax liens, but shall expressly exclude mechanics’ liens which arise from work performed by or on behalf of Purchaser or judgments, federal, state and municipal tax liens arising out of any act or failure to act by Purchaser; provided, however, that any items which are the responsibility of the Purchaser as tenant under the Lease (as defined below) shall not be considered a Voluntary Lien. If the Title Company is not willing to insure title as set forth above, Seller may cause title to be insured by any other reputable title insurer licensed to do business in the state where the Property is located, and Purchaser shall pay the premium for such coverage at standard rates.
(c) If, at the Closing, Seller fails or is unable to convey to Purchaser title to the Property subject to and in accordance with the provisions of this Agreement, Purchaser may, in its sole discretion, (i) terminate this Agreement by providing written termination notice to Seller (a “Termination Notice”) at any time on or before the Closing Date; or (ii) waive such objections or defects and proceed to Closing without any abatement or reduction in the Purchase Price, or any credit or allowance of any kind, or any claim or right of action against Seller for damages or otherwise. If Purchaser timely delivers the Termination Notice to Seller, the Deposit shall be refunded to Purchaser, this Agreement shall terminate and, except as otherwise expressly provided herein to the contrary, neither party shall have any further rights or obligations hereunder, except for such matters as are set forth in this Agreement to survive Closing or the earlier termination of this Agreement.
(d) Upon any termination of this Agreement pursuant to this Section 3, Purchaser shall be entitled only to a return of the Deposit, and Seller shall have no obligation or liability to Purchaser for any damages that Purchaser may have sustained by reason of Seller’s inability to convey title in accordance with the terms and conditions of this Agreement.
(e) The Property is sold and shall be conveyed subject to the following (the “Permitted Exceptions”):
(i) any exceptions listed in the Commitments which Seller has not agreed to cure or remove pursuant to this Section 3;
(ii) the lien of current and future real estate taxes and assessments;
(iii) easements, covenants and restrictions of record that were either (1) heretofore agreed to by Purchaser or any subsidiary or affiliate of Purchaser, or (2) which do not (x) prohibit the present structure or the continuing use and occupancy of the present structure (y) render title to the Property uninsurable at regular rates without the payment of additional premiums; or (z) impose any financial obligation upon Purchaser;
(iv) all building setback lines, public utility easements, notices, dedications and other information and matters set forth upon any instrument, survey or recorded plat applicable to the Parcel which are not listed in any Title Objection Notice;
(v) any possible charges or liens for water and sewer service, and/or connection charges levied by any governmental agency or public utility payable subsequent to date of Closing;
(vi) all building, subdivision, zoning or other ordinance, rule or regulation of the state where the Parcel is located or any political subdivision thereof affecting the Parcel, which are not listed in any Title Objection Notice;
(vii) any prior mineral reservation, conveyance or lease of record be the same oil, gas, coal or other minerals of whatsoever kind or nature, which are not listed in any Title Objection Notice; provided, however, Seller shall convey to Purchaser all of Seller’s right, title and interest in the mineral estate;
(viii) any state of facts which would be shown on or by an accurate current survey of the Property, and such state of facts personal inspections of the Property may reveal; and
(ix) standard conditions and exceptions to title contained in the form of a title policy or “marked-up” title commitment employed by the Title Company.
4. ONB LEASE TERMINATIONS. Each Parcel is subject to a written lease (the “Lease”) by and between the Seller, as landlord, and Purchaser, as tenant. In addition, each of the obligations of Purchaser under the Lease is guaranteed by Old National Bancorp (“Bancorp”) under a Lease Guaranty (each a “Lease Guaranty”). As a condition to Closing, the parties agree they shall, at Closing, enter into a lease termination agreement in a form substantially similar to the form attached hereto as Exhibit “C” (“Lease Termination Agreement”) which terminates of record (a) the Lease between the Seller and Purchaser; and (b) the Lease Guaranty.
5. CLOSING DOCUMENTS.
(a) At the Closing, Seller shall deliver, or cause to be duly executed, acknowledged (if required) and delivered, to the Title Company the following with respect to the Parcels being sold by Seller pursuant hereto:
(i) A special or limited warranty deed containing a legal description of the Parcel being sold as set forth in Purchaser’s applicable Commitment subject only to the Permitted Exceptions;
(ii) A standard form vendor’s affidavit signed by Seller containing such statements of fact by Seller or to Seller’s actual knowledge, relating to acts taken by such Seller or any affiliate of such Seller with respect to the Parcel being conveyed by such Seller, as may be reasonably required by the Title Company for Purchaser to obtain the Title Policy for the Parcel containing no exceptions except the Permitted Exceptions and otherwise sufficient for the Title Company to provide “gap” coverage.
(iii) The Lease Termination Agreement executed by Seller;
(iv) With respect to each Parcel in Indiana, a sales disclosure form;
(v) With respect to each Parcel in Kentucky, a consideration certificate;
(vi) A non-foreign affidavit within the meaning of Section 1445 of the Internal Revenue Code and Regulations promulgated therewith;
(vii) Evidence, which is reasonably satisfactory to the Title Company, (a) authorizing the sale of the Property by Seller; and (b) authorizing the execution, delivery and performance of all documents contemplated hereby by Seller that is a record owner of the Parcel;
(viii) A certificate stating that all representations, warranties and covenants of Seller set forth herein remain true and correct in all material respects at and as of the Closing; and
(ix) All other agreements, documents or instruments required under the terms of this Agreement to be executed and/or delivered by Seller or reasonably necessary to effectuate the transaction contemplated hereunder, provided such documents are consistent with Seller’s express obligations under this Agreement.
