Exhibit 10.12
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is made as of the 14
day of September 2000, by and between NATIONAL CITY BANK OF KENTUCKY, a
national banking association, successor to COMMERCENATIONAL BANK, whose address
is 101 South Fifth Street, Louisville, Kentucky 40202 ("Seller"), and FIRST
SECURITY BANK OF LEXINGTON, INC., a Kentucky banking corporation, whose address
is 400 East Main Street, Lexington, Kentucky 40507 ("Buyer"), or its assignees
as provided hereafter. In consideration of the mutual promises, covenants, and
agreements hereinafter set forth, and for other good and valuable consideration,
Seller and Buyer agree as follows:
1. Purchase and Sale, Condition of the Premises.
(a) Purchase and Sale. On the terms and subject to the conditions set forth
in this Agreement, Seller shall sell, convey, assign, and transfer to Buyer and
Buyer shall purchase from Seller all of Seller's right, title and interest in
and to the following described property:
The real property described in the attached Exhibit A", which Exhibit A" is
incorporated herein by this reference, together with and including all
structures, improvements, immovable fixtures and appurtenances located thereon
or related thereto (the "Premises"). The Premises generally consist of a lot
[and improvements] located at 318 -320 East Main Street, Lexington, Fayette
County, Kentucky, together with all rights presently titled to Seller pertaining
to such property, including all rights of way, easements, appurtenances, roads,
streets; all ventilating, heating and air conditioning equipment; all shrubs,
plants and trees; all installed electrical fixtures, each such item in its "AS
IS " condition; and all architectural plans to the extent the same exist in
Seller's possession.
(b) Limited Warranty Sale. As provided herein, Buyer will have an
opportunity to thoroughly inspect the Premises including, but not limited to,
title and survey matters. Therefore, Seller warrants title to the Premises as to
its acts only and makes no other warranties whatsoever as to the title of the
Premises.
(c) As Is " Sale. Buyer and its representatives will be afforded the
opportunity to continue to make such inspections of the Premises and any
personal property and matters related thereto as Buyer and its
representatives desire. Buyer acknowledges that notwithstanding any prior
or contemporaneous oral or written representations, statements, documents
or understandings, this Agreement constitutes the entire understanding of
the parties with respect to the subject matter hereof and supersedes any
such prior or contemporaneous oral or written representations, statements,
documents or understandings. BUYER FURTHER ACKNOWLEDGES THAT SELLER DOES
NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER
EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY CONTAINED HEREIN WITH RESPECT TO
THE PREMISES, PERSONAL PROPERTY OR ANY RELATED MATTERS, AND THAT THE
PREMISES AND PERSONAL PROPERTY ARE SOLD TO BUYER IN AN "AS IS", "WHERE IS",
"WITH ALL FAULTS " CONDITION. In particular, except as otherwise
specifically provided for in this Agreement, Seller makes no
representations or warranties with respect to the use, physical condition,
occupation or management of the Premises, compliance with applicable
statutes, laws, codes, ordinances, regulations or requirements relating to
leasing, zoning, subdivision, planning, building, fire, safety, health,
insurability or environmental matters, compliance with covenants,
conditions and restrictions (whether or not of record) pertaining to the
title to the Premises, other local, municipal, regional, state or federal
requirements, or other statutes, laws, codes, ordinances, regulations or
requirements.
2. Representations and Warranties of Seller. To induce Buyer to enter
into this Agreement and to purchase the Premises, Seller represents and
warrants to Buyer as follows, which representations and warranties shall be
true and correct as of the date of closing of the sale of the Premises:
(a) Authority to Enter Into Agreement. Seller has full power and
authority to enter into and carry out the terms and provisions of this
Agreement and the transactions contemplated hereby, including the sale,
assignment, transfer, conveyance and delivery of the Premises to Buyer,
without obtaining the approval or consent of any other party. Seller's
execution, delivery and performance of this Agreement and all other
agreements or instruments contemplated hereby will be a legal, valid and
binding obligation of Seller enforceable in accordance with its terms.
(b) Litigation. Seller has not been served with notice of any
litigation, action or legal, administrative, arbitration, condemnation,
assessment or other proceeding against the Premises or any part thereof.
(c) Compliance with Laws. Seller has no actual notice of any violation
of any statute, law, code, rule or regulation of any local, state or
federal government or regulatory agency or of any structural, mechanical,
title or survey defect affecting the use of the Premises (unless otherwise
provided for herein).
(d) Contracts and Agreements. Seller is not a party to any executed,
valid and binding contract to sell the Premises other than this Agreement
or any contract which will be effective only in the event Buyer fails to
purchase the Premises. Seller hereby specifically retains the right to
enter into valid and binding contracts to sell the Premises at any time
hereafter until the closing, so long as such contract becomes effective
only in the event the Buyer fails to complete the purchase of the Premises
so long as the Buyer's failure to complete such purchase is not due to the
default of Seller. There are no contracts, agreements, or arrangements
relating to the maintenance, use, leasing, management and/or operation of
the Premises which are not set forth and scheduled in Exhibit "B" attached
hereto and incorporated herein by reference. After the date of this
Agreement, Seller shall not enter into any amendments to existing contracts
or agreements or any additional contracts or agreements relating to the
maintenance, use, leasing, management and/or operation of the Premises
which shall extend beyond the closing without Buyer's prior written
consent.
