AGREEMENT OF PURCHASE AND SALE Between UNITED TRUST FUND LIMITED PARTNERSHIP,

EXHIBIT 10.1

AGREEMENT OF PURCHASE AND SALE

Between

UNITED TRUST FUND LIMITED PARTNERSHIP,

as Purchaser,

and

PULASKI BANK

as Seller,

Dated May 21, 2008

EXHIBIT A-1—Legal Description of 12300 Olive Boulevard, St. Louis, MO property

EXHIBIT A-2—Legal Description of One Pulaski Center Drive, St. Louis, MO property

EXHIBIT B — Allocation of Purchase Price/Rent

EXHIBIT C—Lease

SCHEDULE I—Severable Property

AGREEMENT OF PURCHASE AND SALE

THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”) is made and entered into as of the 21 ^st day of May, 2008 (the “Effective Date”) by and between UNITED TRUST FUND LIMITED PARTNERSHIP, a Delaware limited partnership (“Purchaser”), and PULASKI BANK, a federally chartered savings bank (“Seller”).

W I T N E S S E T H :

For and in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto do hereby mutually covenant and agree as follows:

Section 1. Agreement To Purchase. The Purchaser agrees to purchase and the Seller agrees to sell, for the Purchase Price (as defined in Section 2 hereof) and other good and valuable consideration, and subject to and upon each and every one of the terms and conditions hereinafter set forth, the following-described property (all of which are collectively referred to as the “Premises”):

(a) fee simple interest in the two (2) parcels of land more particularly described on Exhibits A-1 and A-2 attached to this Agreement (each, a “Parcel” and collectively, the “Land”);

(b) all of the buildings, structures, fixtures, facilities, installations and other improvements of every kind and description now or hereafter in, on, over and under the Land and all plumbing, gas, electrical, ventilating, lighting and other utility systems, ducts, hot water heaters, oil burners, domestic water systems, elevators, escalators, canopies, air conditioning systems and all other building systems and fixtures attached to or comprising a part of the building, but excluding Severable Property as set forth on Schedule I hereto (the “Improvements”); and

(c) all easements, rights-of-way, appurtenances and other rights and benefits thereunto belonging, all public or private streets, roads, avenues, alleys or passways, open or proposed, on or abutting the Land, any award made to or to be made in lieu thereof, and any award for damage to the land or any part thereof by reason of a change of grade in any street, alley, road or avenue, as aforesaid (all of the foregoing being included within the term “Land”).

Section 2. Purchase Price . The purchase price to be paid to Seller for the Premises shall be Twelve Million Dollars ($12,000,000) (the “Purchase Price”) and shall be allocated to each Parcel as set forth on Exhibit B . The Purchase Price shall be paid by Purchaser by bank wire of same day funds as follows:

(a) Fifty Thousand Dollars ($50,000) (the “Initial Deposit”) shall be paid upon the execution and delivery of this Agreement to the Title Company (as defined herein);

(b) Two Hundred Thousand Dollars ($200,000) (the “Additional Deposit”) (the Initial Deposit, the Additional Deposit and all interest earned thereon shall be collectively referred to herein as, the “Earnest Money”) shall be paid to the Title Company within five(5) days of the expiration of the Due Diligence Period (as defined in Section 4 of this Agreement). Upon payment thereof, the Earnest Money will be placed in an interest-bearing account in an insured money market fund account for the benefit of Purchaser; and

(c) At Closing the balance of the Purchase Price shall be deposited with the Title Company and shall be paid to Seller.

Section 3. Lease/Rent . At Closing (as defined in Section 6 hereof), each Parcel shall be leased to Seller pursuant to a Lease Agreement (as defined in Section 7(a)(ii) hereof) and the annual rent thereunder (the “Basic Rent”) for each Parcel shall be as is set forth on Exhibit B attached hereto.

Section 4. Due Diligence Materials.

(a) With reasonable promptness, Seller, at Seller’s expense, shall deliver to Purchaser the following items which comply with the requirements set forth herein:

(i) a certified ALTA/ACSM “as built” survey (the “Survey”) of each Parcel, together with six (6) copies thereof, in form and substance reasonably satisfactory to Purchaser and prepared by a surveyor approved by Purchaser, showing such Parcel separately by metes and bounds and showing, without limitation, the location of all existing buildings and dimensions thereof and all set-back lines, all improvements and parking areas (including the number of parking spaces therein) and the location thereof and the extent of any and all existing utility and other easements on such Parcel which are shown on the title commitment or are visible from the surface.

