HomeMy WebLinkAboutBobby John/CRC/Purchase Agreement /1,300,000 PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is entered into this 9th day of February, 2011 (the
"Execution Date"), by and between BobbyJohn, LLC (the "Seller"), and The City of Carmel Redevelopment
Commission ("CRC").
1. Conveyance. Subject to terms and conditions of this Agreement, CRC shall purchase from Seller, and
Seller shall convey to CRC, certain real estate owned by Seller and located in the City of Carmel, Indiana (the "City"),
which real estate is depicted and/or described on Exhibit A (the "Parcel"), together with and including all of Seller's
right, title, and interest in and to:
(a) all buildings and improvements located on the Parcel (the "Improvements"):
(b) all equipment, machinery,building systems,and fixtures located on or in the Parcel and/or
the Improvements (the "Equipment"); and
(c) all rights, interests, privileges, and easements in any way appertaining to the foregoing,
or used in connection therewith (the "Rights").
The Parcel, the Improvements, the Equipment, and the Rights, collectively, are the "Property".
2. Purchase Price.
(a) Purchase Price. Subject to Subsection 2(b),the purchase price for the Property shall be
$1,300,000.00 (the "Purchase Price").
(b) Payment. Notwithstanding anything to the contrary herein, on closing the transaction
herein contemplated (the "Transaction"), CRC and Seller shall execute a land sale contract in
form and substance reasonably satisfactory to CRC and Seller (the "Land Sale Contract"),
pursuant to which CRC shall pay to Seller the Purchase Price, reduced by any reductions,credits,
or prorations for which this Agreement provides. Upon final payment in full by CRC under the
Land Sale Contract, Seller shall execute and cause to be recorded in the Office of the Hamilton
County Recorder an instrument evidencing such final payment by CRC, in form and substance
satisfactory to CRC. CRC shall have the right to seek specific performance of the obligations of
Seller under this Subsection. This Subsection shall survive the closing of the Transaction.
3. Closing. Subject to the terms and conditions of this Agreement, the Transaction shall close within 15
business days after the Execution Date, with the exact date of closing (the "Closing Date") to occur on a date
mutually acceptable to CRC and Seller. The closing shall take place either at the office of Hamilton Title Security,
LLC (the "Title Insurer"), or at such other place as CRC and Seller mutually may agree. Except as otherwise
described herein or in the Land Sale Contract, Seller shall deliver possession of the Property to CRC on the
Closing Date, free and clear of all rights and claims of any other party to the possession, use, or occupancy of
the Property.
4. Payments. In connection with the closing: (a) Seller shall pay: (i) all costs of releasing liens against the
Property caused by, through, or on account of Seller, other than the existing mortgage lien held by PNC Bank and
secured by the Property (the "PNC Mortgage"); (ii) the cost of the Land Contract Policy (as hereinafter defined);
and (iii) 1/2 the closing and escrow fees charged by the Title Insurer; and (b)CRC shall pay: (i) the cost to record
the Land Sale Contract; (ii)the cost of any endorsements to the Land Contract Policy; and (iii) % the closing and
escrow fees charged by the Title Insurer.
5. Closing Documents.
(a) Seller. At the closing, Seller shall execute (if applicable) and deliver to CRC:
(i) the Land Sale Contract, in form and substance reasonably satisfactory
to Seller and CRC;
(ii) a vendor's affidavit consistent with a land sale contract in form and
substance satisfactory to CRC and the Title Insurer;
(iii) an affidavit that Seller is not a "foreign person", in form and substance
required by the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder;
(iv) an affidavit that the Parcel is not "property" under the Indiana
Responsible Property Transfer Law, as amended, in form and substance
satisfactory to CRC;
(v) a bill of sale, with warranties of right, title, and interest, conveying and
assigning the Equipment to CRC, in form and substance reasonably satisfactory
to CRC;
(vi) an assignment of any warranties and guaranties with respect to the
Improvements and/or the Equipment, to the extent that such warranties and
guaranties are assignable, in form and substance reasonably satisfactory to
CRC;
(vii) a certification that all the representations and warranties set forth in
Section 9 remain true and accurate in all respects as of the Closing Date;
(viii) a land contract owner's policy of title insurance issued by the Title Insurer
that conforms with the Commitment (as hereinafter defined) and is subject only
to the Permitted Exceptions (as hereinafter defined) (the "Land Contract Title
Policy");
(ix) copies of such resolutions, consents of members, partners, and/or
shareholders, and other evidence as CRC or the Title Insurer reasonably may
request, establishing that: (i)the persons executing and delivering the foregoing
documents have been empowered and authorized by all necessary action of
Seller; and (ii) the execution and delivery of such documents, and the
conveyance of the Property to CRC in accordance with the terms and conditions
of this Agreement, have been authorized by Seller; and
(x) such other customary documents or instruments as CRC or the Title
Insurer may request in connection with closing the Transaction.