(e) Leases and Advance Rental. All "Tenant" (as hereinafter defined)
leases are in full force and effect and Seller has not breached and is not
in default under any of the Tenant leases. The copies of the Tenant leases
delivered to Buyer are true and complete and include all amendments and
modifications thereof. Other than the Tenant leases delivered to Buyer,
there are no Tenant leases, contracts, agreements, commitments or
undertakings that will be binding upon Buyer or on the Premises after the
closing. Neither Seller nor any other person has required or accepted
rental from any Tenant for more than one (1) month in advance. All Tenant
leases and rental arrangements are in writing, are valid and enforceable
according to their respective terms, and are not subject to any offset or
counterclaim. Seller agrees not to grant any rent concessions after the
date of this Agreement without Buyer's prior written approval. Except as
otherwise provided in this Agreement, so long as this Agreement remains in
effect, Seller will not cancel (except for non payment of rent or other
default), modify or amend any of the Tenant leases or accept a surrender
thereof without the prior written consent of the Buyer.
(f) Current Rental Defaults. Seller is not aware of any current
default by any Tenant under any Tenant lease or of any facts, circumstances
or conditions which, with the passage of time or the giving of notice, or
both, could be expected to constitute such a default; and except as set
forth on the rent roll attached hereto as Exhibit "C" and incorporated
herein by reference, any prior default by any Tenant under any Tenant lease
has been cured or waived.
(g) No Outstanding Bills. As of the closing, all bills, accounts
invoices and/or claims for labor performed and services and materials or
good furnished to or for the Premises shall have been paid in full, and
there shall be no mechanics' liens or materialmen's liens on or affecting
the Premises.
(h) Future Action. Seller will not cause any action to be taken which
will cause any of the foregoing representations and warranties to be untrue
or not to be performed on the closing date.
(i) Further Leasing. So long as this Agreement remains in effect,
Seller will not lease, market, negotiate for the sale of or convey or
encumber any portion of the Premises or any right therein nor enter into
any agreement granting to any person or entity any right with respect to
the Premises or any portion thereof unless Seller shall have first obtained
Buyer's written consent thereto.
3. Purchase Price. The purchase price for the Premises shall be Three
Million Five Hundred Thousand and No/100ths Dollars ($3,500,000.00) (the
"Purchase Price") payable in immediately available U.S. funds at closing or
as otherwise provided for herein. The Purchase Price shall be subject to
such prorations, credits, allowances, or other adjustments as provided for
in this Agreement. The Purchase Price shall be payable by certified funds
or wire transfer to the account of Seller.
4. Purchaser's Right and Obligation of Inspection During Contingency
Period.
(a) Seller acknowledges that Buyer must have an adequate opportunity
to conduct those legal, factual and other inquiries and investigations as
Buyer deems necessary with respect to the Premises. To allow Buyer the
opportunity to ascertain the feasibility of the purchase, Buyer is granted
a period of sixty (60) days (the "Contingency Period") commencing upon
Buyer's receipt of all fully executed counterparts of this Agreement to
satisfy itself, in its sole discretion, that the Premises are suitable for
Buyer's needs.
(b) Within ten (10) days after full execution of this Agreement,
Seller agrees to provide to Buyer all documents and other items pertaining
to the Premises which can be reasonably located by Seller, including, but
not limited to, all leases and any amendments thereto, contracts relating
to the management, maintenance or use of the Premises, any environmental
reports, rent rolls, warranties, surveys and title policies (collectively
the "Required Documents"). Except as otherwise provided herein, there is no
obligation on Seller's part to obtain such information from any third
party. The material provided may have been obtained from various sources,
and, while assumed to be true, correct and reliable, the Seller makes no
warranty or representation, express or implied, as to the accuracy or
comprehensiveness of the information provided. Buyer acknowledges it is to
rely upon its own investigation, develop its own independent estimate of
income and expenses, and fully inspect the Premises, including, without
limitation, concerning structural and environmental matters before making
its independent decision concerning its obligation to complete the
purchase. Seller agrees at any reasonable time and from time to time after
the date of this Agreement, Buyer and Buyer's consultants and contractors
upon forty-eight (48) hours notice to Seller, shall have the right of
access to the Premises to fully inspect the Premises and so that Buyer may
conduct the tests provided for hereafter so long as (i) such tests and
inspections do not unreasonably disrupt the use of the Premises by the
occupants thereof and (ii) any damage to the Premises which is caused by
Buyer or Buyer's consultants or contractors is repaired to at least as good
a condition as existed prior to the test. All tests and repairs, if needed,
shall be at the cost of Buyer. Buyer further agrees to indemnify and hold
Seller harmless from any loss, liability or expense incurred by Seller
arising out of or in connection with any claim, damage or loss as a result
of Buyer's or Buyer's consultants' or contractors' actions or inactions in
conducting the tests upon the Premises, including but not limited to,
claims for loss or damage to the Premises, personal property or any third
party's property or injury to or death of any person arising out of Buyer's
actions or inactions or those of Buyer's consultants and contractors in
conducting tests on the Premises.
(c) Seller shall have delivered to Buyer, at least five (5) business
days before closing, estoppel certificates and attornment agreements
substantially in the form set forth in Exhibit "D" attached hereto and
incorporated herein by reference, executed by each of the tenants of the
Premises (individually a "Tenant") and dated no more than fifteen (15) days
prior to the closing certifying without exception the matters set forth in
Exhibit "D" and such other matters as may be reasonably requested by Buyer.
(d) Buyer shall have the right to conduct, at Buyer's option, any
investigation Buyer deems necessary concerning, including but not limited
to, the following: (i) any structural, mechanical, electrical or roof
analysis Buyer deems necessary; (ii) to determine that the Premises are not
subject to any restriction or easement that will prevent the use of the
Premises for Buyer's business purposes; (iii) to determine that zoning
laws, ordinances and title restrictions permit Buyer to use the Premises as
it so desires; (iv) to obtain an environmental report which shall indicate
that the property is free of "Hazardous Substances" as that term is defined
in any local, state or federal environmental laws and in compliance with
all such environmental laws; (v) to obtain an as-built survey of the
Premises which survey shall not disclose any matter unacceptable to Buyer;
(vi) the impact of so-called "Wetlands" laws and regulations upon the
Premises; and (vii) any other analysis or inquiry reasonably necessary to
facilitate Buyer's inspection of the Premises or analysis of the
suitability of the Premises for Buyer's business purposes.