(ii) an owner’s title insurance commitment and copies of all title exception documents referenced therein (collectively, the “Commitment”) with respect to each Parcel issued by First American Title Insurance Company, National Commercial Services, 2101 Fourth Avenue, Suite 800, Seattle, Washington 98121, Attention: Dave Stuczynski (the “Title Company”), for an ALTA Form B policy with extended coverage and such endorsements as requested by Purchaser bearing a date subsequent to the date of this Agreement. Notwithstanding the foregoing, Seller and Purchaser agree to cause the Title Company to use Pulaski Title Insurance Company as its local title agent with respect to the Commitment and the policy of title insurance;

(iii) a current and complete Phase I environmental site assessment for each Parcel (collectively, the “Environmental Audit”), which Environmental Audit is addressed to Purchaser and prepared by NPN Environmental Engineers, Inc.;

 

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(iv) “as-built” plans and specifications (to the extent that such plans and specifications are in the possession of or otherwise readily available to Seller or Seller’s agents, consultants or representatives);

(v) copies of any existing leases, if any, between Seller and tenants of the Premises (the “Subleases”);

(vi) copies of the certificate(s) of occupancy for buildings located on each Parcel; and

(vii) A letter from the governmental department having zoning jurisdiction over the Premises in the form typically delivered by such department to the effect that the Premises fully complies with all zoning, ordinances, regulations, licenses and permits required by any such governmental department having jurisdiction over the Premises.

(b) Purchaser, at Seller’s expense, shall promptly begin the selection process for qualified professionals and thereafter order the following items:

(i) a current property condition assessment on each Parcel (collectively, the “Engineering Report”) prepared by an engineering company acceptable to Purchaser; and

(ii) a current MAI appraisal of each Parcel (collectively, the “Appraisal”) prepared by an appraiser acceptable to Purchaser.

The materials referred to in subsections 4(a)(i) through 4(a)(vii) and 4(b)(i) through 4(b)(ii) are hereinafter collectively referred to as the “Due Diligence Materials.” The date upon which the last of the Due Diligence Materials in form reasonably acceptable to Purchaser are delivered to Purchaser is referred to herein as the “Delivery Date.”

Purchaser shall have until such date that is twenty (20) days after the Delivery Date (the “Due Diligence Period”) within which to object in writing to the substantive matters reflected in the Due Diligence Materials. If Purchaser shall timely provide Seller with any such objection, Seller shall within ten (10) days thereafter (i) remove or cure any such matters to which Purchaser has objected or (ii) enter into an agreement in form and substance acceptable to Purchaser to remove or cure such matters prior to Closing and proceed to Closing. If Seller shall fail to remove or cure, or agree to remove or cure, such matters to which Purchaser has objected within such ten (10)-day period or if in the judgment of Purchaser such matters cannot be cured or if any title defect appears between the expiration of the Due Diligence Period and Closing, then Purchaser may terminate this Agreement or close on both Parcels without any reduction in the Purchase Price. In the event of such termination, the Earnest Money shall be returned to Purchaser and neither party shall have any further obligation under this Agreement except as specifically set forth herein.

Section 5. Inspection; Due Diligence. During the term of this Agreement, Purchaser or its agents shall be permitted access to the Premises upon reasonable notice so long as Purchaser shall not interfere with the operations of Seller. Purchaser shall have until the

 

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expiration of the Due Diligence Period to inspect the Premises and perform whatever investigations, tests and inspections Purchaser deems reasonably appropriate. Seller shall cooperate with Purchaser’s due diligence review and shall make available to Purchaser, upon reasonable notice and during business hours, all books and records concerning the operation and maintenance of the Premises. Upon Purchaser’s request for specific information, Seller shall also make available to Purchaser (i) all public information concerning Seller’s general business affairs and (ii) financial information which would comply with Securities and Exchange Commission requirements for reporting by a public company for the most recent annual and quarterly fiscal periods of Seller. Prior to the expiration of the Due Diligence Period, Purchaser shall have the right to terminate this Agreement if Purchaser’s due diligence reveals any matters which would make the Premises or the transaction contemplated by this Agreement unacceptable to Purchaser in Purchaser’s sole discretion.

Section 6. Closing. Subject to the provisions of Section 7 of this Agreement the closing of the purchase and sale transaction contemplated by this Agreement (the “Closing”) shall occur not later than twenty-five (25) days after the expiration of the Due Diligence Period (the “Closing Date”). The Closing shall occur on the Closing Date at 10:00 a.m. in the offices of the Title Company unless another place of Closing is mutually agreed to by Seller and Purchaser.

