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EXHIBIT 10.1
PURCHASE AGREEMENT
This is a Purchase Agreement ("Agreement") between the following parties:
NAME ADDRESS DESIGNATION
---------------------------- ------------------------ -----------
Community Shores Bank, a 0000 Xxxx Xxxxxx Xxx. "Buyer"
Michigan banking corporation Xxxxxxxx, XX 00000
POT #103, Inc., a dissolved 0000 Xxxxx Xxxxxxxxx Xx. "Seller"
Michigan corporation Xxxxx Xxxxxxxx, XX 00000
STATEMENT OF AGREEMENT
For their mutual convenience and protection, and in consideration of their
mutual covenants and benefits contained in this Agreement, the parties agree as
follows:
1. Effective Date. This Agreement shall be effective as of the date of the
execution hereof by the Seller as set forth in Paragraph 20 ("Effective Date").
2. Offer to Purchase. Buyer offers to purchase and Seller agrees to sell
the real property in the City of North Muskegon, Muskegon County, Michigan
commonly known as 000 Xxxxx Xxxxxxxx and legally described on Exhibit A attached
hereto. Said property together with all buildings, improvements, easements,
division rights, hereditaments and appurtenances situated on or associated with
the land is collectively referred to herein as the "Premises."
3. Purchase Price. The Purchase Price for Premises shall be Eight Hundred
Fifty Five Thousand and 00/100 Dollars ($855,000.00).
4. Payment of Purchase Price. The Buyer shall pay the full Purchase Price
in cash or cash equivalent to the Seller upon execution and delivery of a
Warranty Deed and performance by Seller of the closing obligations specified in
this Agreement.
5. Xxxxxxx Deposit. Upon Seller's acceptance of this offer, Buyer shall
deposit with Transnation Title Insurance Company ("Transnation") an amount of
Ten Thousand and 00/100 Dollars ($10,000.00) ("Xxxxxxx Deposit"), evidencing
Buyer's good faith, to be held by Transnation and applied to the Purchase Price
upon closing of the transaction contemplated herein. If the purchase/sale does
not close for any reason other than default of Buyer, this deposit shall
promptly be refunded in full to Buyer upon Buyer's notice as described in
Paragraph 9 below.
6. Title Insurance. After Effective Date, Buyer shall obtain a commitment
for an owner's policy of title insurance without exceptions and in the amount of
the Purchase Price. At the time of closing, such title commitment shall be
updated through the date of closing and shall be marked up to show Buyer as the
fee title holder. The title commitment and title policy shall be without
standard exceptions, effective as of the date of closing, and shall include
endorsements as Buyer may require. The Seller shall pay for the cost of the
title policy and title commitment, except that Buyer shall pay any costs to
provide endorsements.
7. Access. From and after the Effective Date, at Buyer's expense, Buyer
may conduct such feasibility studies, due diligence, evaluations, and
information gathering regarding the Premises as Buyer shall determine. Subject
to the foregoing, Buyer and Buyer's agents, employees, and designees may enter
upon the Premises for the purposes of inspecting, making surveys, and soil
tests, obtaining topographical information and completing other similar
preliminary development work. Buyer shall promptly repair any damage to the
Premises which may be caused by Buyer or its representatives while on the
Premises and Buyer shall hold Seller harmless from any liability related to
entry of Premises by Buyer or Buyer's agents for purposes described in this
Paragraph 7. Notwithstanding the foregoing, however, Buyer acknowledges that
Seller is operating a business from Premises and will endeavor to conduct
diligence herein referenced and further defined in Paragraph 9 in such a way as
to cause minimal, if any, interference with Seller's business operation.
8. Terms and Conditions of Purchase. Purchase shall be subject to the
following terms and conditions:
(a) Within Ten (10) days of execution, Seller shall provide, in a form
satisfactory to Buyer, verification of the ownership entity holding
title to Premises and an executed resolution or other documentation
authorizing the signator in Paragraph 20 below to enter into this
Agreement and proceed to the sale of Premises.