(e) BUYER HEREBY ACKNOWLEDGES AND AGREES THAT IT IS TO RELY UPON ITS
OWN INVESTIGATION TO FULLY INSPECT THE PREMISES, INCLUDING, WITHOUT
LIMITATION, ENVIRONMENTAL MATTERS BEFORE MAKING ITS INDEPENDENT DECISION
WHETHER OR NOT TO COMPLETE THE PURCHASE CONTEMPLATED BY THIS AGREEMENT.
Seller shall provide to Buyer any records it may have in its possession
indicating whether the Premises contains asbestos containing material or
presumed asbestos containing material.
(f) In the event Buyer determines that the Premises is not suitable
for Buyer's needs, Buyer shall deliver written notice to Seller on or
before noon (Eastern Standard time) on the last day of the Contingency
Period that Buyer will not purchase the Premises and this Agreement shall
be canceled and of no further force and effect, and the "Deposit" (as
hereinafter defined) shall be immediately paid to the Buyer and each of the
parties shall be released from further liability to the other. In the event
Seller does not receive written notification on or before the last day of
the Contingency Period, it shall be presumed that Buyer intends to complete
the purchase.
(g) As a courtesy, and not as a condition of cancellation of this
Agreement, Buyer shall also provide to Seller copies of any reports or
documents obtained by Buyer reflecting information which caused Buyer to
determine the Premises was unsuitable for its purchase unless privileged or
Buyer is otherwise prohibited from the disclosure of such reports or
documents.
5. Reinspection. Buyer shall have the right to reinspect the Premises
immediately prior to closing. If, in Buyer's judgment, an adverse change in
the condition of the Premises has occurred, or if all Tenant leases are not
in full force and effect without any material defaults thereunder, or if
there are any material adverse changes or modifications in any of the
Tenant leases or any of the other Required Documents which have not been
approved by Buyer, or if any lease for any of the Premises has been made
after the date of this Agreement without Buyer's approval, then, at Buyer's
option, Buyer may terminate this Agreement, in which case the Agreement
shall be null and void and the Deposit shall be immediately returned to
Buyer and each of the parties shall be released from further liability to
the other.
6. Deposit. Contemporaneously with Buyer's execution of this
Agreement, Buyer shall deposit Seventy Thousand and 00/100ths Dollars
($70,000.00) (the Deposit") with James I. Murray, of Morgan & Pottinger,
P.S.C. ("Escrow Agent"), to be held in escrow pending closing. The Escrow
Agent's address and telephone number are 133 West Short Street, Lexington,
Kentucky 40507, (859) 253-1900. Upon execution hereof, Buyer will provide
the Escrow Agent with its tax identification or social security number. All
fees charged by the Escrow Agent shall be shared equally by Seller and
Buyer. After the termination of the Contingency Period, the Deposit shall
be non-refundable except as provided in this Agreement. The Deposit shall
be held in an interest bearing account and shall be disbursed in accordance
with the following terms and conditions: If the purchase and sale of the
Premises is: (a) consummated, the Deposit and any interest earned thereon
shall be credited against the Purchase Price; (b) not consummated as a
result of a breach or default by Buyer, Seller shall be entitled to retain
the Deposit and any interest earned thereon as liquidated damages; and (c)
not consummated (i) as a result of a breach or default by Seller or (ii)
Buyer exercises its right to cancel and/or terminate this Agreement as
provided in this Agreement. Buyer shall be entitled to the return of the
Deposit. (As used herein, the term "Deposit" shall include interest, if
any, earned thereon.)
If the transaction contemplated hereunder does not close due to
Buyer's failure to perform any act required of it hereunder, then the
Deposit shall be delivered to Seller as liquidated damages for Buyer's
failure to complete the purchase, it being acknowledged by Buyer and Seller
that the damages which Seller would sustain would be impracticable or
extremely difficult to fix or determine. Buyer and Seller agree that
Seller's economic detriment resulting from the removal of the Property from
the real estate market and other activities in furtherance of this
Agreement would be extremely difficult to ascertain. Accordingly, Buyer and
Seller agree that the payment of the Deposit is a reasonable estimate of
Seller's damages. The parties acknowledge that the actual damages caused
Seller by the failure to close would be extremely difficult to establish.
In addition, Buyer desires to have a limitation on its potential liability
to Seller if this transaction fails to close. Therefore, in order to induce
Seller to waive all other rights and remedies (other than specific
performance) Seller may have in the event of breach by Buyer of its
obligations to close hereunder, Buyer and Seller have agreed to the concept
of liquidated damages as set forth herein, with the amount and timing of
the payment having been the subject of negotiation between the parties.
Seller hereby waives all other rights and remedies other than the right to
file suit for specific performance. (In addition, Buyer shall pay all title
and escrow cancellation charges.) If the transaction contemplated hereunder
does not close due to Seller's default, Buyer shall be entitled to the
immediate return of the Deposit or to specific performance of this
Agreement in which event the Buyer shall receive a credit against the
Purchase Price for the Deposit, as its sole and exclusive remedies.