At the Closing, and as a condition of Purchaser’s obligation to close, Seller is to convey title to each Parcel to Purchaser by a special or limited warranty deed sufficient to permit the issuance of the owner’s policy of title insurance referred to in Section 7(a)(iii) of this Agreement with any required documentary stamps affixed thereto, free and clear of any and all liens, encumbrances, covenants, conditions and restrictions, except for such exceptions as may be set forth in the Commitment delivered during the Due Diligence Period, which were not objected to by Purchaser prior to the expiration of such Due Diligence Period (the “Permitted Exceptions”).

Section 7. Conditions to Closing. (a) Purchaser shall not be obligated to close the purchase and sale transaction contemplated by this Agreement until all of the following conditions have been waived by Purchaser or satisfied:

(i) Purchaser shall have received all items referred to in Section 4 of this Agreement;

(ii) With respect to each Parcel to be acquired by Purchaser, Seller shall have executed and delivered to Purchaser (A) a total of five (5) original counterparts executed by Seller, as lessee, of a lease agreement with Purchaser, as lessor, with respect to such Parcel in form attached as Exhibit C to this Agreement (“Lease Agreement”) with modifications as may be required by applicable state law and to conform to the particular facts of such Parcel; provided, however, the rent during the Primary Term and Extended Terms, if any, shall be as indicated in Section 3 of this Agreement, together with (B) a memorandum thereof in recordable form ;

(iii) The Title Company shall have issued to Purchaser an ALTA Form B owner’s fee policy of title insurance or its equivalent for each Parcel, insuring title to

 

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such Parcel to be in the name of Purchaser as set forth herein, and a simultaneously issued ALTA lender’s policy of title insurance to Purchaser’s financial institution, if one is used, in an amount equal to the Purchase Price with respect to the owner’s policy and in an amount not in excess of the Purchase Price with respect to the lender’s policy and containing only Permitted Exceptions and otherwise consistent with the Commitment referred to in Section 4(b) of this Agreement or, in the alternative, an irrevocable commitment for the issuance thereof showing that all requirements have been satisfied;

(iv) Seller shall have delivered to Purchaser certificates in form and substance satisfactory to Purchaser evidencing the insurance coverage and policies to be carried by Seller, as lessee, under the terms of each Lease Agreement naming Purchaser or Purchaser’s nominee or assigns (if any) as additional insured;

(v) Seller shall have delivered to Purchaser evidence, which is reasonably satisfactory to Purchaser and the Title Company authorizing the sale of the applicable Parcel by Seller and authorizing the execution, delivery and performance of each Lease Agreement by Seller;

(vi) Seller shall have caused to be delivered to Purchaser and Purchaser’s financial institution with respect to this transaction, if any, an opinion or opinions by Seller’s counsel, to the effect that each Lease Agreement constitutes the legal, valid and binding obligation of Seller, as lessee thereunder, enforceable against Seller, as lessee, in accordance with its terms, subject to qualifications for bankruptcy or insolvency and principles of equity, and to such other effects as Purchaser may reasonably require;

(vii) There shall have been no material adverse change in the financial condition of Seller from the date hereof;

(viii) Seller shall have delivered to Purchaser a “nonforeign” certificate pursuant to Treas. Reg. § 1.14452T(b)(2), in form and substance satisfactory to Purchaser, or such other evidence that Seller is not a “foreign person” within the meaning of Internal Revenue Code Section 1445 as Purchaser may reasonably require;

(ix) Seller shall have caused any Subleases existing at the Closing to be subordinated to each applicable Lease Agreement pursuant to subordination agreements in form and substance satisfactory to Purchaser;

(x) All representations, warranties and covenants of Seller set forth herein shall have been true and correct in all material respects when made and Seller shall deliver to Purchaser at Closing a certificate stating that all such representations, warranties and covenants remain true and correct in all material respects at and as of the Closing; and

(xi) Seller shall have delivered to Purchaser such further documents as reasonably may be reasonably required in order to fully and legally close this transaction.

 

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(b) Seller shall not be obligated to close until all of the following conditions have been waived by Seller or satisfied:

(i) Purchaser, as lessor, shall have caused to be executed and delivered to Seller a total of five (5) original counterparts of each Lease Agreement and a recordable memorandum of each Lease Agreement;

(ii) Purchaser shall have delivered to Seller a certified copy of the resolutions of the Board of Directors of the general partner of Purchaser authorizing the purchase of the Premises and the execution, delivery and performance of each Lease Agreement;

(iii) All representations, warranties and covenants of Purchaser set forth herein shall have been true and correct in all material respects when made and Purchaser shall deliver to Seller at Closing a certificate stating all such representations, warranties and covenants remain true and correct in all material respects at and as of the Closing;

(iv) Purchaser agrees to purchase the entirety of the Premises simultaneously;

(v) Purchaser shall have wired the Purchase Price to the Title Company;

(vi) Purchaser shall have delivered to Seller such further documents as may reasonably be required in order to fully and legally close this transaction; and

(vii) Seller has confirmed with its accountants that Seller will be able to get operating lease treatment for the Lease under generally accepted accounting principles (“GAAP”); if Seller determines it will not receive operating lease treatment for the Lease under GAAP, Seller may terminate this agreement upon written notice to Purchaser; if Seller fails to give such notice of termination to Purchaser within five (5) business days from its receipt of the Appraisal, this condition shall be deemed waived by Seller.