Prior to the Closing Date, risk of loss shall be borne between Seller and Purchaser as more fully set forth in the Lease. This provision shall supersede any contrary provision of applicable law.
(b) At the Closing, the Purchaser shall deliver, or cause to be duly executed, acknowledged (if required) and delivered, to the Title Company, the following:
(i) Cash or other immediately available funds for (x) the Purchase Price payable at Closing (subject to application of the Deposit in accordance with the terms of this Agreement) for the Parcels in accordance with Section 1 hereof, and (y) for the payment of all other sums due from Purchaser in accordance with this Agreement;
(ii) With respect to each Parcel in Indiana, a sales disclosure document as required by Indiana law;
(iii) With respect to each Parcel in Kentucky, a consideration certificate;
(iv) The Lease Termination Agreement;
(v) Evidence which is reasonably acceptable to Seller and the Title Company authorizing the purchase of the Property by Purchaser; and
(vi) Such other certificates, instruments, papers or documents as Seller may reasonably request.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Seller represents, warrants to Purchaser as follows:
(a) Seller is a limited liability company organized, validly existing and in good standing under the laws of the State of Delaware and, if required, authorized to transact business in the State of Indiana and the Commonwealth of Kentucky;
(b) This Agreement and all instruments required hereby to be executed and delivered to Purchaser by Seller are, or when delivered will be, the legal, valid and binding obligations of such Seller;
(c) Seller has full power and authority to execute and deliver this Agreement and all related documents and to carry out the transactions contemplated herein, and this Agreement and all instruments and documents delivered pursuant hereto at the Closing shall be valid and binding documents enforceable against each of the Seller in accordance with their respective terms;
(d) The execution of this Agreement and the consummation of the transactions contemplated herein do not conflict with or violate any provision of any agreement, instrument, law or regulation to which Seller is a party or by which Seller’s properties are bound;
(e) No other approval or authorization of this Agreement or any other agreements to be entered into in connection with the transactions contemplated hereby are required by law or otherwise in order to make this Agreement or any other agreements entered into in connection with the transactions contemplated herein binding upon Seller;
(f) To the best of each Seller’s knowledge, Seller is the owner of and has insurable title to the Parcel, it will be conveying to Purchaser hereunder, subject only to the Permitted Exceptions;
(g) To the best of Seller’s knowledge, there are no judgments existing, nor suits, actions or proceedings pending or threatened in any court which have any material impact against Seller or the Property; and
(h) Seller is not a “foreign persons” within the meaning of Section 1445 of the Internal Revenue Code and the Regulations promulgated in connection therewith, and is, therefore, exempt from withholding requirements of said Section.
All of the foregoing representations and warranties shall be deemed to be true and correct as of the date of Closing and shall survive Closing for a period of one hundred eighty (180) days.
7. COVENANTS OF SELLER. To and including the Closing, Seller hereby covenants and agrees to the following with respect to the Property being sold by Seller:
(a) Seller shall not commit any physical waste of the Property and shall comply with its obligations under the Lease; and
(b) Seller shall furnish to Purchaser and its representatives all information in its possession concerning the Property which Purchaser may reasonably request.
8. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Purchaser represents and warrants to Seller as follows:
(a) Purchaser is a national banking association organized and existing under the laws of the United States of America;
(b) This Agreement and all other instruments required hereby to be executed and delivered to Seller by Purchaser are, or when delivered will be, the legal, valid and binding obligations of the Purchaser;
(c) Purchaser has full power and authority to execute and deliver this Agreement and all related documents and to carry out the transactions contemplated herein, and this Agreement and all instruments and documents delivered pursuant hereto at the Closing shall be valid and binding documents enforceable against Purchaser in accordance with their respective terms.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein do not conflict with or violate any provision of any agreement, instrument, law or regulation to which Purchaser is a party or by which it or its property is bound. No other approval or authorization of this Agreement or any other agreements to be entered into in connection with the transactions contemplated hereby are required by law or otherwise in order to make this Agreement or any other agreements entered into in connection with the transactions contemplated herein binding upon Purchaser. This Agreement and all other instruments required hereby to be executed and delivered to Seller by Purchaser are, or when delivered shall be, legal, valid and binding instruments of Purchaser; and
(e) In the event that the transactions contemplated herein should not close, Purchaser shall, at Seller’s request, return to Seller all documents, papers and copies of documents delivered to or obtained from Seller prior to Closing.
All of the foregoing representations and warranties shall be deemed to be true and correct as of the date of Closing and shall survive Closing.
9. COVENANTS OF PURCHASER. Purchaser hereby covenants and agrees that until the Closing Date, Purchaser shall comply with all of its obligations as a tenant under the Lease.
10. CONTINGENCIES TO CLOSING — PURCHASER. Purchaser’s obligations to proceed to Closing shall be conditioned upon and subject to the following contingencies hereinafter set forth in this Section 10; provided, however, Purchaser may unconditionally waive any one or more of the following contingencies set forth in this Section 10:
(a) The material representations and warranties of Seller contained herein shall be true and correct as of the Closing Date as if such representations and warranties were then made again.
(b) Seller shall comply with, fulfill and perform each of the material covenants, terms and conditions to be complied with, fulfilled or performed by Seller hereunder.
