EXHIBIT 10.1
REAL ESTATE CONTRACT WITH M&I XXXXXXXX & XXXXXX BANK
REAL ESTATE CONTRACT
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THIS REAL ESTATE CONTRACT (the "Contract") is entered into as of the 15th
day of April, 2010 ("Effective Date"), by and between M&I Xxxxxxxx & Ilsley Bank
("Seller"), and Midwest Federal Savings & Loan Association of St. Xxxxxx
("Buyer").
In consideration of the covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto covenant and agree as follows:
1. Property. Seller hereby agrees to convey to Buyer and Buyer hereby
agrees to purchase from Seller the real property described on Exhibit A attached
hereto and all improvements located thereon and all appurtenances thereto (the
"Realty"), and the personal property described on Exhibit B attached hereto (the
"Personalty"). The Realty and Personalty are sometimes collectively referred to
herein as the "Property".
2. Purchase Price. The purchase price for the Property is Five Hundred
Thirty-Eight Thousand and 00/100 Dollars ($538,000.00) ("Purchase Price") and
shall be paid as follows:
(a) Xxxxxxx money in the amount of Ten Thousand and 00/100 Dollars
($10,000.00) shall be deposited by Buyer with the Title Company (defined in
Section 5 below) within five (5) days after the execution of this Contract.
At closing, the entire xxxxxxx money amount will be disbursed to the Seller
and applied to the Purchase Price, and will be reflected as a closing
statement credit to the Buyer. Seller and Buyer agree to execute an Xxxxxxx
Money Escrow Agreement if requested by the Title Company, which shall be in
form and content reasonably acceptable to Buyer, Seller and the Title
Company.
(b) The balance of the Purchase Price, subject to closing prorations
and credits, shall be paid in cash or a cash equivalent at closing.
3. Seller's Representations and Warranties. Seller hereby makes the
following representations and warranties in connection with Buyer's purchase of
the Property, and no others, express or implied:
(a) Seller has the corporate authority necessary to enter into this
Contract and comply with Seller's obligations hereunder;
(b) There are no pending or, to Seller's knowledge, threatened
condemnation or eminent domain proceedings which would affect the Property;
(c) There are no undisclosed agreements between Seller and any other
party which relate to the Property;
(d) Until the closing date, the Property will be maintained in
substantially the same condition as it is in on the date of this Contract,
subject to ordinary wear and tear and casualty damage; and
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(e) There is no litigation pending or, to Seller's knowledge,
threatened which would affect the Property or the use thereof by Buyer.
All representations and warranties made by Seller in this Section 3 shall
be true as of the closing date hereof and shall survive the closing of this
transaction for a period of one (1) year.
4. Survey Contingency. Buyer, at its sole expense, may obtain a survey of
the Realty prepared by a land surveying company registered in the same state as
the Realty. Buyer shall have thirty (30) days from the Effective Date to deliver
to Seller in writing any objection to a matter shown on the survey which
materially affects the Property or Buyer's use of the Property. If Buyer fails
to timely deliver notice to Seller of any survey objections (or elects not to
obtain a survey), then Buyer is deemed to have waived all rights to object to
any matters shown on the survey (or that would be shown on a current survey).
Seller may elect in Seller's sole discretion whether or not to attempt a cure of
such survey objections. Upon receipt of notice from Seller indicating that
Seller elects not to pursue a cure of a survey objection, Buyer shall have five
(5) business days to deliver notice to Seller terminating this Contract, in
which event Buyer the xxxxxxx money shall be disbursed to Buyer and the parties
shall have no further obligations hereunder except those provisions that
expressly survive. If Seller pursues a cure and is unable to cure the survey
objections by the closing date, then Buyer shall have the option to either
terminate this Contract (in which event the xxxxxxx money shall be disbursed to
Buyer and the parties shall have no further obligations hereunder except those
provisions that expressly survive), or close on the purchase of the Property
with no Purchase Price reduction, in which case Buyer is deemed to have accepted
any uncured survey objections and waived any rights against Seller relating
thereto.