Section 8. Prorations. In view of the continuing relationship between Seller, as lessee and Purchaser, as lessor, under each Lease Agreement, and the obligations of lessee, under the terms and conditions of each Lease Agreement, there shall be no proration of insurance, taxes, special assessments, utilities or any other costs; it being the intention of Purchaser and Seller that all such costs shall be the obligation of Seller prior to Closing and the obligation of Seller, as lessee from and after Closing.

Section 9. Risk of Casualty Loss. From the date hereof until Closing, Seller shall continue to maintain each Parcel and all other improvements in good condition and repair, and promptly notify Purchaser of the occurrence of any event known to it which materially affects the value or utility of any Parcel for its current use. Notwithstanding anything herein to the contrary, from and after the date hereof to the Closing, Seller is considered the owner of each Parcel all purposes and shall be entitled to receive all insurance proceeds and/or condemnation awards that may become payable with respect thereto. Any and all risks associated with ownership of each Parcel shall be borne by Seller from the date hereof until Closing. If any

 

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Parcel is substantially damaged or condemned as to a material part prior to the Closing Date and is not substantially repaired or restored on or before the Closing Date, Purchaser may, with respect to such Parcel, at its election, (i) terminate and cancel this Agreement in which event Seller and Purchaser shall be relieved and discharged of any further liability or obligation under this Agreement with respect to such Parcel, except as otherwise expressly set forth herein, or (ii) proceed to Closing on such Parcel in which event the occurrence shall be dealt with under the terms of the applicable Lease Agreement as if it had occurred after the commencement date of each Lease Agreement.

Section 10. Representations of Seller. Seller represents and warrants to and covenants with Purchaser as follows:

(a) Organization and Standing, Etc. Seller is a federally chartered savings bank duly organized, validly existing and in good standing under the laws of the states where required and has all requisite corporate power and authority to own and operate the Premises, to enter into this Agreement and each Lease Agreement, as the case may be, and to carry out the transactions contemplated hereby and thereby;

(b) Litigation. There are no actions or proceedings pending with respect to the Premises and no actions or proceedings pending against Seller, which in any way materially adversely affects the Premises, Seller or Seller’s ability to perform under any Lease Agreement or this Agreement, as the case may be;

(c) Leases. As of the Effective Date, no portion of the Premises is subject to any existing leasehold interest. As of Closing, no portion of the Premises shall be subject to any existing leasehold interest unless the conditions described in Section 7(a)(ix) of this Agreement shall have been satisfied;

(d) Condemnation and Compliance With Laws. Seller has received no notice from any governmental authority of any proposed condemnation of any portion of the Premises. The Premises or the use thereof is not presently and at the Closing Date will not be in material violation of or in material noncompliance with applicable codes, ordinances, regulations or laws (including, but not limited to, those relating to environmental matters); and

(e) Satisfy Conditions. Seller agrees to use its reasonable efforts to satisfy all conditions set forth in Section 7(a) of this Agreement on or prior to the Closing Date.

Section 11. Representations of Purchaser. Purchaser represents and warrants to and covenants with Seller as follows:

(a) Organization and Standing, Etc. Purchaser is a limited partnership duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to acquire the Premises, to enter into this Agreement and each Lease Agreement and to carry out the transactions contemplated hereby and thereby.

 

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(b) Litigation. There are no actions, proceedings or investigations pending involving Purchaser which question the validity of this Agreement or adversely affect Purchaser’s ability to consummate the transactions contemplated by this Agreement or each Lease Agreement;

(c) Compliance With Other Instruments. The execution, delivery and performance by Purchaser of this Agreement will not violate, or constitute a default under, any provision of Purchaser’s partnership agreement or of any agreement or other instruments to which Purchaser is a party or by which Purchaser or any of its property is bound; and

(d) Satisfy Conditions. Purchaser agrees to use its reasonable efforts to satisfy all conditions set forth in Section 7(b) of this Agreement on or prior to the Closing Date.

Section 12. Notices. All notices given or delivered under this Agreement shall be in writing and shall be validly given (a) when hand-delivered or sent by a courier or express service guaranteeing overnight delivery or (b) when delivered by facsimile or by electronic mail, with original being sent promptly as otherwise provided in (a) above, addressed as follows:

If intended for Purchaser:

c/o United Trust Fund, Inc.