(c) The Title Company shall have issued to Purchaser an ALTA Form 2006 owner’s policy of title insurance (or its equivalent) on each Parcel, insuring title to such Parcel to be in the name of Purchaser as set forth herein subject to the payment of the applicable title insurance premium and other related charges by Purchaser. Each owner’s fee policy shall be in an amount equal to the Purchase Price allocable to each Parcel (as the same may be increased or decreased in accordance with Section 1 hereof) and containing only Permitted Exceptions or, in the alternative, an irrevocable commitment for the issuance thereof showing that all requirements have been satisfied. If the Title Company fails or refuses to issue such title insurance policy, Seller shall have the right to designate an alternate reputable title insurance company to insure Purchaser’s title to the Property at standard title rates, which shall be paid by Purchaser.
(d) Purchaser shall have acquired, or simultaneously with the Closing of this transaction will have acquired, in accordance with the Purchase and Sale Agreements of even date herewith by and between Purchaser and (i) ONB 4th Street Landlord, LLC; (ii) ONB 000 Xxxx Xxxxxxxx, LLC; and (iii) ONB CTL Portfolio Landlord #3, LLC (collectively, the “Other Purchase Agreements”) all of the property listed on Exhibit “D”, attached hereto (collectively, the “Other Property”). Any default by Purchaser under this Agreement shall be deemed a default by Purchaser under the Other Purchase Agreements and any default by Purchaser under the Other Purchase Agreements shall be deemed a default by Purchaser under this Agreement. Any default by Seller under this Agreement shall be deemed a default by Seller under the Other Purchase Agreements and any default by Seller under the Other Purchase Agreements shall be deemed a default by Seller under this Agreement. Any termination of this Agreement shall be deemed a termination of the Other Purchase Agreements and any termination of the Other Purchase Agreements shall be deemed a termination of this Agreement.
(e) Purchaser shall, at Purchaser’s sole cost and expense, obtain an appraisal of each Parcel and the Other Property (including all buildings and improvements thereon), by a duly licensed real estate appraiser having an MAI designation (“Appraiser”) no later than December 12, 2016. At Seller’s request, Purchaser shall promptly following receipt of each appraisal furnish a complete copy of such appraisal to Seller. If (i) the appraised value of a Parcel as determined by the Appraiser is less than the Purchase Price attributable to each Parcel; or (ii) the useful life of the building located on a Parcel is less than the time set forth under the heading “Remaining Depreciable Life” as set forth on Exhibit “A”, attached hereto, Purchaser shall have a one-time right to terminate this Agreement by giving Seller a Termination Notice to be received by Seller no later than 6:00 p.m. (Central Standard Time) on December 23, 2016, whereupon this Agreement shall be considered terminated and neither party shall have any further rights or obligations hereunder except as expressly set forth herein.
(f) The Lease shall have been terminated by the Lease Termination Agreement to be executed by each Seller and Purchaser at Closing.
(g) Purchaser shall have obtained, prior to December 12, 2016, the written consent of its lender, U.S. Bank, to acquire all of the Property pursuant to the terms of this Agreement (the “U.S. Bank Consent”). If Purchaser is unable to obtain the U.S. Bank Consent on or before December 12, 2016, Purchaser shall have the right to terminate this Agreement by giving Seller a Termination Notice to be received by Seller no later than 6:00 p.m. (Central Standard Time) on December 12, 2016, whereupon this Agreement shall be considered terminated and neither party shall have any further rights or obligations hereunder except as expressly set forth herein.
If Purchaser timely provides a Termination Notice to Seller pursuant to the provisions of this Agreement, the Deposit shall be refunded to Purchaser whereupon this Agreement shall terminate and except as expressly provided herein, neither party shall have any further right or obligation hereunder.
If Purchaser shall fail to give to Seller a Termination Notice, or if Purchaser waives the contingencies to Closing, in writing, this Agreement shall continue in full force and effect and Purchaser shall be deemed to have accepted the condition of the Property and all matters related thereto and have waived any and all right to make objections to the condition of the Property.
11. CONTINGENCIES TO CLOSING — SELLER. The obligations of Seller hereunder shall be subject to the fulfillment, prior to or at Closing, of each of the following conditions precedent; provided, however, that Seller may conditionally or unconditionally waive any one or more of such conditions:
(a) All of the documents and instruments delivered by Purchaser to the Title Company pursuant to the terms and conditions hereof shall have been delivered within the time specified herein and shall be in a form and substance reasonably satisfactory to Seller;
(b) The representations, warranties and covenants of Purchaser contained herein or any certificate or document delivered in connection with this Agreement or the transactions contemplated herein shall be true and correct on the Closing Date as though such representations and warranties were then made again on the Closing Date;
(c) Purchaser shall comply with, fulfill and perform each of the covenants, terms and conditions to be complied with, fulfilled or performed by Purchaser hereunder;
(d) Purchaser shall have acquired, or simultaneously with the Closing of this transaction will have acquired, in accordance with the Other Purchase Agreements, all of the Other Property; and
(e) Purchaser shall have complied with all obligations under each Lease, including, but not limited to, the payment of rent due thereunder.
If any of the foregoing contingencies in this Section 11 have not been satisfied at or prior to the time of Closing, Seller may terminate this Agreement by providing a Termination Notice to Purchaser, whereupon this Agreement shall terminate, Seller shall be entitled, to retain the Deposit as and for liquidated damages, and Purchaser shall be released from any further liability to Seller hereunder, except that such provisions contained herein as otherwise expressly survive termination of this Agreement shall survive.
12. TAXES/RENTS. There shall be no prorations of any real estate, intangible, personal property or other taxes or assessments for the Property (the “Taxes”). Purchaser shall pay all Taxes which have been assessed against the Property.