(b) Seller agrees to cooperate with Buyer in the obtaining of any
governmental approvals that may be needed including, but not limited
to, site plan approval and zoning.
(c) Buyer may assign its interest in this Agreement at its sole
discretion.
(d) After closing, Buyer shall be permitted to continue to occupy
Premises for a period not to exceed Sixty (60) days from date of
closing ("Occupancy Period").
(e) Purchase specifically excludes building fixtures, HVAC, building and
restaurant equipment, interior furnishings and facility
improvements. These items shall be retained by Seller and shall be
removed from Premises within Ten (10) days of cessation of business
operations on the
Premises or by the end of the Occupancy Period, whichever is
earlier. Any items that remain on Premises after said period, shall
automatically become the property of the Buyer.
9. Contingencies of Purchase. Purchase shall be subject to and contingent
upon the meeting of the following contingencies to Buyer's sole satisfaction and
at Buyer's sole cost within Thirty (30) days of Effective Date:
(a) Agreement between Buyer and Seller concerning the form and wording
of a written agreement ("Occupancy Agreement") by which Seller shall
occupy Premises during Occupancy Period. During Occupancy Period,
Seller shall not pay rent, but shall provide and pay for casualty
and liability insurance naming Buyer as additional insured and shall
pay for the costs of utilities. Buyer shall pay real property taxes
commencing on date of closing. Occupancy Agreement, to be executed
at closing, shall also define terms and conditions for the removal
of Seller's retained property as described in Subparagraph 8(e)
above.
(b) Approval by Community Shores Bank Board of Directors of purchase of
Premises.
Further, purchase shall be subject to and contingent upon the meeting of the
following contingencies to Buyer's sole satisfaction and at Buyer's sole cost on
or before date of closing:
(c) Review of all conditions relating to Premises including, but not
limited to, the following: Environmental, engineering, ALTA survey,
zoning, soil borings, and wetlands.
(d) Review of title commitment and all easements and restrictions of
record including, but not limited to, Buyer's satisfactory receipt
of verification of access to M-120 and the Causeway from Premises
and the ability to erect directional and identification signage on
both M-120 and the Causeway.
Buyer and its representatives and consultants shall, subject to the terms of
this Agreement, have the right for a period of Ninety (90) days from Effective
Date (the "Inspection Period") to perform such tasks as Buyer deems reasonably
necessary related to diligent review of Premises, subject to the other terms and
provisions of this Agreement. On or before expiration of the Inspection Period,
as may be extended, Buyer may provide written notice to Seller that Buyer elects
to proceed with closing hereunder ("Notice to Proceed") or, in the alternative,
Buyer may notify Seller that contingencies of closing cannot be met to Buyer's
satisfaction ("Notice to Withdraw"). Upon Seller's receipt of Notice to
Withdraw, which be issued during Inspection Period for any reason in Buyer's
sole discretion, Xxxxxxx Deposit shall be refunded in full to Buyer and neither
Buyer nor Seller shall have any further obligation to terms and conditions of
this Purchase Agreement.
10. Payment of Commission. No brokerage commissions shall be due or
payable by Seller related to this transaction.
11. Taxes and Special Assessments. Taxes and assessments delinquent for
years prior to closing are to be paid in full by Seller. Additionally, Seller
shall pay the balance of any existing assessments as of closing. Real estate
taxes billed in the year of closing shall be pro rated on a calendar year basis
with Buyer assuming all taxes after date of closing and Seller paying all such
taxes through date of closing. Pro rations shall be based upon the last known
taxable value and last known millage rates.
12. Warranties of Seller. Except as otherwise provided or acknowledged in
this Agreement, Seller represents and warrants to and agrees with Buyer as
follows:
(a) Seller's interest in the Premises shall be transferred to Buyer on
the closing date, free from liens, encumbrances and claims of others
including tenants, if any.
(b) The performance of the obligations of the Seller under this
Agreement will not violate any contract, indenture, statute,
ordinance, judicial or administrative order of judgment applicable
to Seller of the Premises.