7. Evidence of Title. Within thirty (30) days after this Agreement has
been fully executed by the parties, Buyer, at Buyer's sole cost and
expense, shall obtain a title examination and opinion of title ("Opinion")
from a provider of Buyer's choice or a commitment for an ALTA Extended
Coverage Form B Owner's Title Insurance Policy from a national title
insurance company of Buyer's choice ("Title Commitment"). The Opinion or
Title Commitment shall set forth the state of title to the Premises,
together with all exceptions or conditions to such title which would appear
in an Owner's Title Insurance Policy. It shall be Buyer's responsibility at
its sole costs to obtain any Title Policy it may want at closing.
8. Review of Title Evidence. Buyer shall have the Contingency Period
to review the Opinion or Title Commitment as described above. If any
objection to any matter in the Opinion or Title Commitment exists, Buyer
shall deliver in writing to Seller such objections as Buyer may have to
anything contained or set forth therein; provided, however, that Buyer
shall not object to any matters which do not affect marketability of title
or materially interfere with Buyer's intended use of the Premises. Any such
item to which Buyer does not object during the Contingency Period shall be
deemed to be a "Permitted Exception." Notwithstanding the foregoing and
without requiring specific written objections by Buyer, the term "Permitted
Exception" shall not include any preprinted Schedule B-Section 2 exceptions
or any Schedule B-Section 1 requirements contained in the Title Commitment.
If Buyer raises any such objections to the Opinion/Title Commitment
within the time periods set forth herein, Seller shall have ten (10) days
after receipt of Buyer's objections to notify Buyer: (i) that Seller will
remove or cause the title insurance company to insure against any such
objectionable exceptions, in which event, Seller may extend the closing
date for such period as shall be required to effect such cure, but not
beyond forty-five (45) days; or (ii) that Seller elects not to cause such
exceptions to be removed.
If Seller gives Buyer notice that Seller cannot or elects not to cause
an objection to title exception to be removed, or in the event Buyer
determines in its reasonable discretion that the removal of such objection
cannot be accomplished to Buyer's reasonable satisfaction, Buyer shall have
ten (10) days from receipt of such notice in which to either notify Seller
that Buyer will proceed with the purchase and take title to the Premises
subject to such exceptions, or that Buyer elects to terminate this
Agreement. If this Agreement is terminated following notice under the
provisions of this paragraph, then neither party shall have any further
rights or obligations hereunder, and each party shall bear its own costs
incurred hereunder; provided, however, the Deposit shall be promptly
refunded to Buyer. If Buyer fails to notify Seller of any objections to the
commitment within the Contingency Period, Buyer shall be deemed to have
elected to proceed with the purchase and take title to the Premises subject
to such exceptions other than Schedule B-Section 2 pre-printed exceptions
and any Schedule B-Section 1 requirements. Any such election to proceed by
Buyer shall be deemed a waiver of such exception only as to Seller and
shall not serve to waive such exception as to any person or entity not a
party to this Agreement.
9. Survey. Buyer shall obtain, at its sole cost, any survey which it
wants within thirty (30) days of the date this Agreement has been fully
executed. Buyer shall within ten (10) days from its receipt of the survey
deliver in writing to Seller such objections as Buyer may have to anything
contained or set forth therein, together with a copy of the survey;
provided, however, that Buyer shall not object to any matters which do not
materially interfere with Buyer's intended use of the Premises . Any matter
contained in the Survey to which Buyer does not object shall be deemed to
be acceptable to Buyer.
If Buyer raises any objections to the survey within the time period
set forth herein, Seller shall have ten (10) days after receipt of Buyer's
objections to notify Buyer: (i) that Seller will remedy such objection or
cause the title insurance company to insure against any such objection and
provide Buyer with evidence reasonably satisfactory to Buyer of such
remedy, or provide Buyer with evidence reasonably satisfactory to Buyer
that such objection will be remedied or insured against before closing, in
which event, Seller may extend the closing date for such period as shall be
required to effect such remedy, but not beyond forty-five (45) days; or
(ii) that Seller elects not to cause such objection to be remedied.
If Seller gives Buyer notice that Seller cannot or elects not to
remedy the objection, or if Buyer determines that Seller cannot remedy such
objections to Buyer's reasonable satisfaction, Buyer shall have ten (10)
days from the receipt of such notice in which to notify Seller that Buyer
shall proceed with the purchase and take title to the Premises
notwithstanding Buyer's objection to the survey, or that Buyer shall
terminate this Agreement. If this Agreement is terminated pursuant to the
foregoing provisions of this paragraph, then neither party shall have any
further rights or obligations hereunder, and each party shall bear its own
costs incurred hereunder, and the Deposit shall be refunded to Buyer. If
Buyer fails to notify Seller of its election, Buyer shall be deemed to have
elected to proceed with the purchase of the Premises. Any such election to
proceed by Buyer shall be deemed a waiver of such objection only as to
Seller and shall not serve to waive such objection as to any person or
entity not a party to this Agreement.
10. Taxes, Assessments and Utilities: Prorations. Seller shall pay or
credit on the Purchase Price the amount of all ad valorem (real estate)
taxes, including penalties and interest, that are a lien as of the day of
closing, both current and reassessed and whether due or to become due and
all assessments related to the Premises to the extent the same have been
billed and are due and payable as of the date of closing. Buyer
acknowledges that any refund or credit on future taxes for periods prior to
the date of closing as a result of Seller's successful completion of any
valuation appeal shall be the Property of Seller.
The consumption of water, sewer user fee, electricity , telephone and
gas utilities is measured by meter. Seller shall notify the utility
companies to read the meters as soon as possible after closing and render
final bills to Seller. Buyer shall be responsible for obtaining utilities
in its own name as of the date of closing.