The rent payable under the Leases shall be prorated to the Closing Date with the Seller retaining the rent for the date preceding the Closing Date as though the Purchaser held title to the Property throughout the entire day on which Closing occurs.
13. DAMAGE OR DESTRUCTION; CONDEMNATION. The parties agree and acknowledge that the risk of loss in connection with (i) any damage or destruction, in whole or part, that may occur to the Property, or (ii) any proceedings to take or condemn the whole or part of the Property for public or quasi-public use under any statute, or by the right of eminent domain, whether commenced or threatened, prior to the Closing, shall be determined in accordance with the provisions of the Lease. To the extent that the Lease is terminated and Seller, in its capacity as landlord, is in receipt of the insurance or condemnation proceeds as provided in the Lease, then, in such case, the Purchase Price for that Parcel shall be reduced by the proceeds received by such Seller. If, following the occurrence of any event described in (i) or (ii) above of this Section 13 in which the Lease is terminated and no such insurance or condemnation proceeds have been received by Seller in connection therewith, then, in such case, the Purchase Price shall remain as set forth in Section 1 of this Agreement and Landlord shall assign to Purchaser all rights it may have to receive the proceeds of condemnation or insurance proceeds payable with respect to any such casualty or condemnation.
14. AS IS CONDITION. Except for any representations or warranties provided by the Seller as set forth herein and any warranties of title contained in any of the deeds or the Lease Termination Agreement executed and delivered by Seller at Closing (the “Seller’s Warranties”), this sale is made and will be made without representation, covenant or warranty of any kind (whether express or implied) by Seller and Purchaser accepts the Property in its “AS IS” and “WHERE IS” condition with all faults and without any representation or warranty, all of which Seller hereby expressly disclaims, except for Seller’s Warranties. Seller makes no warranty or representation as to the fitness of the Property for any particular purpose, merchantability, design, quality, condition, operation or income, compliance with drawings or specifications, absence of defects, environmental conditions, absence of faults, flooding or compliance with laws and regulations, including, without limitation, those relating to health, safety and the environment. Purchaser acknowledges that Purchaser has entered into this Agreement as a tenant in sole and exclusive possession of the Property and with the intention of making and relying upon its own investigation of the physical, environmental, economic use, compliance and other legal conditions of the Property and that, other than Seller’s Warranties, Purchaser is not relying and will not later rely upon any representation and warranties made by Seller or anyone acting or claiming to act under Seller’s behalf pertaining to the Property. Seller makes no warranty with respect to the presence of Hazardous Materials (as hereinafter defined) on, above or beneath the Property (or any parcel in proximity thereto) or in any water on or under the Property. Purchaser’s closing hereunder shall be deemed to constitute an express waiver of Purchaser’s right to cause Seller to be joined in any action brought under any Environmental Laws (as hereinafter defined). The term “Hazardous Materials” shall mean (a) those substances included within the definitions of any one or more of the terms “hazardous materials,” “hazardous wastes,” “hazardous substances,” “industrial wastes,” and “toxic pollutants,” as such terms are defined under the Environmental Laws, or any of them, (b) petroleum and petroleum products, including, without limitation, crude oil and any fractions thereof, (c) natural gas, synthetic gas and any mixtures thereof, (d) asbestos and or any material which contains any hydrated mineral silicate, including, without limitation, chrysotile, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable, (e) polychlorinated biphenyl (“PCBs”) or PCB-containing materials or fluids, (f) radon, (g) any other hazardous or radioactive substance, material, pollutant, contaminant or waste, and (h) any other substance with respect to which any Environmental Law or governmental authority requires environmental investigation, monitoring or remediation. The term “Environmental Laws” shall mean all federal, state and local laws, statutes, ordinances and regulations, now or hereafter in effect, in each case as amended or supplemented from time to time, including, without limitation, all applicable judicial or administrative orders, applicable consent decrees and binding judgments relating to the regulation and protection of human health, safety, the environment and natural resources (including, without limitation, ambient air, surface, water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §§ 9601, et seq.), the Hazardous Material Transportation Act, as amended (49 U.S.C. §§ 1801, et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. §§ 136, et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S. §§ 6901, et seq.) (“RCRA”), the Toxic Substance Control Act, as amended (42 U.S.C. §§ 7401, et seq.), the Clean Air Act, as amended (42 U.S.C. §§ 7401, et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. §§ 1251, et seq.), the Occupational Safety and Health Act, as amended (29 U.S.C. §§ 651, et seq.), the Safe Drinking Water Act, as amended (42 U.S.C. §§ 300f, et seq.), any state or local environmental law or counterpart or equivalent of any of the foregoing, and any Federal, state or local transfer of ownership notification or approval statutes. The provisions of this Section 14 shall survive the Closing and shall not be merged into any documents executed and delivered at Closing.
Purchaser hereby waives, releases, acquits, and forever discharge Seller, its officers, directors, shareholders, members, managers, partners, employees or agents, or any other person acting on behalf of Seller, of and from any and all from all loss, liability, cost and expenses, including without limitation, attorney’s fees and amounts paid in settlement, arising out of or in connection with any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Purchaser now has or may have or which may arise in the future on account of or in any way arising out of or in connection with any Hazardous Materials on, in, under, from, or affecting or otherwise resulting from operations or activities on the Property, or any Environmental Laws. To the fullest extent permitted by law, Purchaser waives any and all rights and benefits which it may have by virtue of any Federal, state or local law or regulation to receive any disclosures, statements, materials or other information from Seller in connection with this sale or the Property. Purchaser is a tenant in the Property and is an experienced and sophisticated real estate investor, is represented by counsel, and counsel explained to Purchaser the consequences of the foregoing waiver. Purchaser acknowledges and agrees that the waivers, releases, and other provisions contained in this Section 14 are a material factor in Seller’s acceptance of the Purchase Price and that Seller is unwilling to sell the Property to Purchaser unless Seller is released as expressly set forth above. Purchaser has fully reviewed the disclaimers, releases and waivers set forth in this Agreement and understands and accepts the significance and effect thereof.
