CONTRACT FOR PURCHASE OF REAL ESTATE
______("Purchaser"), agrees to purchase from______(collectively, the "Seller"), and Seller agrees to sell to Purchaser, the real estate located in Marion County, Indianapolis, Indiana, consisting of two (2) separate parcels containing in the aggregate approximately 62.48 acres and which is generally outlined in black on ExhibitA attached hereto and incorporated herein (the legal description of which real estate will be subject to precise determination by survey as provided in Section7.1 below), together with all rights, interests, privileges and easements appertaining thereto (the foregoing is hereinafter collectively referred to as the "Real Estate"), subject to and upon the following terms and conditions:
1.Earnest Money Deposit. Within three (3) days after the AcceptanceDate (as hereinafter defined) of this Contract for Purchase of Real Estate (“Contract”), Purchaser shall deposit ______($______)(the "Earnest Money") with ______(the “Title Company”). The “Acceptance Date” shall be the latter of the dates reflected opposite the signatures appearing on the signature page of this Contract. The Earnest Money shall be held by the Title Insurer in an interest bearingescrow account and interest earned on the Earnest Money shall be deemed part of the Earnest Money. The Earnest Money shall be refunded or forfeited in accordance with the terms contained in this Contract, and, if all of the terms and conditions of this Contract are satisfied or waived and the transaction is closed, then the Earnest Money shall be applied to the payment of the Purchase Price. The remaining provisions of this Contract notwithstanding, if the Purchaser sends a Cancellation Notice (as hereinafter defined) during the initial Due Diligence Period (as hereinafter defined) then $______of the Earnest Money shall be paid by the Title Company to Seller to compensate the Seller for its costs incurred in connection with this transaction.
2.Purchase Price. The purchase price of the Real Estate (the "Purchase Price") shall be______($______),less the Earnest Money and other credits, reductions and prorations for which this Contract provides.
3.Payment of Purchase Price. On closing this transaction, Purchaser shall pay Seller the Purchase Price in cash or by wire transfer, less the Earnest Money and other credits, reductions and prorations for which this Contract provides.
4.Closing Date. Subject to all other terms and conditions set forth in this Contract, the transaction shall be closed not later than fifteen (15) days after the expiration of the Due Diligence Period (as such term is defined in Section7 below), with the exact date of closing (the "Closing Date") to be specified by Purchaser in a written notice delivered to Seller at least three (3) days prior to the closing. The closing will take place at the office of the Title Insurer or such other place as the parties may mutually agree upon in writing. Any closing fee charged by the Title Insurer shall be split evenly between Purchaser and Seller. Purchaser shall pay the cost of recording the Special Warranty Deed and Seller shall pay the cost of filing the Indiana Sales Disclosure form. Each party hereto shall pay the fees of any attorney or other consultant hired by such party in connection with the purchase of the Real Estate.
5.Closing Documents. At closing, Seller shall deliver: (a)a fully executed Special Warranty Deed conveying marketable fee simple title to the Real Estate to Purchaser free and clear of any and all liens (other than the lien of non-delinquent real estate taxes), but subject to all other encumbrances, easements, restrictions, covenants and other title defects of public record, (b)a fully executed vendor's affidavit; (c)a non-foreign affidavit; (d)an Indiana Sales Disclosure form in form and substance required by Indiana law; and (e)any and all other documents contemplated by this Contract or appropriate and customary to consummate the sale of the Real Estate. Purchaser and Seller acknowledge that the transactions contemplated by this Contract may be subject to the provisions of the Indiana Responsible Property Transfer Law (Ind. Code 132531, etseq.). Seller agrees that it shall either (i)comply with the provisions of the Indiana Responsible Property Transfer Law and provide the Purchaser with a "disclosure document" as and when required by the Indiana Responsible Property Transfer Law, or (ii)provide the Purchaser with a certification on or before the Closing Date that the transaction contemplated by this Contract is not subject to the provisions of the Indiana Responsible Property Transfer Law in a form and content acceptable to Purchaser. In the event Seller provides Purchaser with a "disclosure document" and Purchaser thereafter declines to accept the transfer of the Real Estate (as permitted by the Indiana Responsible Property Transfer Law), Purchaser may cancel this Contract by written notice to Seller, in which event the Earnest Money shall be immediately refunded to Purchaser by the Title Insurer.