(b) CRC. At the closing, CRC shall execute (if applicable) and deliver to Seller:
(i) the Land Sale Contract, in form and substance reasonably satisfactory
to Seller and CRC; and
(H) such other customary documents or instruments as the Title Insurer may
request in connection with closing the Transaction.
6. Taxes. Seller shall pay all: (a) general and special governmental and utility assessments; and (b) real
estate taxes; with respect to the Property (collectively, the "Taxes"); that are or were payable prior to the Closing
Date. CRC shall pay all Taxes that first become due and payable on or after the Closing Date.
7. Conditions. The obligations of CRC hereunder are subject to the satisfaction of the following conditions
within: (a)five days after the Execution Date (the "Due Diligence Period"); or(b)such other period as is set forth
in this Section; unless waived in writing by CRC.
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(a) Property .Information. Seller shall provide to CRC full and complete copies of: (i) all
reports and results of surveys, borings, soil, water and engineering tests, and other tests,
inspections, examinations, studies, and investigations conducted by or for, or in the possession
of, Seller, its affiliates, or its property manager with respect to the Property, including, without
limitation: (A) the existing ALTA survey of the Parcel and the Improvements (the "Survey"); and
(B) the current title policy with respect to the Property; (ii) documentation with respect to
remediation, removal, encapsulation, or abatement of any: (A) hazardous waste, material, or
substance(including,without limitation,asbestos);or(B)underground storage tank;on, in,under
or from the Parcel,the Improvements,any part thereof,or any groundwater thereunder(the"Prior
Abatement"); and (Hi) the Mortgage.
(b) Survey. CRC:(i)at its expense shall have obtained an update of the Survey;and (ii)shall
have determined that the Survey, as updated: (A)describes the perimeter of the Parcel as a single
parcel without gaps, gores, or overlaps; (B) conforms to the standards for an ALTA survey; (C) is
certified: (1) as of a current date; and (2) to CRC and the Title Insurer; (D) shows that: (1) no
encroachments exist; and (2)the Improvements are located entirely within the bounds of the Parcel;
(E) shows no condition that materially interferes with Purchaser's intended use and redevelopment
of the Property (the "Intended Use"); and (F) establishes that no part of the Parcel is located within:
(1) a "flood hazard zone", as shown on the applicable Federal Insurance Rate Map; or (2) a
"floodway"or"flood plain", as shown on the applicable Flood Control District Map. The Survey shall
establish the precise legal description of the Parcel for purposes of title insurance and closing
documents.
(c) Title Receipt. CRC, at Seller's expense, shall obtain a title insurance commitment for the
Properly issued by the Title Insurer (the "Commitment"), together with legible copies of all
instruments that evidence the exceptions identified in the Commitment.
(d) Title Review. CRC shall have determined that the Title Insurer shall: (i) insure, for the full
amount of the Purchase Price, marketable, indefeasible'fee simple title to the Parcel and the
Improvements in the name of CRC, free of the standard exceptions and all other exceptions
except the Permitted Exceptions; and (ii) issue such customary endorsements as CRC
reasonably deems to be necessary or appropriate. For purposes of this Agreement, "Permitted
Exceptions" shall mean: (i) the lien of current real estate taxes and assessments not delinquent;
(ii) the Land Sale Contract; and (iiii) the other matters accepted by CRC in writing; provided that,
in no event shall: (i) the Permitted Exceptions include: (A) mortgage liens (other than the PNC
Mortgage),judgment liens, mechanics' or similar liens (other than the Land Sale Contract) caused
by,through,or on account of Seller;or(B)delinquent tax or assessment liens; all of which Seller shall
cause to be released at closing; (ii) CRC be deemed to have accepted or waived any such liens; or
(Hi)the Land Contract or the Land Contract Title Policy be made subject to any such liens.