5. Title Contingency. Promptly after the Effective Date, Seller shall
deliver or cause to be delivered to Buyer a current commitment (the
"Commitment") for an ALTA owner's title insurance policy for the Property issued
by a title agent selected by Seller using a nationally recognized title
insurance underwriter (the "Title Company"), together with copies of the
instruments listed in the schedule of exceptions in such Commitment. Buyer shall
have until the later of thirty (30) days from the Effective Date or ten (10)
days after receipt of the Commitment to deliver to Seller in writing any
objection to a matter shown on the Commitment which materially affects the
Property or Buyer's use of the Property ("Title Objections"). If Buyer fails to
deliver timely notice of Title Objections to Seller, Buyer shall be deemed to
have fully accepted the Commitment and all other matters disclosed therein. If
Buyer timely delivers Title Objections, Seller shall have fifteen (15) days
after receipt of Buyer's objection notice to notify Buyer in writing what, if
anything, Seller shall do to cure the Title Objections. Failure of Seller to
respond within said period shall indicate that Seller elects not to cure the
Title Objections. Seller shall have no obligation to cure any Title Objection or
incur any expense with respect thereto. If Seller elects not to cure one or more
of the Title Objections, Buyer shall have five (5) business days to deliver
notice to Seller terminating this Contract, in which event the xxxxxxx money
shall be disbursed to Buyer and the parties shall have no further obligations
hereunder except those provisions that expressly survive. If Seller pursues a
cure and is unable to cure a Title Objection by the closing date, then Buyer
shall have the option to either terminate this Contract (in which event the
xxxxxxx money shall be disbursed to Buyer and the parties shall have no further
obligations hereunder except those provisions that expressly survive), or close
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on the purchase of the Property with no Purchase Price reduction, in which case
Buyer is deemed to have accepted any uncured Title Objections and waived any
rights against Seller relating thereto.
Notwithstanding anything to the contrary herein, the following matters
shall be deemed "Permitted Exceptions" and Buyer shall have no right to object
to any of said matters on the Commitment:
(a) municipal and zoning ordinances and agreements entered under them,
building and use restrictions and covenants, and State and/or Federal
statutes and regulations;
(b) recorded easements for the distribution of utility and municipal
services;
(c) property taxes and special assessments levied in the year of
closing and subsequent years;
(d) such other matters as disclosed by the Commitment and waived or
deemed waived by Buyer pursuant to this Section 5.
At closing, Seller shall cause the Title Company to issue a current ALTA
owner's title insurance policy in the amount of the Purchase Price allocated to
the Realty insuring Buyer as the fee simple owner of the Realty as of the date
of recording the deed, subject to the Permitted Exceptions ("Title Policy").
6. Inspection Contingency. Buyer, at its sole expense, may obtain an
inspection of all buildings and related improvements located on the Property
and/or a Phase I environmental assessment of the Property. Buyer shall not have
the right to conduct any sampling of the water, soil, air or building
improvements without Seller's express prior written consent. Buyer shall have
thirty (30) days from the Effective Date to terminate this Contract by written
notice to Seller resulting from Buyer's objection to any matter shown in an
inspection report or Phase I environmental assessment, which materially affects
the Property or Buyer's use of the Property. If Buyer does not terminate the
Contract hereunder, then Buyer is deemed to have waived this inspection
contingency and any right to object to the condition of the Property or any
improvements located thereon. In no event shall Seller be required to cure any
matter to which the Buyer objects relating to the condition of the Property or
any improvements located thereon.
7. No Representations or Warranties; AS-IS Condition.
(a) Buyer is hereby purchasing the Property in "AS-IS, WHERE-IS"
condition and "with all faults", and agrees that it relies upon no
warranties, representations or statements by Seller, or any other persons
for Seller, in entering into this Contract or in closing the transactions
described herein, except for the express representations and warranties set
forth in Section 3 hereof. Buyer's closing on the acquisition of the
Property shall constitute conclusive evidence that Buyer is satisfied with
the condition of and title to the Property and has waived or satisfied
Buyer's survey, title and inspection contingencies set forth in Sections 4
through 6 above. In closing and completing this transaction, Buyer will
have relied exclusively upon its own inspections and reviews, and not upon
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any representation or warranty of Seller or its agents or employees except
those expressly set forth in Section 3 above.
(b) Except for the express representations and warranties set forth in
Section 3 hereof, Seller makes no warranties, representations or statements
whatsoever, express or implied, concerning or relating to the Property,
including without limitation: the income or expenses of the Property;
zoning and building codes and other similar restrictions; availability or
cost of utilities; the environmental condition of the Property; the
presence or absence of any hazardous substances, hazardous materials,
petroleum, or any substances regulated by federal, state or local law in,
on or under the Property; compliance of the Property with any law,
regulation, ordinance or similar requirement, including without limitation
the Americans with Disabilities Act; or the physical condition of the
Property or any improvements thereon. Buyer acknowledges that no agents,
employees, brokers or other persons are authorized to make any
representations or warranties for Seller.