15. DEFAULT.
(a) If Purchaser shall default in the performance of Purchaser’s obligations under this Agreement (a “Purchaser Default”), Seller’s sole and exclusive remedy shall be, and Seller shall be entitled, to retain the Deposit as and for full and complete liquidated and agreed damages for Purchaser’s default, and Purchaser shall be released from any further liability to Seller hereunder, except that such provisions contained herein as otherwise expressly survive termination of this Agreement shall survive. SELLER AND PURCHASER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER UPON A PURCHASER DEFAULT AND THAT THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER UPON A PURCHASER DEFAULT. SUCH LIQUIDATED AND AGREED DAMAGES ARE NOT INTENDED AS FORFEITURE OR A PENALTY WITHIN THE MEANING OF APPLICABLE LAW.
(b) If Seller shall default in the performance of Seller’s obligations under this Agreement, then as its sole and exclusive remedy at equity and law, Purchaser may: (i) terminate this Agreement and the Deposit shall be refunded to Purchaser and/or (ii) seek specific performance.
(c) In no event shall Seller or Purchaser be liable for consequential damages or extraordinary damages, whether foreseeable or unknown, proximate or remote, whatever the nature of a breach by such party of its obligations, representations, warranties, covenants and indemnifications (irrespective of how the same may be denominated) under, in connection with or arising out of this Agreement, and each party hereby waives all claims for any such damages.
(d) This Section 15 shall survive Closing and the termination of this Agreement.
16. BROKERS. Except for Xxxxxxxx Commercial Realty (the “Broker”), each of the parties represents and warrants to the other that neither party dealt with, negotiated through or communicated with any other broker in connection with the transactions contemplated hereby. Each party shall indemnify, defend and hold harmless the other party from and against any and all claims, loss, costs and expenses, including reasonable counsel fees, resulting from any claims that may be made against such party by any broker (other than Broker) claiming a commission by, through or under the other party. Seller shall be liable for the commission due Broker at Closing which is in the amount of Three Hundred Forty Thousand Dollars ($340,000.00).
17. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement contains the entire agreement between the parties respecting the matters herein set forth and supersedes all prior agreements and understandings between the parties hereto respecting such matters. This Agreement may be modified, amended, discharged or waived only by an agreement in writing signed by the party against whom enforcement of any such modification, amendment, discharge or waiver is sought. Except for the Broker’s right to a commission as set forth in Section 16 hereof, the parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto. The provisions of this Section 17 shall survive the Closing.
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. ATTORNEY FEES. If any party obtains a judgment against the other party by reason of breach of this Agreement, reasonable attorney fees as fixed by the Court shall be included in such judgment.
20. GENDER AND NUMBER. Whenever the singular or plural number, masculine, feminine or neuter gender is used herein, it shall equally include the other.
21. SUCCESSORS AND ASSIGNS. Purchaser shall not assign or transfer its rights or obligations under this Agreement without the prior written consent of Seller first obtained. Notwithstanding the foregoing, upon written notice to Seller the rights and obligations of Purchaser under this Agreement may be assigned to an entity affiliated with Purchaser. In any assignment which may be made by Purchaser of its rights and obligations under this Agreement, Purchaser shall remain primarily liable under this Agreement, and a copy of the assignment and assumption together with the notice of assignment shall be delivered to Seller not less than five (5) days prior to the Closing Date.
22. SEVERABILITY. The invalidity or unenforceability of any particular provision hereof shall not affect the other provisions and this instrument shall be construed in all respects as if such invalid or unenforceable provision had not been contained herein. Each provision of this Agreement, except as otherwise herein or therein provided, shall be valid and enforced to the fullest extent permitted by law.
23. COOPERATION. The parties agree, both before and after Closing, to cooperate in carrying out the terms of this Agreement and the agreements and documents executed in connection therewith, including the execution and delivery of such further instruments and documents as may reasonably be requested in order to more effectively carry out the terms and conditions of this Agreement.
24. NOTICES. All notices given or delivered under this Agreement shall be in writing and shall be validly given when hand delivered or sent by a courier or express service guaranteeing overnight delivery or by e-mail or telecopy, with the original being promptly sent as otherwise provided above, addressed as follows:
| If to Purchaser: | Old National Bank
One Main Street, Mail Stop ONP-007B
Xxxxxxxxxx, XX 00000
ATTENTION: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
E-mail: xxxx.xxxxxxxxx@xxxxxxxxxxx.xxx |
|||
| with copy to: | Xxxxx X. XxXxxxx, Esq.
Ziemer, Stayman, Xxxxxxx & Shoulders, LLP
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
E-mail: xxxxxxxx@xxxx.xxx |
|||
| If to Seller: | XXX XXX Xxxxxxxxx Xxxxxxxx #0, LLC
Attention: Xxxx Xxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
E-mail: xxxxxx@xx-xxxxxxx.xxx |
|||
| with copy to: | Law Office Xxxxxxxxxxx X. XxXxxxxx, P.C.