6.Taxes, Assessments and Prorations. Purchaser assumes and agrees to pay: (a)all assessments for improvements becoming a lien after the Closing Date; and (b)its pro rata portion of the real estate taxes assessed for and becoming a lien during the calendar year in which closing occurs (based upon the number of days remaining in such calendar year after the Closing Date). Seller shall pay: (a)all assessments for improvements not assumed by Purchaser; (b)both installments of real estate taxes payable during the calendar year in which closing occurs; (c)its pro rata portion of the real estate taxes assessed for and becoming a lien during the calendar year in which closing occurs (based upon the number of days in such calendar year prior to and including the Closing Date); and (d)all delinquent real estate taxes and assessments (and penalties and interest thereon, if any). The present tax rate and assessed values shall be used for the purposes of the prorations under this Section if the applicable tax rate and assessed values have not been determined and shall be final. Any taxes or assessments (and penalties and interest thereon, if any) which are either: (a)not assumed by Purchaser and which are not due and payable at the time of closing; or (b)delinquent at time of closing, shall be allowed to Purchaser as a credit against the Purchase Price at closing. All other ordinary income and ordinary operating expenses of the Real Estate, including but not limited to, public utility charges, shall be prorated as of the Closing Date. After the Closing Date, if the Purchaser removes or damages any of the crops growing on the Real Estate, the Purchaser shall be responsible to pay the lessees under the Farm Leases (as hereinafter defined) the harvest value of the removed or damaged crops.
7.Conditions of Performance. The Real Estate is being sold by Seller “AS IS” and “WHERE IS”. Purchaser's obligations under this Contract are subject to the timely and complete satisfaction of each of the following conditions, unless waived in writing by Purchaser. For purposes of this Contract, the term "Due Diligence Period" shall mean the date which is sixty (60) days after the Acceptance Date.
7.1Survey. On or before the expiration of the Due Diligence Period, Purchaser shall, at its cost, have obtained a survey of the Real Estate conforming to the Minimum Standard Detail Requirements for an ALTA/ACSM Survey (the "Survey"). The Seller shall provide to Purchaser a copy of their most recent survey. At the closing, the cost of any recertification or update of the existing survey shall be shared by the Seller and Purchaser.
7.2Title Insurance. On or before the expiration of the Due Diligence Period, Purchaser shall, at its cost, have obtained a current title insurance commitment for the Real Estate issued by the Title Insurer, in which commitment the Title Insurer shall agree to: (a) insure for the full amount of the Purchase Price merchantable and marketable fee simple title to the Real Estate, free of all exceptions (including, without limitation, the standard exceptions), except only those matters described in Section 5 (a) above; and (b) issue such endorsements as Purchaser may reasonably request (the "Title Commitment"). At closing, Purchaser shall receive a credit against the Purchase Price for the amount of the premium for the policy to be issued pursuant to the Title Commitment. Purchaser shall pay the cost of all title endorsements.
7.3Condition of Real Estate. Purchaser, at its cost and expense and prior to the expiration of the Due Diligence Period, shall have determined, in its sole discretion, that: (a)the Real Estate enjoys adequate rights of access to and from public ways, roads and streets; (b)there are no conditions existing on or with respect to the Real Estate which would materially adversely affect Purchaser's intended use or development of the Real Estate or require unusually costly development techniques; (c)all utilities necessary or appropriate for Purchaser's intended use and development are available at, or can be extended to, the property lines in sufficient quantities, pressures and/or capacities for Purchaser's intended use and development, without hookup, tap-in or other charges, excepting only the nominal charges normally incurred and charged by the applicable utility providers; and (d) there is no evidence of any contamination of the Real Estate by any hazardous or special wastes, substances, materials, constituents, pollutants or contaminants (as defined by federal, state or local laws, statutes, ordinances, rules or regulations) or conditions existing on or near the Real Estate that may give rise to any future civil, criminal or administrative environmental proceedings or investigations with respect to the Real Estate or Seller's use thereof or which require remediation or other curative actions.
7.4Governmental Approvals. On or before the expiration of the Due Diligence Period, Purchaser, at its cost and expense, shall have determined in its sole discretion that the current zoning of the Real Estate will permit Purchaser's intended use, development and operation of the Real Estate or Purchaser shall have obtained or determined in its sole discretion that it can obtain a final rezoning of the Real Estate from its present classification to a classification permitting Purchaser's intended use, development and operation of the Real Estate. Purchaser, at its cost and expense and prior to the expiration of the Due Diligence Period, shall have obtained or determined in its sole discretion that it can obtain all abatements, incentives, permits, approvals, variances, vacations, releases and other authorizations desired, necessary or appropriate for Purchaser's intended use, development and operation of the Real Estate. Seller shall cooperate with Purchaser, and upon Purchaser’s request, shall execute such applications, petitions, plats, instruments or other documents that are necessary, and take whatever action is reasonably necessary, to assist Buyer in obtaining the rezoning, variances, permits, consents and approvals, all at no expense to Seller; provided, however, the Seller shall have no such obligation unless the actions required by the Purchaser are either: (a) approved by Seller; or (b) conditioned on this transaction closing as herein provided.
8.Nonperformance. If any of the Closing Conditions set forth in Section 7 are not (or will not be) satisfied on or before expiration of the Due Diligence Period, then Purchaser either may:(a) cancel this Contract by a written notice delivered to Seller on or before expiration of the Due Diligence Period (the “Cancellation Notice”); (b) waive any of said Closing Conditions that are unsatisfied and proceed to closing; or (c) extend the initial Due Diligence Period for sixty (60) days by delivering to Seller a written notice of extension(the “First Extension Notice”), along with payment of a______($______) non-refundable (except as provided below in the event of a default by Seller) extension fee (the “First Extension Fee”), which First Extension Fee will be deposited with the Title Agent and credited toward the Purchase Price if the purchase closes. If Purchaser does not deliver to Seller a Cancellation Notice, a written waiver of the Closing Conditions, or the First Extension Notice prior to the expiration of the initial Due Diligence Period, then all of the Closing Conditions set forth in Section 7 shall be deemed to be satisfied or waived.