Suite 1300

701 Brickell Avenue

Miami, FL 33131

Attention: Fred Berliner, Senior Vice President

Facsimile: (305) 358-4002

E-mail: fred@utf.com

With a copy to:

Kutak Rock LLP

The Omaha Building

1650 Farnam Street

Omaha, NE 68102

Attention: Walter L. Griffiths, Esq.

Facsimile: (402) 346-1148

E-mail: walter.griffiths@kutakrock.com

If intended for Seller:

PULASKI BANK

12300 Olive Boulevard

Creve Coeur, Missouri 63141

Attention: Ramsey Hamadi

Facsimile: (314) 514-0045

E-mail: ramseyhamadi@pulaskibankstl.com

 

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With a copy to:

Armstrong Teasdale LLP

One Metropolitan Square, Suite 2600

St. Louis, Missouri 63102

Attention: Daniel Wofsey

Facsimile: (314) 612-2305

E-mail: dwofsey@armstrongteasdale.com

or such other person or address which Seller or Purchaser shall have given upon notice as herein provided. Notices given by facsimile or e-mail shall be deemed to be delivered upon the day that such notices are sent. Notices given by any other means described herein shall be deemed delivered on the day after such notices are sent.

Section 13. Assignment. Upon written notice to Seller, the rights and obligations of Purchaser under this Agreement may be assigned to a third party. In any assignment which may be made by Purchaser of its rights and obligations under this Agreement, Purchaser shall remain primarily liable under this Agreement. Seller may not assign its rights under this Agreement.

Section 14. Earnest Money; Remedies.

(a) The Earnest Money shall be dealt with as provided in this Section 14(a).

(i) Subject to the provisions of Section 14(a)(ii) of this Agreement, if the Closing of the purchase and sale transaction contemplated by this Agreement shall fail to occur pursuant to the terms hereof for any reason, Title Company shall immediately return the Earnest Money, together with accrued interest thereon, to Purchaser;

(ii) If Purchaser shall be obligated by the provisions of this Agreement to consummate the purchase and sale transaction contemplated by this Agreement and shall fail to do so, Seller’s sole remedy against Purchaser shall be to receive the Earnest Money from Title Company, together with accrued interest thereon, as liquidated damages. Purchaser and Seller acknowledge that actual damages suffered by Seller in such event will be difficult or impossible to measure and that the amount of the Earnest Money, together with interest thereon, represents a good-faith estimate thereof; and

 

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(iii) At Closing, the Earnest Money, together with accrued interest thereon, shall be paid to Seller as part of the Purchase Price.

(b) If Seller shall be obligated by the provisions of this Agreement to consummate the purchase and sale transaction contemplated by this Agreement and shall fail to do so, in addition to a return of the Earnest Money, together with accrued interest thereon, Purchaser shall have the remedy of specific performance.

Section 15. Brokerage Commission. Each of the parties represents and warrants to the other that neither party dealt with, negotiated through or communicated with any broker in connection with this transaction other than Stephen V. Jacquemin of S.J. Financial Group, Inc. whose fees shall be paid by Purchaser if, as and when Closing occurs. Each party shall indemnify, defend and hold harmless the other party from and against any and all claims, loss, costs and expenses, including reasonable counsel fees, resulting from any claims that may be made against such party by any other broker claiming a commission by, through or under the other party.

Section 16. Transaction Costs. The following costs of this transaction shall be paid at or prior to Closing by Seller whether or not the transaction closes: the Appraisal, the Engineering Report, the Environmental Audit, the Survey, all title insurance and title updates, recording charges (other than those relating to any financing by Purchaser) and escrow fees. Seller and Purchaser shall each pay the fees and expenses of their own respective legal counsel.

Section 17. Miscellaneous.

(a) The provisions of this Agreement shall not be amended, waived or modified except by an instrument, in writing, signed by the parties hereto to be charged.

(b) In construing this Agreement, the singular shall include the plural, the plural shall include the singular and the use of any gender shall include every other and all genders.

(c) All sections and descriptive headings of this Agreement are inserted for convenience only and shall not affect the construction or interpretation hereof.

(d) This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but all counterparts shall together constitute one and the same instrument.

(e) This Agreement and the exhibits hereto constitute the entire understanding between the parties with respect to the Premises.

(f) The waiver of any party of any breach or default by any other party under any of the terms of this Agreement shall not be deemed to be, nor shall the same constitute, a waiver of any subsequent breach or default on the part of any other party.