Attn: Xxxxxxxxxxx X. XxXxxxxx
0 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxx, XX 00000
Telephone: (000) 000-0000
E-mail: xxxxx@xxxxxxxx.xxx |
|||
Each address given is subject to the right of either party to designate a different address for itself by notice similarly given. Notices given by facsimile/telecopy or e-mail shall be deemed delivered on the day such notices are sent. Notices given by any other means described herein shall be deemed delivered on the day after such notices are sent.
25. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the state where the Parcel is located.
26. CERTIFICATION AS TO NON-FOREIGN STATUS. To inform the Purchaser that withholding tax is not required under Section 1445 of the Internal Revenue Code and under penalties of perjury, Seller certifies that Seller is not a non-resident alien or foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined by the Internal Revenue Code or regulations promulgated thereunder. Seller understands that this certification may be disclosed to the Internal Revenue Service and that any false statement made could be punished by fines, imprisonment or both.
27. NEGOTIATED AGREEMENT. This Agreement constitutes the result of negotiations between the parties relating to the matters set forth herein and, as such, no party shall be deemed to be the drafter of this Agreement. The language of all parts of the Agreement shall, in all cases, be construed as a whole, according to its fair meaning and not strictly for or against any party.
28. SECTION 1031 EXCHANGE. Notwithstanding any provision of this Agreement to the contrary, Seller and Purchaser each shall have the right to structure the sale and purchase of the Property as a like-kind exchange (the “Exchange”) for other real property of a like-kind to be designated by Seller and Purchaser (including the ability to transfer all or any portion of its rights under this Agreement to a qualified intermediary, an exchange accommodation title holder or one or more single member limited liability companies that are owned by any of the foregoing persons) in accordance with the provisions of Section 1031 of the Internal Revenue Code and the Treasury Regulations thereunder and IRS Revenue Procedure 2000-37. Seller and Purchaser shall each execute any and all documents requested by the other that are reasonably necessary to effect the Exchange and otherwise assist and cooperate with such party in effecting the Exchange, and the closing deliveries and mechanics set forth in this Agreement shall be adjusted to enable the Exchange to proceed in the manner reasonably required by Seller and/or Purchaser, provided, however, that nothing contained in this Section 28 shall be deemed to require either party to incur any additional fees, costs or expenses.
29. NO MERGER. The Lease shall not merge in or to this Agreement and shall remain in full force and effect until the Closing. The Lease shall, however, be terminated at Closing.
30. CLOSING COSTS. Except as otherwise expressly provided to the contrary in this Agreement, Purchaser shall pay (a) all charges for recording and/or filing the deed and the Lease Termination Agreement and (b) all charges for Purchaser’s Title Policy and survey costs, and each of the parties hereto shall bear and pay the fees and disbursements of its own counsel, accountants and other advisors in connection with the negotiation and preparation of this Agreement and the Closing and Seller shall pay, at Closing, the commission due Broker, all recording fees and other charges in connection with the removal of objections to title (which are not Permitted Exceptions), including all costs in connection with the satisfaction of Seller’s mortgages. The parties shall split any fee charged by Escrow Agent for the holding of the Deposit or by the Title Company or Escrow Agent for conducting of the Closing. The provisions of this Article 30 shall survive the Closing or any termination of this Agreement.
31. MISCELLANEOUS.
(a) Neither the preparation and transmittal of this Agreement, nor any negotiation or modification of this Agreement, shall constitute an offer to sell and shall not be binding upon or enforceable against Seller and Purchaser unless and until the Agreement has been duly executed by Seller and Purchaser and delivered.
(b) Any failure by either party to insist upon the strict performance by the other of any of the provisions of this Agreement shall not be deemed a waiver of any of the provisions hereof, and each party, notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance by the other party of any and all of the provisions of this Agreement to be performed by such party.
(c) The delivery of the deed by Seller, shall be deemed the full performance and discharge of every obligation, agreement or covenant on the part of Seller to be performed hereunder, except those obligations, agreements or covenants of Seller which are expressly stated in this Agreement to survive the Closing.
(d) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. To facilitate execution of this Agreement, the parties may execute and exchange counterparts of the signature pages by facsimile, or by email pdf’s and all such signatures shall be deemed to be original signatures.
(f) The captions are for convenience of reference only and shall not affect the construction to be given any of the provisions hereof.
SEE NEXT PAGE FOR SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written.