(e) Environmental Assessment. CRC, at its expense, shall have obtained a Phase One
Environmental Assessment of the Parcel and the Improvements and, if required by the Phase
One Environmental Assessment, a Phase Two Environmental Assessment of the Parcel and the
Improvements (the "Environmental Assessment"). The Environmental Assessment shall be
completed in accordance with current ASTM standards, including an investigation: (i) for the
presence of PCB's, asbestos, lead, and radon; and (ii) to determine whether the Property is
subject to the jurisdiction of any governmental agency due to its environmental condition.
(f) Environmental Condition. CRC shall have determined that:(i)there is not now,and there
has not been, any contamination or pollution of the Parcel, the Improvements, any part thereof,
or any groundwater thereunder by any hazardous waste, material, or substance; (ii) there is not
now, and there have not been, any underground storage tanks located on, in, or under the Parcel
or the Improvements; (iii) there is no asbestos on or in the Parcel or the Improvements that
requires removal, encapsulation, or abatement; (iv)the Property is not subject to the jurisdiction
of any governmental agency due to its environmental condition; and (v)any Prior Abatement was
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completed properly, and in compliance with all applicable federal, state, or local laws, statutes,
or ordinances, or governmental rules, regulations, or orders (the "Laws").
(g) Physical Condition. CRC, at its expense, shall have determined that: (i) the
Improvements are: (A)structurally sound; (B)in good condition and repair;and (C)in compliance
with all Laws; (ii) the mechanical, electrical, plumbing, heating, air conditioning, and ventilating,
and other systems within or serving the Improvements are in good working order, condition, and
repair, and are free from any material defect or deficiency; (iii)the Parcel has rights of direct access
to and from public streets sufficient for the Intended Use;(iv)the Parcel is served by utilities sufficient
in capacity and volume for the Intended Use; (v) the zoning of the Parcel is proper and appropriate
for the Intended Use; and (vi) it will be able to obtain all permits and approvals necessary for the
Intended Use.
(h) Leases. If there are any leases, licenses, and other agreements with respect to the
possession, use, or occupancy of the Parcel and/or the Improvements, except for those leases
set forth on Exhibit B (the teases"), then, prior to closing, Seller shall: (i)terminate all the Leases
effective no later than the Closing Date,to the extent that the foregoing can be terminated without
Seller incurring a penalty; and (ii) cause the tenants thereunder to vacate the Property; provided
that, to the extent that Seller does not terminate all the Leases effective no later than the Closing
Date (including those with respect to which a penalty would be incurred), the condition set forth
in this Subsection shall be deemed to be unsatisfied.
(i) Feasibility. CRC shall have determined that the acquisition and redevelopment of the
Property for the Intended Use is economically feasible.
(j) Closing Conditions. As of the Closing Date, no action or proceeding before a court or
other governmental agency or officer shall be pending, and no such action or proceeding shall
be threatened, that might impair the value of the Property or prevent or impair the use or
operation by CRC of the Property. There shall be no breach of this Agreement by Seller, and,
as of the Closing Date, all the representations and warranties set forth in Section 9 shall be true
and accurate in all respects. At the closing: (i) Seller shall cause to be released all mortgages
encumbering the Property; and (ii) Purchaser shall be able to obtain a land contract purchaser's
policy of title insurance subject only to the Permitted Exceptions and otherwise consistent with
the Commitment.
If one or more of the conditions set forth in this Section is not(or cannot be)timely and completely satisfied,then
CRC, at its sole option, may cancel this Agreement and all its obligations hereunder by a written notice to Seller.
8. Inspection. CRC and its agents,employees,and contractors shall have the right to enter upon the Parcel
and the Improvements at reasonable times to conduct all surveys, borings, tests, inspections, examinations,
studies,and investigations as CRC deems to be necessary or appropriate(the"Inspections"). CRC promptly shall
repair any damage to the Property resulting from the Inspections.