11. Closing Procedures. The closing of this sale shall take place at
the offices of the Escrow Agent , on or before thirty (30) days after the
expiration of the Contingency Period. Neither Seller nor Buyer need be
physically present at such Closing. Any reference in this Agreement to "a
closing", the "closing", or the "day of closing" shall mean the closing of
the purchase and sale contemplated by this Agreement.
The following shall occur on or before the Closing Date:
(a) Seller shall deliver or cause to be delivered to Buyer, through
escrow or directly to Buyer, the following documents duly executed and
acknowledged, where appropriate:
(i) Special Warranty Deed conveying good and marketable fee simple
title to the Premises to Buyer subject only to the Permitted Exceptions;
(ii) Bill of Sale conveying good, unencumbered title to any personal
property to Buyer;
(iii) A certificate of non-foreign status pursuant to section 1445 of
the Internal Revenue Code;
(iv) If required by Buyer's title insurer, an affidavit of title in
form reasonably acceptable to Buyer's title insurer;
(v) The original of all Tenant leases currently in effect for the
Premises or any portion thereof;
(vi) A current listing of any Tenant security deposits and prepaid
rents and an assignment of such deposits and prepaid rents to Purchaser;
(vii) A rent roll certificate by Seller dated as of the last day of
the last full month immediately preceding the closing date, which rent roll
shall show the name, space, monthly rental, prepaid rent and security
deposit, if any, paid by each Tenant, and the status of any default(s) or
non-payment of rent by any Tenant(s);
(viii) A copy of Seller's letter to Tenant notifying it of the sale of
the Premises and directing that all future rents be paid to Buyer;
(ix) An assignment of all (i) Tenant leases, (ii) any monies and sums
deposited with and/or held by Seller as Tenant deposits, including, without
limitation, all security and cleaning deposits required to be held by
Seller under the terms of any Tenant lease, (iii) any service contracts
which Buyer elects to assume, (iv) manufacturers' and vendors' warranties,
and (v) transferable warranties and guaranties then in effect, if any, with
respect to any of the improvements located on the Premises by an assignment
and assumption agreement in form acceptable to Buyer;
(x) A certificate of authority authorizing the officer signing on
behalf of Seller to make all deliveries, execute all documents and
instruments and perform all actions necessary and appropriate to fulfill
the terms of this Agreement;
(xi) An affidavit stating that Seller has reviewed all of the estoppel
certificates from all Tenants and that, to the best of Seller's knowledge,
the same are true and correct in all material respects;
(xii) Evidence of payment of all debts or obligations of Seller
related to the Premises as of the closing date; and
(xiii) Such other documents as may be reasonably necessary and
appropriate to complete the Closing of the transaction contemplated hereby.
(b) Buyer shall deliver to Seller:
(i) The balance of the Purchase Price as adjusted in accordance with
the terms of this Agreement; (ii) Corporate resolutions of Buyer, if Buyer
is a corporation, or otherwise other documentation in such form as may be
satisfactory to Seller and the title company, including Buyer's full
authority to purchase the Property; and
(iii) Such other documents as may be reasonably necessary and
appropriate to complete the Closing of the transaction contemplated hereby.
(c) The Buyer and Seller shall each sign a mutually agreeable Closing
Statement setting forth the Purchase Price and all items of cost and
expense or adjustment provided for herein.
12. Costs to be Paid by Parties.
(a) Seller shall pay the cost of discharging any liens or encumbrances
to which this purchase is not subject or not specifically assumed by Buyer.
(b) Water and other utility charges shall be prorated between Seller
and Buyer as of the Closing Date.
(c) All ad valorem real estate taxes and assessments levied or
assessed against the Premises shall be prorated between Buyer and Seller as
of the Closing Date on a fiscal year basis (July 1 to June 30) based on the
assessment for such year if the assessed value and applicable rates are
known at the time of closing. If the same are not known as of the time of
closing, such taxes shall be prorated on the basis of the most recent tax
bill for the Premises, Seller being charged and credited for same up to
such date and Buyer being charged and credited for same on and after such
date. Should the actual taxes for the year in which the closing occurs be
more or less than the amounts used as a basis for such proration, then the
proration shall be adjusted between Seller and Buyer upon receipt of the
actual tax bill for the Premises for the year in which closing occurs. Any
party hereto owing the other party monies as a result of such adjustment
shall promptly pay the same upon written demand. The obligations set forth
in the immediately preceding sentences shall survive the closing and not be
merged therein. Seller shall pay any assessments which are secured by a
lien against the Premises.
(d) Buyer shall pay for the cost of recording the Deed; any financing
obtained by Buyer in connection with its purchase of the Premises pursuant
hereto and all recordings and other fees and costs in connection therewith;
any intangible taxes, mortgage taxes or other similar taxes, fees or
assessments; and services incurred by Buyer in performing any feasibility
study and related tests and investigations and the charges for any survey.
Seller shall pay the cost of any documentary stamp taxes, deed taxes and
transfer taxes; and preparing the Deed. Except as otherwise provided
herein, Buyer shall pay all costs of evidence or assurance of title
required including costs of title examination, title commitment, and title
policy premium and escrow costs. Each party shall be responsible for its
own attorney's fees.
(e) Rent under the Tenant leases actually received by Seller for the
month during which the closing occurs shall be prorated as of midnight of
the closing date on the basis of the number of days in the month in
question. Buyer shall receive a credit against the Purchase Price for all
rent prepaid for any month after the month during which closing occurs.
Rents relating to the period up to closing which are actually received by
Buyer shall be paid to Seller. Rents relating to the period from and after
the closing which are actually received by Seller shall be immediately paid
to Buyer. At closing, Buyer shall receive all deposits Seller is obligated
to hold and/or refund under the terms of the Tenant leases. It is expressly
agreed that Buyer shall have no obligation to enforce collection of any
rents which may be due on the closing date or engage attorneys or bring
legal action to collect delinquent rent. Prepaid rent shall belong to the
Buyer and Seller shall credit the same to Buyer at the closing.