OLD NATIONAL BANK
| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
|
Xxxxxxx X. Xxxxxxxxx, Senior Vice President, Tax and Real Estate |
||
“Purchaser” |
| ONB CTL PORTFOLIO LANDLORD #5, LLC |
| By: | /s/ John K.C. Xxxxxx |
|
Xxxx X.X. Xxxxxx, Manager |
“Seller”
EXHIBIT “A”
TO PURCHASE AND SALE AGREEMENT
| Remaining | ||||||
| Property Address | Price Allocation | Depreciable Life | ||||
EVANSVILLE 0000 Xxxxxxxxxx Xxxxxx |
To Be Determined By Appraisal |
39 Years |
||||
EVANSVILLE 0000 Xxxx Xxxxxxxx Xxxxxx |
To Be Determined By Appraisal |
20 Years |
||||
GREENWOOD, IN 000 Xxxxx Xxxxx Xxxx 000 |
To Be Determined By Appraisal |
39 Years |
||||
JASPER, IN 000 Xxxx 0xx Xxxxxx |
To Be Determined By Appraisal |
39 Years |
||||
OWENSBORO, KY 3230 Mt. Moriah Avenue |
To Be Determined By Appraisal |
39 Years |
||||
RICHMOND, IN 0000 Xxxx Xxxx Xxxxxx |
To Be Determined By Appraisal |
39 Years |
||||
TELL CITY, IN 000 Xxx Xxxxxxx Xxxx |
To Be Determined By Appraisal |
39 Years |
||||
VINCENNES 0000 Xxxx Xxxxxx |
To Be Determined By Appraisal |
39 Years |
||||
Purchase Price Total
|
$ | 32,938,200.00 | ||||
EXHIBIT “B”
TO PURCHASE AND SALE AGREEMENT
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the “Agreement”) is made and entered into as of this day of November, 2016, by and between ONB CTL PORTFOLIO LANDLORD #5, LLC (the “Seller”), OLD NATIONAL BANK (hereinafter referred to as “Purchaser”) and XXXXX TITLE COMPANY (the “Escrow Agent”), WITNESSETH THAT:
WHEREAS, the Seller and Purchaser desire to close the sale of the real estate identified on Exhibit A, attached hereto (the “Property”), and Escrow Agent agrees to act as closing agent for said closing; and
WHEREAS, the Seller and Purchaser desire for the Escrow Agent to place in escrow the amount of Thousand Dollars ($ ) for the xxxxxxx money deposit for the purchase of the above-referenced Property (the “Escrowed Funds”); and
WHEREAS, the Escrow Agent is willing to serve as escrow agent to hold the Escrowed Funds until assurance is received that the transaction is complete or until notice is given by the Seller and Purchaser that the money should be released from escrow; and
NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The Escrow Agent is hereby appointed to serve as escrow agent, and the Escrow Agent shall hold the Escrowed Funds in a non-interest-bearing account at Old National Bank.
2. Release of Escrowed Funds. Upon receiving satisfactory direction signed by Seller and Purchaser, that the said sums can be released from escrow, the Escrow Agent shall promptly disburse to the party entitled thereto pursuant to the joint instructions, less any deductions hereinafter authorized, including, but not limited to the amount of $ to be paid to Escrow Agent for their services which cost shall be split equally by the Seller and Purchaser.
3. Services of Escrow Agent. The Escrow Agent agrees to provide escrow services for a fee of $ . At the sole discretion of the Escrow Agent, the Escrow Agent may elect to immediately deduct these sums at closing before placing the remainder in escrow or may elect to deduct them at the time the remainder of the funds are released to Seller or Purchaser. Escrow Agent shall also be reimbursed for any reasonable expenses.
4. Reliance by Escrow Agent. In making any distribution and in taking any action whatsoever pursuant hereto, the Escrow Agent may rely upon and shall be fully protected in relying upon any certificate, waiver notice, affidavit or other paper or document believed by Escrow Agent in good faith to be genuine or upon any evidence deemed by Escrow Agent in good faith to be sufficient.
5. Indemnification; Liability of Escrow Agent. In the event the Escrow Agent becomes involved in litigation in connection with this escrow, the Seller and Purchaser agree to indemnify and save the Escrow Agent harmless from all loss, cost, damages, expenses and attorneys’ fees suffered of incurred by the Escrow Agent as a result thereof. In the event of any disagreement between any of the parties to this Agreement, or between them or either or any of them and any other person, resulting in adverse claims or demands being made in connection with the subject matter of the escrow, or in the event that the Escrow Agent, in good faith, be in doubt as to what action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue so to refrain from acting until (i) the rights of all parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjusted and all doubt resolved by agreement among all of the interested persons, and the Escrow Agent shall have been notified thereof in writing signed by all such persons. The rights of the Escrow Agent under this paragraph are cumulative of all other rights which it may have by law or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused the execution of this Escrow Agreement the date and year first hereinabove set forth.
XXX XXX XXXXXXXXX XXXXXXXX #0, LLC
By:
Its:
“Seller”
OLD NATIONAL BANK
By:
Xxxxxxx X. Xxxxxxxxx, Senior Vice
President, Tax and Real Estate
“Purchaser”
XXXXX TITLE COMPANY
By:
Its:
“Escrow Agent”
EXHIBIT A
TO ESCROW AGREEMENT
PROPERTY LIST
EXHIBIT “A”
Property Address
|
||||||
EVANSVILLE, IN 0000 Xxxxxxxxxx Xxxxxx |
||
XXXXXXXXXX XX 0000 Xxxx Xxxxxxxx Xxxxxx |
||
XXXXXXXXX, XX 000 Xxxxx Xxxxx Xxxx 000 |
||
XXXXXX, XX 000 Xxxx 0xx Xxxxxx |
||
XXXXXXXXX, XX 3230 Mt. Moriah Avenue |
||
RICHMOND, IN 0000 Xxxx Xxxx Xxxxxx |
||
XXXX XXXX, XX 000 Xxx Xxxxxxx Xxxx |
||
XXXXXXXXX, XX 0000 Xxxx Xxxxxx |
||
EXHIBIT “C”
TO PURCHASE AND SALE AGREEMENT
LEASE TERMINATION AGREEMENT
AND RELEASE OF LEASE GUARANTY
TERMINATION OF LEASE AGREEMENT
AND RELEASE OF LEASE GUARANTY
THIS TERMINATION OF LEASE AGREEMENT AND RELEASE OF LEASE GUARANTY (the “Agreement”) made as of this day of , 2016 (the “Effective Date”), is an agreement of termination and release by and between ONB CTL PORTFOLIO LANDLORD #5, LLC (“Landlord”) and OLD NATIONAL BANK, a national banking association with an address of 0 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (“Tenant”).