 

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(g) This Agreement shall be used as instructions to the Title Company, as escrow agent, which may attach hereto its standard conditions of acceptance of escrow; provided, however, that in the event of any inconsistency between such standard conditions of acceptance and the terms of this Agreement, the terms of this Agreement shall prevail.

(h) This Agreement shall be construed and enforced pursuant to the laws of Missouri.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first set forth above.

 

 

 

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EXHIBIT A-1

LEGAL DESCRIPTION

OF

12300 OLIVE BOULEVARD, ST. LOUIS, MO

A tract of land in Fractional Section, 4, Township 45 North, Range 5 East, St. Louis County, Missouri and being described as follows: Beginning at a point in the West line of Fractional Section 4 at its intersection with the North line of a proposed Street, 50 feet wide, distant North 7 degrees 23-  ¹ / 4 minutes East. 519.79 feet North of the Northwest comer of Lot 15 of Nottingham Plat 1, a Subdivision recorded in Plat Book 117 pages 32 and 33 of the St. Louis County records; thence along said Section line, North 7 degrees 23-  ¹ / 4 minutes East, 461.97 feet, more or less, to a point of intersection with the South Right of Way line of Olive Street Road (Highway 340) as widened, distant South 7 degrees 23-  ¹ / 4 minutes West, 71.91 feet, more or less, South of centerline station 354 plus 82.26 as condemned by The State of Missouri; thence Northeastwardly along said Right of Way line, a distance of 2 feet, more or less, to a point 70 feet perpendicular distance South of centerline station 354 plus 90; thence Eastwardly along said Right of Way line, 210 feet, more or less, to a point 75 feet perpendicular distance South of centerline station 357 plus 00; thence Northeastwardly along said Right of Way line, 40 feet, more or less, to its intersection with the West line of Country Manor Lane, 50 feet wide; thence South 17 degrees 01 minutes West, 153.45 feet, more or less, along the West line of Country Manor Lane to an angle point: thence South 6 degrees 11 minutes West, 285.00 feet along said West line to a point of intersection with the North line of a proposed street, 50 feet wide; thence North 83 degrees 49 minutes West, 229.67 feet, more or less, along said North line of proposed street to the point of beginning, according to calculations made by Steele Surveying Company on March 29, 1997. Excepting therefrom that portion of the above property shown as Claymanor Dr. on Plat of Country Manor.

The above property is now known as Lot A of Country Manor, according to the plat thereof recorded in plat book 182, page 97 of the St. Louis County Records.

EXHIBIT A-2

LEGAL DESCRIPTION

OF

ONE PULASKI CENTER DRIVE, ST. LOUIS, MO

Lot B of COUNTRY MANOR ACRES SUBDIVISION, according to the plat thereof recorded in Plat Book 182 page 97 of the St. Louis County Recorder’s Office.

 

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EXHIBIT B

BASIC RENT

One Pulaski Center Drive

St. Louis, Missouri

 

 

12300 Olive Boulevard

St. Louis, Missouri

 

 

 

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EXHIBIT C

LEASE

[SEE ATTACHMENT]

 

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SCHEDULE I

SEVERABLE PROPERTY

All apparatus, personal property, trade fixtures, inventory, equipment, machinery, fittings, furniture, furnishings, chattel, materials and supplies located on and used in, or related to Seller’s business, including, but not limited to, overhead cranes mainframe computers, kitchen equipment and telephone and similar systems and articles of personal property of every kind and nature whatsoever, and any additions, replacements, accessions and substitutions thereto or therefor, and all proceeds of all of the foregoing, or any part of the foregoing used or usable in connection with any present or future operation or letting (or subletting) of the Premises or the activities at any time conducted thereon and now or hereafter owned by Seller or by any sublessee or other person or entity using all or any part of the Premises by, through, or under (or with the express or implied consent of) Seller.

 

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LEASE AGREEMENT

Between

UTF [LESSOR] LLC

as Lessor

and

PULASKI BANK

as Lessee

TABLE OF CONTENTS

 

 

ii

THIS LEASE AGREEMENT , dated as of                           , 2008 (this “Lease”), is made between UTF [LESSOR] LLC , a Delaware limited liability company (“Lessor”), and PULASKI BANK , a federally chartered savings bank (herein, together with any corporation or other entity succeeding thereto by consolidation, merger or acquisition of its assets substantially as an entirety, called “Lessee”).