(f) Except as otherwise provided herein, for purposes of calculating
prorations, Seller shall be deemed to be in title to the Premises, and
therefore entitled to the income there from and responsible for the
expenses thereof, through the Closing Date. All prorations shall be made on
the basis of the actual number of days of the year and month which have
elapsed as of the Closing Date. If necessary, the amount of prorations
shall be adjusted in cash after the Closing, as and when complete and
accurate information becomes available.
13. Risk of Loss. Risk of loss to the Premises from casualty shall be
borne by Seller until the closing and Seller shall be entitled to all
insurance proceeds from any such loss. Until the closing, the Seller shall
keep the Premises fully insured against fire and other hazards covered by
extended coverage insurance in an amount not less than the full replacement
cost of the improvements located on the Premises. If, after the date of
execution of this Agreement, the Premises or any such part thereof is
substantially damaged or destroyed as a result of such casualty, Seller
shall immediately notify Buyer in writing of such, and Buyer shall be
entitled to elect in a writing delivered to Seller within twenty (20) days
after the receipt of Seller's notification to either (i) terminate this
Agreement, or (ii) proceed with the closing with Buyer receiving a credit
against the Purchase Price for the amount of the insurance proceeds to be
paid to Seller plus the amount of any deductible provided for in Seller's
insurance policy. If the Agreement is terminated pursuant to the provisions
of this paragraph, the Deposit shall be returned to Buyer and both parties
shall be relieved of any further liability or obligation under this
Agreement. Failure by Buyer to make an election within the time periods
provided herein shall be deemed an election to close the transaction
subject to the credits set forth herein. In the event any insubstantial
damages occur to the Premises or any part thereof after Buyer's execution
of this Agreement, Seller shall cause the Premises to be fully repaired to
its condition immediately prior to such occurrence prior to closing. In the
event Seller cannot complete the repairs prior to the scheduled closing
date, Buyer may extend the closing for a period not to exceed forty-five
(45) days. Any reference in this Agreement to "substantially damaged "
shall mean damage for which the cost of repairing the Premises or personal
property to its present condition equals or exceeds Two Hundred Thousand
and No/100ths Dollars ($200,000.00); therefore, any reference to
"insubstantial damages " refers to those damages which shall cost less than
Two Hundred Thousand and No/100ths Dollars ($200,000.00) to repair the
aggregate of all such damage. The determination of the cost of repairing
any damage shall be made by Seller based upon a written estimate from a
reputable contractor reasonably acceptable to Buyer.
14. Condemnation of the Premises. In the event that all or any
substantial portion of the Premises shall be taken by condemnation or under
the right of eminent domain before the closing date, Buyer may, at its
option, either terminate this Agreement by delivering written notice to
Seller and receive an immediate refund of the Deposit whereupon this
Agreement shall be null and void and of no further force or effect or
proceed to close the transaction in accordance with the terms hereof in
which event Buyer shall at closing receive a credit to the Purchase Price
for any condemnation proceeds received by Seller and an assignment of all
condemnation awards and/or payments in connection therewith not yet
received by Seller which shall become the sole property of Buyer.
15. Possession. Buyer shall be entitled to possession of the Premises
at and upon the closing subject to any Tenant leases which survive closing
and to the Seller's right to post-closing occupancy of a portion of the
Premises as provided by this Agreement.
16. Commission. Each party represents to the other that the
transaction contemplated by this Agreement has not been procured,
instigated, or caused, nor have any services been rendered, by a broker,
real estate salesperson, or other person, who has either been engaged by
the party or who might, may or shall claim a commission with respect to the
same, except Stidham Commercial Partners, 836 Euclid Avenue, 3rd Floor,
Lexington, Kentucky 40502 (whether one or more than one, the "Broker")
which represents the Seller. The Broker, if more than one, shall share the
commission provided for herein in proportion to the agreement separately
entered into by and between the named Brokers. Buyer and Seller shall have
no obligation to oversee the appropriate division of the commission between
or amongst the Broker. Seller shall pay Broker a commission in an amount
agreed upon pursuant to separate agreement between Seller and Broker.
Each party agrees to indemnify the other for its own acts with respect
to any claim made by any other such person as a result of any activity in
conjunction with the purchase and sale contemplated hereunder. In the event
the transaction does not close , no broker, real estate salesperson,
broker, or other person shall have any claim to any portion of the Deposit.
17. Miscellaneous.
(a) Captions. The captions, headings, and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit,
simplify, or modify the terms and provisions of this Agreement.
(b) Number and Gender of Words. Whenever the singular number is used,
the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
(c) Notices. All notices, demands, and requests and other
communications required or permitted hereunder shall be in writing, and
shall be deemed to be delivered (i) forty-eight (48) hours after being sent
by certified mail, return receipt requested, (ii) twenty-four (24) hours if
by national overnight courier, (iii) immediately, if personal delivery, or
(iv) upon confirmation of transmission if by facsimile to the following
addresses and facsimile numbers:
If to the Buyer: First Security Bank of Lexington, Inc.
400 East Main Street
Lexington, Kentucky 40507
Attn.: Julian Beard,
Chairman of the Board
Fax: (859) 367-3725
If to the Seller: National City Bank of Kentucky
421 West Market Street
Louisville, Kentucky 40202
Attn.: William A. Dunn,
Senior Vice President
Fax: (502) 581-5365
With a Copy to: Stidham Commercial Partners
Third Floor
836 Euclid Avenue
Lexington, Kentucky 40502
Attn.: Jeffrey R. Stidham
and National City Bank of Kentucky
101 South Fifth Street
Louisville, Kentucky 40202
Attn.: Thomas W. Volk, Counsel
Fax: (502) 581-6351
(d) Governing Law. It is intended by the parties that the laws of the
Commonwealth of Kentucky shall govern the validity, construction,
enforcement, and interpretation of this Agreement.