9. Representations. Seller represents and warrants to CRC that:
(a) Seller: (i) owns fee simple title to the Property; and (ii) has the right and authority to convey
the Property to CRC in accordance with the terms and conditions of this Agreement;
(b) to Seller's knowledge, there is no condemnation or similar proceeding that is pending or
threatened against the Property or any part thereof;
(c) Seller has not received any notification from any governmental agency, authority, or
instrumentality of any pending or threatened assessments on or against the Property;
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(d) after the Execution Date, Seller shall not permit any lien or other encumbrance to attach to
or affect the Property, except for the lien of current real estate taxes and assessments;
(e) after the Execution Date, Seller shall not enter into, modify, amend, or terminate any lease,
easement, or other document, instrument, or agreement affecting or concerning the Property or the
interest of Seller therein, except for cancellation and termination of the Leases;
(f) to Seller's knowledge,there are no violations of any Laws affecting the Property(and no fact
or circumstance exists that might give rise to such a violation);
(g) after the Execution Date, Seller shall maintain the Property: (i) in safe and good order,
condition, and repair, normal wear and tear excepted; and (ii) in compliance with all Laws so that, as
of the Closing Date, there are no violations thereof;
(h) to the best of Seller's knowledge,there is not now,and there has not been, any contamination
or pollution of the Parcel,the Improvements, any part thereof,or any groundwater thereunder, by any
hazardous waste, material, or substance in violation of any Laws; and
(i) to the best of Seller's knowledge, there are not now, and there have not been, any
underground storage tanks on, in, or under the Parcel or the Improvements.
10. Risk of Loss. If: (a) the Property, or any part thereof, is: (i) damaged or destroyed by fire or other
casualty; or(ii)taken by condemnation; or(b)any notice of condemnation is given at any time prior to the Closing
Date; then CRC, at its sole option, may terminate this Agreement or proceed with closing. If CRC elects to
proceed with closing,then:(a)CRC may apply the proceeds of any insurance policy to reduce the Purchase Price;
and (b) the Purchase Price shall be reduced further by the amount of any deductible.
11. Notices. All notices permitted or required to be given hereunder shall be in writing, and shall be deemed
to be delivered when: (a) delivered personally; (b) sent by facsimile, with electronic confirmation of receipt; or
(c) sent by national overnight courier; to the following addresses: to CRC at: 30 West Main Street, Suite 220,
Carmel, Indiana 46032, Facsimile: 317-844-3498, Attn: Les Olds, with a copy to: Karl P. Haas, Wallack Somers &
Haas, P.C.,One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile:317-231-9900; and to Seller at:
9589 Valparaiso Court, Indianapolis, Indiana 46268, Attn: John Levinsohn, Facsimile:317-396-0688, with a copy to:
Bruce E. Smith, 930 East 66th Street, Indianapolis, Indiana 46220, Facsimile: 317-472-1802. Either party may
change its address for notice by written notice delivered to the other party as provided above.
12. Specific Performance. Seller agrees that: (a) money damages are not an adequate remedy for Seller's
breach of this Agreement; and (b) and CRC shall be entitled to: (i)the remedy of specific performance to enforce
the terms and conditions of this Agreement; and (ii)attorneys'fees and court costs incurred by CRC in connection
therewith. If: (a)Seller breaches this Agreement; and (b)CRC does not elect the remedy of specific performance;
then CRC may terminate this Agreement.
13. Brokers. CRC and Seller hereby represent, warrant, and agree that: (a) they have not dealt with any
broker in connection with the Transaction; and (b) no fee, commission, or similar compensation shall be payable
by CRC or Seller to any broker, person, or entity as a result of any agreement or action by Seller or CRC,
respectively.
14. Authority. Each of the persons executing this Agreement on behalf of CRC and Seller represents and
certifies that: (a) he or she is empowered and authorized by all necessary action of CRC and Seller, respectively,
to execute and deliver this Agreement; (b)he or she has full capacity, power, and authority to enter into and carry
out this Agreement; and (c) the execution, delivery, and performance of this Agreement have been authorized
by, and this Agreement is the legal, valid, and binding obligation of, CRC and Seller, respectively.
15. Successors. CRC shall not assign this Agreement without the prior written consent of Seller, which
consent shall not be withheld unreasonably; provided that, without the prior written consent of Seller, CRC may
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assign this Agreement to another agency or instrumentality of the City. This Agreement otherwise shall be binding
upon, and shall inure to the benefit of, CRC and Seller, and their respective successors and assigns.
16. Miscellaneous. The terms and conditions of this Agreement shall be governed by, and construed in
z accordance with, the laws of the State of Indiana. The section headings shall not be considered in any way to
s affect the interpretation of this Agreement. This Agreement is the final expression of the complete agreement
; between CRC and Seller. No agreement by and between CRC and Seller to modify or amend this Agreement
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P,F shall be binding and enforceable, unless all terms and conditions of the modification or amendment are set forth
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in writing and signed by CRC and Seller. This Agreement shall not be construed to create a contractual relationship
with, give rights or benefits to, or create a cause of action in favor of, anyone other than the parties hereto. All
,"'°;_ representations, warranties, and agreements contained in this Agreement shall survive the closing of the
Transaction, and CRC and Seller each shall indemnify and hold harmless the other from and against any and all
claims, actions, liabilities, losses,damages, injuries, costs, and expenses (including,without limitation,attorneys'
`.-.4 a,. fees and court costs) incurred as a result of, or in connection with, any breach of any representation, warranty,
•`-gip or agreement contained in this Agreement. All exhibits referenced herein are attached hereto and incorporated
herein by this reference.