ARTICLE I

Section 1.01. Lease of Premises; Title and Condition . In consideration of the rents and covenants herein stipulated to be paid and performed by Lessee and upon the terms and conditions herein specified, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the premises (the “Premises”) consisting of:

(a) that parcel of land located in                      ,                      , having an address of                      and more particularly described in Schedule A attached hereto and made a part hereof (the “Land”);

(b) all of the buildings, structures, fixtures, facilities, installations and other improvements of every kind and description now or hereafter in, on, over and under the Land, all plumbing, gas, electrical, ventilating, lighting and other utility systems, ducts, hot water heaters, oil burners, domestic water systems, elevators, escalators, canopies, air conditioning systems and all other building systems and fixtures attached to or comprising a part of the buildings but excluding all personal property now or hereafter belonging to Lessee and Severable Property (as defined in Section 3.01 hereof) (collectively, the “Improvements”); and

(c) all of Lessor’s right, title and interest, if any, in and to all easements, rights-of-way, appurtenances and other rights and benefits associated with the Land and to all public or private streets, roads, avenues, alleys or passways, open or proposed, on or abutting the Land, including, without limitation, the agreements, if any, set forth in Schedule A (the “Agreements”) (all of the foregoing being included within the term “Land”).

The Premises are leased to Lessee in their present condition without representation or warranty by Lessor and subject to the rights of parties in possession, to the existing state of title, to all applicable Legal Requirements (as defined in Section 5.02(b)) now or hereafter in effect and to Permitted Exceptions listed in Schedule A. Lessee has examined the Premises and title to the Premises and has found all of the same satisfactory for all purposes.

Section 1.02. Use . Lessee may use the Premises for any lawful purpose, provided such use shall not diminish the value of the Premises or constitute a nuisance.

Section 1.03. Term . This Lease shall be for an Interim Term beginning as of the date hereof and ending at midnight on the last day of the month including the date hereof and a Primary Term of fifteen (15) years beginning on                           , 20      , and ending at midnight on                           , 20      . The time period during which this Lease shall actually be in effect, including the Interim Term, the Primary Term and any Extended Term (as defined in

Section 1.04) for which the right to extend is exercised, as any of the same may be terminated prior to their scheduled expiration pursuant to the provisions hereof, is sometimes referred to herein as the “Lease Term.”

Section 1.04. Options To Extend the Term . Unless an Event of Default (as defined herein) has occurred and is continuing at the time any option is exercised, Lessee shall have the right and option to extend the Lease Term for four (4) additional periods of five(5) years each, each commencing at midnight on the day on which the then existing term of this Lease expires (an “Extended Term”), unless this Lease shall expire or be terminated pursuant to any provision hereof. The Primary Term and any Extended Term shall commence and expire on the dates set forth in Schedule B. Lessee shall, if at all, exercise its option to extend the Lease Term for any of the Extended Terms (each, an “Extended Term”) by giving written notice of exercise (the “Extended Term Notice”) of the option no later than 12 months prior to expiration of the then existing Lease Term. Upon the delivery of an Extended Term Notice, as applicable, the Lease Term shall be automatically extended for the next succeeding Extended Term on the terms and conditions provided herein. Upon the request of Lessor or Lessee, the parties hereto will, at the expense of Lessee, execute and exchange an instrument in recordable form setting forth the extension of the Lease Term in accordance with this Section 1.04.

Section 1.05. Rent .

(a) During the Interim Term and the first five (5) years of the Primary Term, Lessee shall pay the amounts set forth in Schedule B and thereafter during the Primary Term and any Extended Term, the CPI Rentals (as defined herein) (“Basic Rent”). Basic Rent shall be paid by wire transfer as directed by Lessor, or to such other person as Lessor from time to time may designate. Lessor shall give Lessee not less than 15 days’ notice of any change in the account or the address to which such payments are to be made. Such annual rentals shall be payable in equal monthly installments in advance on the first day of each month. Any rental payment made in respect of a period which is less than one month shall be prorated by multiplying the then applicable monthly rental by a fraction the numerator of which is the number of days in such month with respect to which rent is being paid and the denominator of which is the total number of days in such month. Lessee shall perform all its obligations under this Lease at its sole cost and expense and shall pay all Basic Rent, additional rent and any other sum due hereunder when due and payable, without notice or demand. Lessor and Lessee hereby acknowledge and agree that neither an increase nor a decrease in the square footage of leased space contained within the Premises shall affect the amount of Basic Rent to be paid by Lessee pursuant to the terms of this Lease

(b) The CPI Rentals, subject to the maximum contained in this Section 1.05(b), shall be calculated pursuant to the following Rental Adjustment Formula: Beginning with the sixth year of the Primary Term and on the first day of each year thereafter during the Lease Term (such dates each being an “Adjustment Date”), Basic Rent shall be increased by an amount equal to the “Rent Adjustment.” The Rent Adjustment shall be an amount equal to the product of (i) the percentage change (the “Percentage Change”) between the Price Index (as defined below) published for the month occurring two months prior to the month of the commencement of the fifth year of