(e) Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements,
understandings, warranties and representations, if any, whether verbal or
written, relating to the Premises and may be amended or supplemented only
by an instrument in writing executed by both parties hereto.
(f) Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable, said provision shall be fully
severable; the Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of
the Agreement; and the remaining provisions of the Agreement shall remain
in full force and effect and shall not be affected by the illegal, invalid
or unenforceable provision or by its severance from the Agreement.
(g) Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts. If so executed, each of such counterparts is to
be deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement, but, in making proof of this
Agreement, it shall not be necessary to produce or account for more than
one such fully executed counterpart.
(h) Parties Bound. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by and against Seller and Buyer, and their
respective successors and assigns. Buyer may, prior to the closing, upon
such reasonable terms and conditions which Seller may request to protect
its interests, assign all or any part of its rights and obligations under
this Agreement to any entity, provided that Seller's consent which consent
shall not be unreasonably withheld, delayed or conditioned to such
assignment is conditioned on Buyer remaining fully liable and accountable
for the performance of its assignee.
(i) Further Acts. In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by Seller and Buyer,
Seller and Buyer agree to perform, execute, and deliver or cause to be
performed, executed, and delivered at the closing or after the closing any
and all such further and reasonable acts, deeds, and assurances as may be
reasonably necessary to consummate the transaction contemplated hereby in
accordance with this Agreement.
(j) Time of the Essence; Execution. It is expressly agreed by the
parties hereto that time is of the essence with respect to this Agreement
including, but not limited to, any provisions for the closing date, or for
the delivery of any notice allowed or required herein. This Agreement shall
be deemed binding upon the parties in accordance with its terms and
conditions when the same becomes fully executed by the parties.
(k) No Third Party Beneficiaries. Except as otherwise specifically
provided herein, nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer .
(l) Survival of Representations. The representations, warranties,
covenants and agreements of Buyer and Seller contained in this Agreement
shall survive the closing.
(m) Obligations Joint and Several. The obligations hereunder of each
of the undersigned, if more than one, as Buyer shall be joint and several
and any reference to "Buyer" shall be applicable to each separately as well
as to all.
(n) Waiver of Jury Trial. The parties hereto hereby waive any right to
trial by jury in matters arising out of this Agreement, the transfer of the
Property and the financing thereof by Lender. BUYER AND SELLER HEREBY
SPECIFICALLY ACKNOWLEDGE THE AFORESAID WA IVER OF RIGHT TO JURY TRIAL.
(o) Saturdays, Sundays and Legal Holidays. If the time for performance
of any of the terms, conditions and provisions hereof shall fall on a
Saturday, Sunday or legal holiday, then the time of such performance shall
be extended to the next business day thereafter.
(p) Confidentiality. As a condition to Seller's obligation to proceed
to Closing as provided herein, the parties understand and agree that the
existence and content of this Agreement shall be held in confidence by and
among the parties. Buyer and Broker, by signature hereto, agree that they
will hold such in strict confidence through September 18, 2000 and will
only disclose the execution of this Agreement to those persons/entities
having a need to know in order to carry out the intent of this Agreement,
including, but not limited to, state and federal securities administrators
or as otherwise required by law. The consultation with consultants or
professionals assisting the Buyer with this Agreement, including but not
limited to, attorneys, accountants, engineers, architects, surveyors and/or
contractors shall not be deemed a violation of this Section.
(q) Post Closing Occupancy by Seller. Seller and Buyer acknowledge and
agree that following the closing of the sale of the Premises the Seller
shall be allowed to continue to occupy the same space it presently occupies
on the third floor of the building on the Premises until March 31, 2001,
upon and subject to the following terms and conditions:
(i) Seller's occupancy shall be free of rent;
(ii) (ii) Seller shall be responsible for all maintenance of the space
occupied by Seller, including but not limited to, janitorial and light
bulbs, and Seller shall at its expense keep and maintain the space in as
good order, condition and state of repair as existed on the date of
closing, normal wear and tear excepted. Seller shall not make any
alterations or additions to the space without the prior written consent of
Buyer;
(iii) Seller shall carry general liability insurance with respect to
its occupancy and provide Buyer a certificate of such insurance naming
Buyer as additional insured;
(iv) Seller shall indemnify and hold Buyer harmless from any and all
claims, liabilities, obligations, damages, causes of action, costs and
expenses, including, without limitation, reasonable attorneys' fees,
whether arising out of injury or death to persons or damages to property
arising out of or relating to Seller's continued occupancy;
(v) Seller shall use the space in compliance with all laws,
regulations and ordinances and shall not maintain or cause to be maintained
any nuisance therein; and
(vi) Seller shall vacate the Premises on or before March 31, 2001,
without further demand or action by Buyer and shall remove all of its
personal property and broom clean the space.