IN WITNESS WHEREOF, CRC and Seller have executed this Agreement as of the Execution
Date.
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EXHIBIT A
Depiction and/or Description of the Premises
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LEGAL DESCRIPTION
Tract I
Part of the East Half of the Southeast Quarter of Section 25, Township 18 North, Range 3 East in
Hamilton County, Indiana, more particularly described as follows:
Beginning at the Northwest corner of the East Half of the Southeast Quarter of Section 25, Township 18
North, Range 3 East; thence South on and along the West line of said East Half, 732.44 feet; thence East
parallel with the North line of said East Half 174.5 feet; to the intersection of the East line of Canada Dry
Lane and the South line of Second Street in the Town of Carmel, Indiana, said point being 326.0 feet
West of the West right of way line of the Monon Railroad; thence South on and along the East line of
Canada Dry Lane 290.0 feet to the place at beginning of this tract; thence East parallel with the South line
of Second Street 171.7 feet to a point which is 163.0 feet West of the West right of way line of the Monon
Railroad; thence South parallel with the West right of way line of the Monon Railroad, 242.0 feet; thence
Westerly 179.0 feet to a point on the East line of Canada Dry Lane, which point is 246.0 feet South of the
place of beginning; thence North on and along said East line of Canada Dry Lane 246.0 feet to the place
of beginning; containing 0.98 acre, more or less.
Tract 2
Perpetual roadway easement as more particularly described as follows:
Part of the East Half of the Southeast Quarter of Section 25, Township 18 North, Range 3 East in
Hamilton County, Indiana, more particularly described as follows:
Commencing at the Northwest corner of the East Half of the Southeast Quarter of Section 25, Township
18 North, Range 3 East; thence North 89 degrees 52 minutes 30 seconds East (assumed bearing) on
and along the North Line of said Quarter 391.44 feet; thence South 00 degrees 00 minutes 00 seconds
parallel with the West right of way line of the Monon Railroad 732.44 feet to the Beginning Point of this
description; thence North 89 degrees 52 minutes 30 seconds East parallel with said Quarter Section
North line 20.00 feet; thence South 00 degrees 10 minutes 30 seconds West 260.61 feet; thence South
16 degrees 34 minutes 10 seconds East 49.65 feet; thence South 05 degrees 52 minutes 55 seconds
West 64.70 feet; thence North 48 degrees 48 minutes 30 seconds West 36.93 feet; thence North 00
degrees 10 minutes 30 seconds East 348.20 feet to the Beginning Point; containing 0.19 acres, more or
less.
Tract 3 •
Perpetual easement for ingress, egress and the loading and unloading of shipping vehicles more
particularly described as follows:
Part of the East Half of the Southeast Quarter of Section 25, Township 18 North, Range 3 East in
Hamilton County, Indiana, more particularly described as follows:
Commencing at the Northwest corner of the East half of the Southeast Quarter of Section 25, Township
18 North, Range 3 East; thence North 89 degrees 52 minutes 30 seconds East (assumed bearing) on
and along the North line of said Quarter 325.2 feet; thence South 00 degrees 00 minutes 00 seconds
parallel with the West Right of Way line of the Monon Railroad 1023.45 feet to the Beginning Point of this
Description; thence South 48 degrees 48 minutes 30 seconds East 124.53 feet; thence South 01 degrees
02 minutes 00 seconds East 104.81 feet; thence North 88 degrees 42 minutes 25 seconds West 94.89
feet; thence North 00 degrees 00 minutes 00 seconds parallel with the West Right of Way line of said
Monon Railroad 184.01 feet to the Beginning Point; containing 0.31 acre, more or less.
NOTE: The acreage,is included above for descriptive purposes only. The policy, when issued. should not
be construed as insuring the amount of acreage contained therein.
End of Legal Description
EXHIBIT B
Leases of the Parcel to Survive Closing
Lease Agreement by and between BobbyJohn, LLC (Landlord) and Club Canine, LLC (Tenant) dated July
31, 2006 and amended by First Lease Amendment dated February 15, 2011