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated (the “Lease”) for premises commonly known as , as more particularly described on Exhibit A, attached hereto (the “Premises”), and a Memorandum of Lease Agreement which was recorded in the Office of the of County, , as Instrument No. (the “Memorandum”).
B. Old National Bancorp (the ‘Lease Guarantor”) guaranteed the obligations of Tenant under the Lease pursuant to the terms of a Lease Guaranty dated (the “Lease Guaranty”).
C. On the Effective Date, Landlord will convey the Premises to Tenant.
D. Landlord and Tenant desire to terminate the Lease and to cancel and terminate the Lease Guaranty on the Effective Date on the terms and conditions set forth herein.
AGREEMENT
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 are hereby acknowledged, and in consideration of the release herein granted, the parties agree as follows:
1. The Lease is hereby deemed terminated and canceled effective as of , 2016.
2. Landlord hereby cancels and terminates the Leave Guaranty as of the Effective Date.
3. Tenant, on behalf of itself and its officers, directors, agents, servants, employees, invitees, successors and assigns (the “Tenant Parties”), release and forever discharge Landlord, its members, agents, servants, employees, invitees, successors, and assigns (the “Landlord Parties”) from any and all liabilities, claims, and damages of any kind or nature which Tenant, and the other Tenant Parties now or may hereafter have against the Landlord Parties as a result of any matter, cause, or thing whatsoever arising out of or in connection with the Lease accruing from and after the Effective Date.
4. Landlord, on behalf of itself and the other Landlord Parties release and forever discharge Tenant, the other Tenant Parties and Lease Guarantor from all liabilities, claims, and damages of any kind or nature which Landlord or the other Landlord Parties now or may hereafter have against the Tenant, Tenant Parties and Lease Guarantor as a result of any matter, cause, or thing whatsoever arising out of or in connection with the Lease and Lease Guaranty accruing from and after the Effective Date.
5. Each party hereto warrants and covenants that it has not assigned, hypothecated, or otherwise alienated any claims, demands, actions, and causes of action, hereinbefore released, or any part thereof, or any interest therein; and each party promises and agrees to hold the other party harmless with respect to all matters released or warranted.
6. Each individual executing this Agreement on behalf of his or her respective party represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said entity in accordance with the governing documents of such entity, and that upon full execution and delivery, this Agreement is binding upon said entity in accordance with its terms.
7. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.
8. This Agreement may not be amended or terminated nor any of its provisions waived except by an agreement in writing signed by the party to be charged.
9. The parties agree that this Agreement has been reviewed and negotiated by all parties and their respective counsel, and that, in any dispute over the meaning, interpretation, validity, or enforceability of this Agreement or any of its terms or conditions, there shall be no presumption whatsoever against either party by virtue of that party having drafted this Agreement or any portion thereof.
10. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument.
SEE FOLLOWING SIGNATURE PAGES
IN WITNESS WHEREOF, this Termination of Lease Agreement is executed effective as of the day of , 2016.
LANDLORD:
, LLC
By:
Its:
STATE OF
|
) ) SS: |
|||
COUNTY OF
|
) | |||
Before me, the undersigned, a Notary Public in and for said County and State, personally appeared , the of , LLC, and acknowledged the execution of the foregoing for and on behalf of said limited liability company as his voluntary act and deed.
WITNESS, my hand and Notarial Seal this day of , 2016.
| ( | ) Notary Public | |||
County of Residence:
|
My Commission Expires: | |||
IN WITNESS WHEREOF, this Termination of Lease Agreement is executed effective as of the day of , 2016.
TENANT:
OLD NATIONAL BANK
By
Xxxxxxx X. Xxxxxxxxx, Senior Vice
President, Tax and Real Estate
STATE OF INDIANA
|
) ) SS: |
|||
COUNTY OF VANDERBURGH
|
) | |||
Before me, the undersigned, a Notary Public in and for said County and State, personally appeared Xxxxxxx X. Xxxxxxxxx, known to me to be the Senior Vice President, Tax and Real Estate, of OLD NATIONAL BANK, a national banking association, and acknowledged the execution of the foregoing for and on behalf of said OLD NATIONAL BANK as his voluntary act and deed.
WITNESS, my hand and Notarial Seal this day of , 2016.
| ( | ) Notary Public | |||
County of Residence:
|
My Commission Expires: | |||
CROSS REFERENCE TO:
(Memorandum of Lease)
THIS INSTRUMENT PREPARED BY: XXXXX X. XXXXXXX OF THE LAW FIRM OF ZIEMER, STAYMAN, XXXXXXX & SHOULDERS, LLP, 20 N.W. FIRST STREET, P. O. XXX 000, XXXXXXXXXX, XXXXXXX 00000. TELEPHONE: (000) 000-0000.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law.
Xxxxx X. XxXxxxx
EXHIBIT A
TO LEASE TERMINATION AGREEMENT
LEGAL DESCRIPTION
EXHIBIT “D”
TO PURCHASE AND SALE AGREEMENT
OTHER PROPERTIES
EVANSVILLE, IN 000-000 XX 0xx Xxxxxx |
XXXXXXXXXX, XX 000 Xxxx Xxxxxx |
XXXXXXXX, XX 0000 Xxxxxxxx Xxxxxx |
XXXXXXXXXXXX, XX 0000 Xxxx Xxxxx Xxxx |
XXXXXX, XX 0000 Xxxxxx Xxxxxx |
XXXXXX, XX 0000 Xxxxx Xxxxxxx Xxxxxx |
XXXXXXXX, XX 0000 Xxxxxxx Xxxx |
XXXXX XXXXX, XX 000 Xxxxxx Xxxxxx |