(c) Buyer acknowledges and agrees that any Personalty to be conveyed in
this transaction from Seller to Buyer will be transferred by quit claim
xxxx of sale, with no representation, warranty or guaranty, expressed or
implied, regarding the condition of or the title to such Personalty, and
Buyer further agrees to accept such Personalty in its "AS-IS/WHERE IS"
condition at closing.
(d) Buyer (and any party claiming through or under Buyer) hereby agrees
that following the closing, Seller shall be fully and finally released from
any and all claims or liabilities against the Seller relating to or arising
on account of the condition of or title to the Property, including without
limitation, any matters specifically referenced in this Rider. This Section
7(a) through (d) shall survive the closing of the Contract.
8. Closing. The closing of this transaction shall take place within twenty
(20) days after expiration of all Buyer's contingencies set forth in this
Contract, at the offices of the Title Company, or at such other time and place
as may be agreed upon by Buyer and Seller. Unless other contingencies are
expressly granted in this Contract, Buyer's contingencies include only the
survey, title and inspection contingencies set forth in Sections 4, 5 and 6
above. At closing, Buyer shall deliver to the Title Company wired funds or other
immediately available funds in the amount of the Purchase Price, as adjusted by
any prorations and closing costs provided for herein, and such affidavits,
resolutions and other documents agreed between the parties, required for a legal
conveyance of real estate in the state where the Property is located or
otherwise required by the Title Company to issue the Title Policy.
At closing, Seller shall deliver to the Title Company a Quit Claim Deed
conveying the Realty to Buyer, subject only to the exceptions permitted herein,
a Quit Claim xxxx of sale conveying the Personalty to Buyer, if applicable, and
such affidavits, resolutions and other documents agreed between the parties,
required for a legal conveyance of real estate in the state where the Property
is located or otherwise required by the Title Company to issue the Title Policy.
All prorations required hereunder shall be computed as of the date of closing.
Possession of the Property shall be delivered to Buyer on the closing date.
Buyer shall pay for recording the deed. Seller shall pay the title insurance
premium for the Title Policy to be issued to Buyer and gap endorsement charges.
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Buyer shall pay for all other endorsement charges and the title insurance
premium for any loan policy, including endorsement charges related thereto. All
escrow fees and title company closing charges shall be shared equally by Seller
and Buyer. All other closing costs, including without limitation transfer taxes
and other recording fees, shall be allocated as customary in the state in which
the Property is located.
9. Taxes. Seller shall pay in full all general taxes and all installments
of special assessments, of whatever kind, due and payable with respect to the
Property prior to the closing date. All general real property taxes and all
installments of special assessments payable with respect to the Property for the
year of closing shall be prorated between Buyer and Seller as of the closing
date. If the precise amount of taxes and assessments payable for the year of
closing cannot be ascertained, proration shall be computed on the basis of taxes
and assessments on the Property for the immediately preceding tax year.
10. Casualty. If the Property is damaged by fire or other casualty after
the Effective Date of this Contract but prior to the closing date, such that the
cost to restore the Realty to its condition immediately prior to the casualty is
in excess of five percent (5%) of the Purchase Price, Buyer shall have the
option to:
(a) proceed to close this transaction on the terms contained herein and
receive an assignment of the insurance proceeds (or the right to receive
the same, if they are not received before closing) payable to Seller as a
result of the casualty; or
(b) terminate this Contract by written notice delivered to Seller
within ten (10) days after Buyer receives notice of the casualty, in which
event the xxxxxxx money shall be refunded to Buyer.
If the Property is damaged by fire or other casualty prior to the closing
date and the cost of restoration does not exceed five percent (5%) of the
Purchase Price, this Contract shall remain in full force and effect upon the
terms stated herein and at closing Seller shall assign to Buyer the insurance
proceeds (or the right to receive the same, if they are not received before
closing) payable to Seller as a result of the casualty.
11. Condemnation. If any of the Realty is condemned under the power of
eminent domain, is the subject of a threatened condemnation, or is conveyed to a
condemning authority in lieu of condemnation, Seller shall notify Buyer in
writing of the threat, condemnation or conveyance within five (5) business days
of its occurrence. Buyer shall within ten (10) days of the notice have the
option of (a) proceeding with the closing and receiving the award or
condemnation payment (or an assignment thereof, if the same is not received by
closing), or (b) canceling this Contract and receiving back the xxxxxxx money
deposited.