If Purchaser delivers to Seller the First Extension Notice and has not satisfied the Closing Conditions set forth in Section 7 within the Due Diligence Period as extended by the First Extension Notice, Purchaser may either: (a) cancel this Contract by a written notice delivered to Seller prior to the expiration of the Due Diligence Period as extended by the First Extension Notice; (b) waive any such Closing Conditions set forth in Section 7 and proceed to closing; or (c) extend the initial Due Diligence Period as previously extended by the First Extension Notice for sixty (60) days by delivering to Seller a written notice of extension (the “Second Extension Notice”), along with a payment of a______($______) non-refundable (except as provided belowin the event of a default by Seller) extension fee (the “Second Extension Fee”), which Second Extension Fee will be deposited with the Title Agent and credited toward the Purchase Price if the purchase closes. If Purchaser does not deliver to Seller a Cancellation Notice, a written waiver of the Closing Conditions, or the Second Extension Notice prior to the expiration of the initial Due Diligence Period as extended by the First Extension Notice, then all Closing Conditions set forth in Section7 shall be deemed satisfied or waived.
If Purchaser elects to extend the initial Due Diligence Period pursuant to the First or Second Extension Notices, the Earnest Money and all other sums paid as the First and Second Extension Fees shall become non-refundable, excepting only upon default of Seller.
9.Representations and Warranties. To Seller’s knowledge, without any duty of independent investigation as to the accuracy or completeness of the following representations and warranties, Seller hereby represents and warrants to Purchaser that: (a)there is no condemnation or similar proceeding which is pending or threatened against the Real Estate or any part thereof; (b)Seller has not received any notification from any governmental agency, authority or instrumentality of any pending or threatened assessments on or against the Real Estate for the cost of improvements to be made with respect to the Real Estate or any part thereof; (c)after the Acceptance Date, Seller will not create, permit or suffer any lien or other encumbrance to attach to or affect the Real Estate and improvements thereon, except for the lien of non-delinquent real estate taxes; (d)there are no claims, actions, suits, proceedings or investigations pending or threatened with respect to or in any manner affecting the Real Estate or Seller's ownership thereof; (e)no work has been performed or is in progress at, and no materials have been furnished to, the Real Estate or any portion thereof which is presently the subject of or which might give rise to mechanics', materialmen's or other liens affecting the Real Estate or any portion thereof; (f)Seller is the fee simple owner of the Real Estate and has not sold, assigned, transferred, leased, subleased, encumbered or conveyed any right, title or interest whatsoever in or to the Real Estate, except for farm leases which will terminate in 200__ (“Farm Leases”); and (g)prior to the closing, except for Farm Leases, Seller shall not sell, assign, transfer, lease, sublease, encumber or convey any right, title or interest whatsoever in or to the Real Estate or any portion thereof without Purchaser's prior written consent, nor shall Seller amend, modify, extend, terminate or alter any currently existing agreement or document relating to the Real Estate without Purchaser's prior written consent.
10.Condemnation. If any time after the Acceptance Date, the Real Estate shall be condemned, in whole or in part, or any notice of condemnation shall be given, then Purchaser, at its sole option, may cancel this Contract or proceed with closing, which decision must be made by written notice to Seller within five (5) business days after becoming aware of such condemnation and, if no notice is given to Seller, then the Purchaser shall be deemed to have elected to proceed to closing and have waived its right to terminate the Contract by virtue of the condemnation. If Purchaser elects to proceed with closing, then Purchaser shall be entitled to participate in all condemnation proceedings and: (a)apply the proceeds of any condemnation award received by Seller to reduce the Purchase Price; and/or (b)require Seller to assign its right to receive all condemnation proceeds to Purchaser. If Purchaser elects to cancel this Contract, as provided in this Section 10, and such cancellation occurs (x) within sixty (60) days of the Acceptance Date, the Earnest Money deposited shall be immediately refunded to Purchaser; or (y) more than sixty (60) days after the Acceptance Date, the Earnest Money deposited, and any Extension Fees shall be immediately paid over to Seller.
11.Inspection. Purchaser, its employees, agents and independent contractors shall have the right, after 48 hours advance telephone notice to Seller in each instance, to enter upon the Real Estate and conduct all tests and examinations which Purchaser deems necessary. Purchaser shall indemnify and hold harmless Seller, its employees, officers, and partners from and against any and all losses, damages and liabilities (including damage to crops), and including reasonable attorneys’ fees, arising as a result of the inspections that Purchaser, its employees, agents and independent contractors conduct on or about the Real Estate.