 

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the Primary Term and the Price Index published for the month occurring two months prior to the month of the commencement of the sixth year of the Primary Term and for each year of the Lease Term thereafter the Price Index used for the immediately preceding Adjustment Date, as applicable and the Price Index published for the month occurring two months prior to the month of the applicable Adjustment Date and (ii) Basic Rent for the year immediately preceding the applicable Adjustment Date. “Price Index” shall mean the Consumer Price Index For All Urban Consumers (CPI-U), as prepared by the U. S. Bureau of Labor Statistics. In the event that the Price Index ceases to be published, its successor index as published by the same governmental agency which published the Price Index shall be substituted and any necessary reasonable adjustments made by Lessor and Lessee in order to carry out the intent of this section. In the event there is no successor index, the Lessor shall select such price index as will constitute a reasonable substitute for the Price Index. In no event shall Basic Rent be reduced nor shall the Basic Rent increase by more than 2% for any year over the previous year.

Section 1.06. Right of First Refusal . At any time after the first thirty-six (36) months of the Primary Term, and from time to time thereafter if Lessor shall desire to sell the Premises (at which time Lessor shall endeavor to notify Lessee of such desire) and shall receive a bona fide written offer from any third party, Lessor shall by written notice to Lessee, offer to Lessee the right to enter into a contract for the purchase of the Premises on the terms set forth in such bona fide written offer and Lessee shall have ten (10) business days after receipt of such notice and offer in which to accept in writing such terms and conditions. Upon any acceptance of such offer by Lessee, Lessor and Lessee shall enter into a contract for the purchase of the Premises upon the terms and conditions specified in the notice from Lessor to Lessee. In the event that Lessee shall fail to accept the terms and conditions of sale by written notification to Lessor prior to the expiration of such ten (10) -business-day period, Lessor shall thereafter be free to sell the Premises to any such unaffiliated third party pursuant to the bona fide written offer for a period of eight months. The right of first refusal contained in this Section 1.06 shall apply to each sale after the first thirty-six (36) months of the Primary Term and shall not apply to a foreclosure or similar sale of the Premises by any holder of a mortgage on the Premises or to the granting of a deed in lieu of foreclosure by Lessor to such holder and shall not apply to the subsequent sale of the Premises by a purchaser of the Premises at a foreclosure or a similar sale or by the grantee of a deed in lieu of foreclosure.

ARTICLE II

Section 2.01. Maintenance and Repair .

(a) Lessee acknowledges that it has received the Premises in good order and repair. Lessee, at its own expense, will maintain all parts of the Premises in good repair and condition and will take all action and will make all structural and nonstructural, foreseen and unforeseen and ordinary and extraordinary changes and repairs which may be required to keep all parts of the Premises in good repair and condition (including, but not limited to, all painting, glass, utilities, conduits, fixtures and equipment, foundation, roof, exterior walls, heating and air conditioning systems, wiring, plumbing, sprinkler systems and other utilities, and all paving, sidewalks, roads, parking areas, curbs and gutters and fences). Lessor shall not be required to maintain, repair or rebuild all or any

 

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part of the Premises. Lessee waives the right to require Lessor to maintain, repair or rebuild all or any part of the Premises or make repairs at the expense of Lessor pursuant to any Legal Requirement, Agreement, contract, covenant, condition or restrictions at any time.

(b) If all or any part of the Improvements shall encroach upon any property, street or right-of-way adjoining or adjacent to the Premises, or shall violate the Agreements or conditions affecting the Premises or any part thereof, or shall hinder, obstruct or impair any easement or right-of-way to which the Premises are subject, then, promptly after written request of Lessor (unless such encroachment, violation, hindrance, obstruction or impairment is a Permitted Exception) or of any person so affected, Lessee shall, at its expense, either (i) obtain valid and effective waivers or settlements of all claims, liabilities and damages resulting therefrom or (ii) if Lessor consents thereto, make such changes, including alteration or removal, to the Improvements and take such other action as shall be necessary to remove or eliminate such encroachments, violations, hindrances, obstructions or impairments.

Section 2.02. Alterations, Expansions, Replacements and Additions . Lessee may, at its expense, make additions or expansions to and alterations of the Improvements, and construct additional Improvements, provided that (i) the fair market value, the utility, the square footage or the useful life of the Premises shall not be lessened thereby, (ii) such work shall be expeditiously completed in a good and workmanlike manner and in compliance with all applicable Legal Requirements and the requirements of all insurance policies required to be maintained by Lessee hereunder, (iii) no structural alterations shall be made to the Improvements or demolitions conducted in connection therewith unless Lessee shall have obtained Lessor’s con