12. Access to Property. From the Effective Date to the date thirty (30)
days thereafter, Buyer and Buyer's authorized agents and contractors shall be
permitted access to the Property at reasonable times for the purpose of
conducting any of the following at Buyer's election: a survey of the Property, a
Phase I environmental assessment of the Property and/or a physical inspection of
any building and related improvements located on the Property. This Section 12
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does not authorize Buyer or Buyer's authorized agents or contractors to conduct
any sampling.
13. Indemnification. Buyer shall indemnify, defend and hold Seller harmless
from and against any and all losses, claims, actions, liabilities, damages,
liens, costs and expenses, including reasonable attorneys' fees, incurred by
Seller (or its agents, consultants or affiliates) arising out of or related to
(i) any activities upon the Property by Buyer, its agents, contractors and
employees, or (ii) the failure by Buyer to observe or perform any of its
covenants, representations or obligations under the Contract. This Section 13
shall survive the closing or termination of the Contract.
14. Notices. All notices required or permitted to be given hereunder shall
be given by certified mail, postage prepaid, or by overnight delivery service,
or shall be personally served, to Buyer and Seller at the following addresses:
BUYER: Midwest Federal Savings & Loan Association
of St. Xxxxxx
0000 Xxxxxxxxx Xxx.
Xx. Xxxxxx, XX 00000
SELLER: M&I Xxxxxxxx & Ilsley Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Corporate Real Estate
With copies to:
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All notices shall be deemed received either when actually received or three
(3) days after posting (if mailed), one business day after deposit with the
delivery service (if sent by overnight delivery), or when delivered (if
personally delivered). Either party may change the above addresses by written
notice to the other.
15. Default. If Buyer defaults in the full and timely performance of any of
its obligations hereunder, Seller shall be entitled to cancel this Contract and
retain the xxxxxxx money deposited hereunder as liquidated damages, the parties
agreeing that in the event of a default hereunder actual damages would be
impossible to calculate. If Seller defaults in the full and timely performance
of any of its obligations hereunder, Buyer, as its only remedies, may elect to
either terminate this Contract and receive a refund of the xxxxxxx money or seek
specific performance.
16. Real Estate Commissions. Seller hereby represents and warrants that it
has not engaged the services of any real estate agent, broker or firm in
connection with the Property or this real estate transaction other than N/A.
Seller hereby agrees to defend, indemnify and hold Buyer harmless from any and
all loss, cost or expense from any claim for real estate commission made by any
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agent, broker or firm engaged by Seller in connection with the Property or this
transaction. Buyer hereby represents and warrants that it has not engaged the
services of any real estate agent, broker or firm in connection with the
Property or this real estate transaction. Buyer hereby agrees to defend,
indemnify and hold Seller harmless from any and all loss, cost or expense from
any claim for real estate commission made by any agent, broker or firm engaged
by Buyer in connection with the Property or this transaction.
17. Entire Agreement. This Contract contains the entire agreement between
Seller and Buyer and there are no other terms, conditions, promises,
understandings, statements or representations, express or implied, regarding the
transaction contemplated hereby. This Contract may be amended only by a further
written document signed by each of the parties.
18. Successors and Assigns. The provisions of this Contract shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors, assigns, executors, administrators and legal representatives.
19. Captions. The captions of the paragraphs in this Contract have been
inserted for convenience of reference only and shall in no way modify or
restrict any provision hereof or be used to construe any of the provisions
hereof.
20. Severability. If any provision of this Contract is held invalid or
unenforceable, the invalidity or unenforceability shall be limited to the
particular provision(s) involved and shall not affect the validity or
enforceability of the remaining provisions.
Time is of the essence of this Contract.
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IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed as of the day and year first above written.
Date: April 15, 2010 BUYER:
Midwest Federal Savings & Loan Association
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of St. Xxxxxx
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President/CEO
Date: April 27, 2010 SELLER:
M&I Xxxxxxxx & Ilsley Bank
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Attest: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
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EXHIBIT A
DESCRIPTION OF THE PROPERTY
0000 Xxxxx Xxxx Xxxxxxx
Xx. Xxxxxx, Xxxxxxxx 00000
County Tax Parcel number: 06-1.0-02-002-000-013.007
EXHIBIT B
PERSONAL PROPERTY
"All personal property located on the Realty (other than the security
system currently in the building - it will be removed prior to closing)"