(c) There is no claim, dispute, litigation or proceeding pending, or to
the Seller's knowledge threatened, against or involving the Seller
or the Premises and the Seller does not know of or have reason to
know of any ground for any such litigation or proceeding which could
have an adverse impact on Buyer or Buyer's title to and use of the
Premises before or after closing.
(d) Seller shall continue to maintain the Premises in a state of good
condition and repair during the interim between the signing of this
Agreement and the closing date.
(e) Seller is without the personal knowledge as to the presence on the
Premises of any toxic or hazardous substances or of any underground
storage tanks.
(f) There are no pending or threatened condemnation proceedings against
the whole or any part of the Premises.
(g) Seller, through the person(s) executing this Agreement, has full
power and authority to enter into this Agreement and to assume and
perform all the obligations under this Agreement.
(h) There are no agreements, contracts, or leases, written or oral,
which affect the Premises in any manner other than this Agreement,
any agreements
disclosed by the title commitment, and any agreements or leases
which will be terminated prior to closing.
13. Warranties of Buyer. Except as otherwise provided or acknowledged in
this Agreement, Buyer represents and warrants to and agrees with Seller as
follows:
(a) The performance of the obligations of Buyer under this Agreement
will not violate any contract, indenture, statute, ordinance,
judicial or administrative order or judgment applicable to Buyer.
(b) There is no litigation or proceeding pending, or to the Buyer's
knowledge threatened, against or involving the Buyer, and the Buyer
does not know or have reason to know of any grounds for any such
litigation or proceeding which could have an adverse impact on
Seller or Seller's interest in this Agreement.
(c) In entering into this Agreement, Buyer has not relied upon any
written or verbal representations of Seller regarding the Premises
or any aspect of this transaction which are not expressly set forth
in this Agreement.
14. Closing and Possession. Buyer may provide the Notice to Proceed to
Seller on or before the expiration of the Inspection Period. If Buyer shall fail
to provide the Notice to Proceed within the Inspection Period, this agreement
shall terminate, and neither party shall have any further obligation to the
other. If Buyer shall provide a Notice to Proceed, the delivery of such Notice
shall be deemed a waiver of all contingencies of Buyer herein and the parties
shall proceed to closing, which shall occur not later than Fifteen (15) days
after delivery of Notice to Proceed. Conveyance shall be by Warranty Deed in a
form satisfactory to Buyer including Seller's provision of all and splits
available under the Land Division Act. Seller shall deliver possession of the
Premises to the Buyer at the closing subject to terms and conditions of the
Occupancy Agreement defined in Paragraph 9 (a) above. In no event, however,
shall Buyer's full possession of the Premises, including termination of the
Occupancy Agreement, occur later than Sixty (60) days after date of closing.
15. Default. If the Buyer defaults on the terms and conditions of this
Agreement and Seller is not in default, the Seller shall be entitled to retain
Xxxxxxx Deposit as liquidated damages and as its sole remedy. If Seller defaults
under this Agreement, Buyer shall be entitled to the prompt return of Xxxxxxx
Deposit and Buyer may pursue Buyer's legal and/or equitable remedies, including
specific performance, against Seller
16. Costs of Closing. The Seller agrees to pay for the following closing
costs: revenue stamps or other real estate transfer taxes, the recording of any
documents necessary to clear the title, and one-half of all closing fees charged
by Transnation. The Buyer shall pay any costs for any pre-purchase inspections
of the Premises, recording of the deed, and one-half of all closing fees charged
by Transnation. Notwithstanding the
foregoing, however, each party shall be responsible to pay its own attorney fees
in connection herewith.
17. Provision of Site Information. Within Ten (10) days of Seller's
execution of this Agreement, Seller shall provide to Buyer copies of any site
diligence, studies, or information in its possession or available to it
concerning Premises including, but not limited to, environmental assessments,
surveys, title insurance, soil borings, and wetlands reviews. All information
described in this paragraph shall be returned to Seller in the event Buyer does
not proceed to closing of its purchase of Premises.
18. Miscellaneous. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their successors and assigns. This Agreement sets
forth the entire agreement between the parties and may not be amended, modified,
altered or changed except in writing signed by both parties. No provision of
this Agreement shall be interpreted for or against any party because that party
or that party's attorney drafted the provision. This Agreement shall be governed
by and construed according to the laws of the State of Michigan. All
representations and warranties made in this Agreement shall survive the closing.
All notices and other communications to be given or made hereunder shall be in
writing and deemed given only if sent by registered or certified U.S. mail,
return receipt requested, postage prepaid, or by overnight delivery service to
the parties at their addresses as set forth on page 1 of this Agreement. All
such notices or other communications shall be deemed to be given on the date
when mailed. Either party may change the address to which notices and
communications to it are to be sent by giving notice of any such change of
address in the manner heretofore prescribed. This Agreement may be executed in
counterparts or via facsimile and each counterpart and facsimile hereof shall be
effective as an original of this Agreement.
19. Deadline. The offer represented by this Agreement shall remain open
only until 5 p.m. on May 9, 2005. If the Seller has not executed and delivered
an original copy of this Agreement to the Buyer at or before such time, this
Agreement shall terminate and neither party shall have any obligation to the
other related thereto. This offer to purchase is dated this 28th day of April
2005.
BUYER
Community Shores Bank, a Michigan
banking corporation
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
By: Xxxxxxx X. Xxxxxxx
Its: President
20. Acceptance. This above offer is hereby accepted as written on this
_4___ day of May 2005 ("Effective Date").
SELLER
POT #103, Inc., a dissolved
Michigan corporation
/s/ Xxxxxxx Xxxxxxxx
------------------------------
By: Xxxxxxx Xxxxxxxx
Its: President
EXHIBIT A
Attachment to Purchase Agreement dated April 28, 2005, by and between Community
Shores Bank, Buyer, and POT #103, Inc., Seller, regarding property commonly
known at 000 Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx.
Legal Description
Exhibit "A"
Part of Lot 8 of Block 49 (Map of 1900) of the City of North Muskegon, described
as follows: Commence at the Intersection of the Easterly line of said Lot 8 with
the centerline of the branch track of the C & O R.R. Co., thence South 53
degrees 15 minutes West along the centerline of said branch track 821.5 feet,
thence South 47 degrees 33 minutes East 135.5 feet, thence South 40 degrees 22
minutes West 203.40 feet, thence South 63 degrees 34 minutes East 54 feet to the
point of beginning, thence South 63 degrees 34 minutes East 230 feet, thence
South 26 degrees 26 minutes West 199.72 feet, thence along the right-of-way of
Old U.S. 31 Northwesterly 232.50 feet along the arc of a 942.14 foot radius
curve to the right, the chord of which bears North 63 degrees 16 minutes 29
seconds West 231.9 feet, thence North 26 degrees 58 minutes 55 seconds East
198.55 feet to the point of beginning, together with and subjected to the
attached casement for ingress, egress and utilities.
EASEMENT FOR INGRESS, EGRESS AND UTILITIES:
Part of Lot 8 of Block 49 (Map of 1900) of the City of North Muskegon, described
as follows: Commence at the intersection of the Easterly line of said Lot 8 with
the centerline of the branch track of the C & O R.R. Co., thence South 53
degrees 15 minutes West along the centerline of said branch track 821.5 feet,
thence South 47 degrees 33 minutes East 135.5 feet, thence South 40 degrees 22
minutes West 263.40 feet for point of beginning, thence South 54 degrees 38
minutes East 68.62 feet to the Westerly line of the above described premises,
thence along said Westerly line South 26 degrees 58 minutes 55 seconds West
24.77 feet, thence North 54 degrees 38 minutes West 196.33 feet, thence along
the Easterly right-of-way of X-000 Xxxxx 00 degrees 39 minutes 58 seconds East
24.53 feet, thence South 54 degrees 38 minutes East 125.25 feet to the point of
beginning.
