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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, 0000 Xxxx Xxxxxx Xxxxxx "Buyer"
a Michigan banking corporation Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxxxxxx-Xxxxx Real Estate, LLC, 0000 Xxx Xx Xxxxxx Xxxx, Xxxxx 000 "Seller"
a Kentucky limited liability company Xxxxxxxxxx, Xxxxxxxx 00000-0000
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 Muskegon, Muskegon County, Michigan, legally
described as set forth below. 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." The Premises is described as:
Lots 43-48, inclusive, Shady Park, as recorded in Liber 9 of Plats,
Page 54, Muskegon County Records, situated in the County of Muskegon,
State of Michigan.
3. Purchase Price. The Purchase Price for the Premises shall be Six Hundred
Seventy Five Thousand Dollars ($675,000.00).
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
Five Thousand Dollars ($5,000.00) ("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. Upon
satisfaction of paragraph 10, Restrictive Covenant Contingency, Buyer shall
deposit an additional Twenty Thousand Dollars ($20,000.00) as an additional
xxxxxxx deposit.
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 purpose 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, Buyer's access to the property and any due
diligence associated therewith shall not commence until the restrictive covenant
contingency has been satisfied.
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 have the immediate right to possession.
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 on or before the date of closing:
(a) Satisfactory review by Buyer of all conditions relating to the
Premises including, but not limited to, the following: environmental,
engineering, ALTA survey, zoning, soil borings, and wetlands.
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(b) Satisfactory review by Buyer of title commitment and all easements and
restrictions of record.
(c) Satisfactory review and completion of all governmental approvals that
may be required for the Buyer to construct a banking facility upon the
subject Premises.
(d) Approval by Community Shores Bank Board of Directors of purchase of
Premises.
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 and after
the satisfaction of the restrictive covenant contingency as set forth in
Paragraph 10 hereof (the "Inspection Period") to perform such tasks as Buyer
deems reasonably necessary related to diligent review of the 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 shall 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. Restrictive Covenant Contingency. The parties acknowledge that the
subject property is restricted by certain covenants that restrict the use of the
property to residential usage. The parties further acknowledge that the Buyer's
intended use of the property is for commercial purposes in order to establish a
banking facility upon the property. The parties further acknowledge that
judicial action will be required in order to remove the residential restrictive
covenants and that there is no guarantee of success in that regard. Therefore,
Buyer and Seller agree as follows:
(a) Upon execution of this Purchase Agreement, the Buyer shall proceed to
retain legal counsel to pursue a declaratory lawsuit in the Circuit
Court for the County of Muskegon, State of Michigan, to seek judicial
relief, relieving the property from the residential covenants and
permitting the usage of the property to include the establishment of a
banking facility.
(b) The costs and attorney fees of the aforesaid litigation will be at the
sole expense of the Buyer.
(c) The Buyer shall have six (6) months from the date of execution of this
Purchase Agreement to complete the aforesaid litigation, provided that
if the Buyer is successful and the Defendants appeal Circuit Court
decision, then this Agreement shall be extended throughout the term of
the appeal. Notwithstanding the foregoing, in the event the Circuit
Court adjourns a trial date or other hearing on its own volition that
extends the time for trial beyond the six (6) month date as
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aforesaid, then the Buyer shall have until the adjourned date set by
the Court to complete the litigation.
(d) The Buyer agrees to close this transaction within ninety (90) days of
the entry of a judgment in favor of the Buyer or within ninety (90)
days of the entry of a favorable appellate decision if an appeal is
filed by the Defendants. The aforesaid 90-day period may be extended
by Buyer if the due diligence time periods otherwise set forth in this
Agreement result in such an extension of time.
(e) In the event the decision of the Circuit Court is unfavorable to the
Buyer, then this Purchase Agreement shall terminate upon entry of such
judgment and Buyer shall be entitled to the return of any and all
xxxxxxx money.
(f) Seller agrees that Seller shall cooperate in good faith with Buyer
throughout the anticipated court proceedings and accommodate the Buyer
should Seller or Seller's agents be deemed necessary to act as
witnesses or should Seller possess evidentiary materials in its
records that would assist Buyer in the prosecution of the aforesaid
suit.
(g) Buyer's obligation to close with Seller upon completion of the above
lawsuit with a favorable judgment shall additionally be contingent
upon the other provisions in this Agreement requiring Buyer's
satisfaction.
(h) Seller's representations and warranties, except title, shall not
survive the closing.
11. Payment of Commission. No brokerage commissions shall be due or payable
by Seller related to this transaction unless Seller has previously listed the
Premises and is obligated to pay a commission and if such is the case, then the
commission will be split between Seller's broker and the firm of Xxxxxxx Xxxxxxx
pursuant to customary procedures within Western Michigan.
12. Taxes and Special Assessments. Taxes and assessments delinquent for
years prior to closing shall 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 mileage rates.
13. 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.
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(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.
14. 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 court 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.
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15. 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 splits available
under the Land Division Act. Seller shall deliver possession of the Premises to
the Buyer at the closing.
16. 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.
17. 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.
18. 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.
19. 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 one 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.
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20. Deadline. The offer represented by this Agreement shall remain open
only until 5:00 p.m. on October 24, 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 10th day of
October 2005.
BUYER:
COMMUNITY SHORES BANK,
a Michigan banking corporation
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Its President
21. Acceptance. This above offer is hereby accepted as written, and as
modified, on this 24 day of October, 2005 ("Effective Date").
SELLER:
XXXXXXXXXXX-XXXXX REAL
ESTATE, LLC, a Kentucky limited
liability company
By /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxxx
Its
------------------------------------
Member
Buyer shall have until 5:00 p.m. on November 1, 2005 to accept the changes made
in paragraphs 3,5, & 10.
Xxxxxxxxxxx-Xxxxx Real Estate, LLC
By: Xxxxx Xxxxxxxxxxx, Member
Initialed and accepted as modified on October 31, 2005.
Community Shores Bank
A Michigan banking corporation
By: Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Its President
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