(r) Escrow Agent. Escrow Agent hereby acknowledges receipt of the
Deposit. Escrow Agent is acting hereunder as a depository only and is not
responsible or liable in any manner for acting upon any notice, instrument
or other document reasonably believed by it to be genuine and correct and
to have been signed or sent by the proper person or persons. All of the
terms and conditions in connection with Escrow Agent's duties and
responsibilities are contained in this Agreement and Escrow Agent is not
expected or required to be familiar with the provisions of any other
instrument and shall not be charged with any responsibility or liability in
connection with the observance or nonobservance by anyone of the provisions
of any such other instrument. Seller and Buyer hereby agree to indemnify
Escrow Agent and hold it harmless from any and all claims, liabilities,
losses, actions, suits or proceedings at law, or in equity, or any other
expense, fee or charges of any character or nature, which it may incur or
with which it may be threatened by reason of its acting as Escrow Agent
under this Agreement, except in the case of Escrow Agent's own gross
negligence, bad faith or willful misconduct; and in connection therewith,
to indemnify Escrow Agent against any and all expenses, including
attorney's fees and the cost of defending any action, suit or proceeding
for resisting any claim. Escrow Agent shall not be bound or in any manner
affected by any notice of any modification, cancellation, abrogation or
rescission of this Agreement, or any fact or circumstance affecting or
alleged to have affected the rights or liabilities of any other person,
unless it has received written notice satisfactory to it, signed by all of
the other parties hereto. If any two or more of the parties hereto shall be
in disagreement about the interpretation of this Agreement or about the
rights and obligations of, or the propriety of, any action contemplated by
Escrow Agent hereunder, Escrow Agent may, at its sole discretion, refuse to
comply with the demands of any party and file an action in interpleader to
resolve the said disagreement. In no event shall Escrow Agent be required
to file an interpleader or similar type of action or to defend any action
or legal proceeding filed against it, but it may do so in its sole
discretion, at no expense to it, with all expenses incurred by the Escrow
Agent to be paid equally by the Seller and Buyer on demand; provided,
however, the prevailing party shall be entitled to recover from the other
party that portion of the Escrow Agent's expenses which the prevailing
party had previously paid. Escrow Agent may continue to refuse to take any
action, irrespective of the time which elapses during which such dispute
continues, until either the rights of the disputing claimants have been
duly adjudicated and Escrow Agent shall have received a certified copy of a
final judgment of a court of competent jurisdiction, or until the claimants
shall have reached agreement on their differences and shall have furnished
to Escrow Agent joint instructions with respect to the action to be taken.
Escrow Agent may conclusively rely on any such joint instructions and shall
be fully protected and indemnified in taking any action in reliance
thereon. All actions taken by Escrow Agent pursuant to any court order
shall be conclusively presumed to be taken in good faith.
Buyer and Seller recognize and acknowledge that Escrow Agent is
counsel for Seller, and Escrow Agent has agreed to serve as Escrow Agent
only as a convenience to both parties. Seller and Buyer agree that Escrow
Agent may continue to represent Seller in this and any other transaction
including, without limitation, representation in disputes between Buyer and
Seller hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above their respective signatures.
EXECUTED BY SELLER ON
September 14, 2000
NATIONAL CITY BANK OF KENTUCKY,
a national banking association
BY:/s/William A. Dunn
ITS:Senior Vice President
EXECUTED BY BUYER ON
September 13, 2000
FIRST SECURITY BANK OF
LEXINGTON, INC.,
a Kentucky banking corporation
BY:/s/Julian E. Beard
Julian E. Beard,
Chairman of the Board and Founder
BY:/s/John S. Shropshire
John S. Shropshire, President
EXECUTED BY ESCROW AGENT ON
September 13, 2000
MORGAN & POTTINGER, P.S.C.
BY:/s/James I. Murray
James I. Murray
EXHIBIT "A"
The Premises' legal description is believed to be as follows:
All that tract or parcel of land situated on the southwesterly side of
East Main Street and on the northwesterly side of Rose Street in Lexington,
Fayette County, Kentucky and more fully described and bounded as follows,
to-wit:
Beginning at an iron pin (set) in the southwesterly right-of-way line
of East Main Street, said point being a corner to Wilkinson Properties;
thence with Wilkinson Properties S 48 06' 25" W 152.48 feet to an iron pin
(found) in the northeasterly right-of-way line of Service Entrance No. 5,
of record in Consolidation Record Plats for the Lexington Urban Renewal and
Community Development Agency, Plat Book 31, Page 17 and Plat Book 31, Page
18 in the Fayette County Clerk's Office; thence with said northeasterly
right-of-way line of Service Entrance No. 5, S 41 49' 17" E 268.03 feet to
an iron pin (set) in the new northwesterly right-of-way line of Rose
Street; thence with said new northwesterly right-of-way line of Rose Street
for three calls, S 83 29' 59" E 13.89 feet to a P.K. nail (set), N 48 14'
54" E 139.00 feet to a P.K. nail (set) and N 03 17' 24" E 4.95 feet to a
P.K. nail (set) in the aforesaid southwesterly right-of-way line of East
Main Street; thence with said southwesterly right-of-way line of East Main
Street N 41 40' 07" W 275.27 feet to the beginning, containing 0.972 acre
with the improvements on the above-described property being known as
318-320 East Main Street, and being all of Parcel 3A as shown on the Public
Acquisition Plat, Bank of Commerce & Trust Co., 320 East Main Street, of
record in Plat Cabinet F, Slide 797, in the Fayette County Clerk's office.
THIS LEGAL DESCRIPTION IS NOT WARRANTED OR GUARANTEED BY SELLER OR BUYER.
EXHIBIT "B"
CONTRACTS AND AGREEMENTS
EXHIBIT "C"
RENT ROLL
EXHIBIT "D"
ESTOPPEL CERTIFICATES AND ATTORNMENT AGREEMENTS
EXHIBIT "E"
BROKER'S ACKNOWLEDGMENT
The undersigned Broker hereby approves the foregoing Real Estate
Purchase Agreement solely as to any representation or agreement pertaining
to the commission provided for therein and in regard to the confidential
nature of the transaction.
STIDHAM COMMERCIAL PARTNERS
By:
Its: