Real Property Purchase and Sale Agreement Green Valley, Arizona
Green
Valley, Arizona
This
Real
Property Purchase and Sale Agreement (this “Agreement”)
is
made and entered into as of May 20, 2005 (the “Effective
Date”),
by
and between PIONEER HEALTH MANAGEMENT CORPORATION, an Arizona corporation (or
its assigns as permitted herein) (“Buyer”),
and
EMERITUS CORPORATION, a Washington corporation (“Seller”).
Seller
is
the owner of certain property in Pima County, Arizona. Buyer desires to purchase
from Seller and Seller desires to sell to Buyer the Property (as hereinafter
defined) on the terms and conditions set forth below.
In
consideration of the mutual covenants and promises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE
I. PROPERTY
Seller
hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase
from Seller, the obligations of each of them subject to the terms and conditions
set forth herein, the following:
1.1 Land.
That
certain parcel of unimproved real property more particularly described on
Exhibit A
hereto
(the “Land”).
1.2 Appurtenances.
All
rights, privileges and easements, including without limitation all minerals,
oil, gas and other hydrocarbon substances on and under the Land, all development
rights, air rights, water rights and all easements, rights-of-way, preliminary
plat approvals, permits, licenses and other rights appurtenant to or used in
connection with the Land (collectively, the “Appurtenances”).
The
items
described in Sections 1.1 and 1.2 are herein collectively referred to
as
the “Property.”
ARTICLE
II. PURCHASE
PRICE
2.1 Purchase
Price.
The
purchase price for the Property (the “Purchase
Price”)
shall
be Five Hundred Twenty-Four Thousand Dollars ($524,000), subject to adjustments,
if any, as provided for under this Agreement. The Purchase Price shall be paid
by Buyer in good and immediately available United States funds on the Closing
Date (as defined below).
2.2 Escrow
Holder.
Chicago
Title Insurance Company, 0000 Xxxx xx Xxxxxxx Tower, 000 Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000, Attn: Xxxxx Xxxxxx, Phone No.:
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000.000.0000,
Fax No.: 000.000.0000 (“Escrow
Holder”
in its
capacity as escrow holder and “Title
Company”
in its
capacity as title insurer) has been designated as Escrow Holder hereunder by
mutual agreement of Seller and Buyer. Promptly upon receipt of a fully executed
copy of this Agreement, Escrow Holder shall open a closing escrow in accordance
with the terms of this Agreement.
2.3 Xxxxxxx
Money.
Not
later than two business days following the Effective Date, Buyer shall deposit
with Escrow Holder a xxxx xxxxxxx money deposit in the amount of $5,000 (the
“Xxxxxxx
Money”).
At
the Closing, the Xxxxxxx Money shall be credited against the Purchase Price.
In
the event this transaction fails to close as a result of Seller’s default, the
failure of any condition precedent to Buyer’s obligations, or any reason other
than Buyer’s default, the Xxxxxxx Money shall be returned to Buyer. In the event
this transaction fails to close as a result of Buyer’s default, Escrow Holder
shall deliver the Xxxxxxx Money to Seller and retention of the Xxxxxxx Money
by
Seller shall be Seller’s sole and exclusive remedy for Buyer’s failure to close.
Escrow Agent shall deposit the Xxxxxxx Money in an interest-bearing account
at a
financial institution approved by Buyer and Seller, with all interest accruing
thereon becoming a part of the Xxxxxxx Money.
ARTICLE
III. TITLE
3.1 Review
of Title.
Within
ten business days after the Effective Date, Seller shall provide Buyer with
a
preliminary commitment for title insurance for the Property issued by the Title
Company, together with complete and legible copies of all exceptions and
encumbrances noted thereon (the “Preliminary
Commitment”)
and a
copy of the most recent survey of the Property in Seller’s possession (the
“Survey”).
Buyer
shall have thirty days after the receipt of the Preliminary Commitment to advise
Seller in writing of any encumbrances, restrictions, easements or other matters
in the Preliminary Commitment or Survey (collectively, “Exceptions”)
to
which Buyer objects. All Exceptions to which Buyer does not object in writing
within the thirty-day period shall be deemed accepted by Buyer.
If
Buyer
objects to any Exceptions within the thirty-day period, Seller shall advise
Buyer in writing within five business days after receipt of Buyer’s written
objections: (a) which Exceptions Seller will remove at Closing,
(b) which Exceptions the Title Company has agreed to insure around in
the
title policy to be issued at Closing (together with the proposed form of
endorsement), and (c) which Exceptions will not be removed by Seller
or
insured around by Title Company.
Buyer’s
failure to terminate this Agreement prior to the expiration of the Inspection
Period shall be deemed an acceptance of the condition of title, subject to
Seller’s removal of those exceptions that Seller agrees to remove pursuant to
this Section.
The
term
“Permitted Exceptions”
as used
hereafter means: (a) the Exceptions accepted or deemed accepted by Buyer
as
provided above; and (b) the lien of real estate taxes for the current
calendar year, which shall be prorated to the Closing Date as provided in
Section 7.5.
3.2 Title
Insurance.
Seller
shall cause Title Company to deliver to Buyer at Closing an ALTA Standard (or,
at Buyer’s request, Extended) Coverage Owner’s Policy of title insurance issued
by Title Company in the amount of the Purchase Price, dated the date of Closing,
insuring Buyer’s title subject to no exceptions other than the standard printed
exceptions and the Permitted Exceptions (the “Title
Policy”).
Buyer
shall be responsible for payment of the additional premium if it requests an
extended coverage policy). The Title Policy shall contain, at Buyer’s sole
expense, such endorsements as Buyer may specify.
3.3 Conveyance
of the Property.
At
Closing Seller shall convey to Buyer fee simple title to the Property by
execution and delivery of a special warranty deed to the Property in the form
of
Exhibit B
hereto
(the “Deed”),
with
such modifications to its form as may be required to comply with Arizona law,
subject only to the Permitted Exceptions.
ARTICLE
IV. INSPECTION
OF DOCUMENTS AND
EVALUATION
OF THE PROPERTY
Seller
shall provide to Buyer for inspection and copying within five business days
following Effective Date, or such other time as provided herein, the originals
or copies of the following (the “Due
Diligence Materials”):
4.1 Preliminary
Commitment.
The
Preliminary Commitment for title insurance referenced in
Section 3.1.
4.2 Survey.
Any
prior surveys in Seller’s possession.
4.3 Approvals.
All
preliminary plat plans, surveys, reports, traffic studies, consultant studies,
utility studies or correspondence, and all applications for governmental
approvals, permits or licenses, including any zoning variances or special use
permits, if any, and applications related thereto.
4.4 Environmental
Reports.
All
studies and reports in Seller’s possession relating to the environmental
condition of the Property and all correspondence or claims from any person
or
entity related thereto.
4.5 Other
Matters.
Any
other document or matter in Seller’s possession reasonably requested by Buyer
that relates to the Property.
The
term
“Seller’s
possession”
as used
above means in Seller’s physical possession, in the possession of Seller’s
property manager, or otherwise readily available to Seller without cost other
than copying and delivery charges.
Buyer
shall have until 5:00 p.m. Seattle, Washington, time on the date that
is
sixty days after the Effective Date to inspect the Property and to review and
approve the Due Diligence Materials (the “Inspection
Period”),
except the procedure and time period set forth in Section 3.1 shall
apply
to approval of the Preliminary Commitment and the Exceptions thereto.
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During
the Inspection Period, Buyer at its sole expense may, subject to the terms
of
this Agreement, inspect the Property’s physical condition, verify to its
satisfaction the financial information provided to it and conduct any
environmental or other inspections as it deems appropriate, including (but
not
limited to) geotechnical or soil borings. Buyer shall have the right to enter
upon the Property only in accordance with the following terms and
conditions:
(a) This
Agreement has not been terminated;
(b) Any
entry
upon the Property shall be only for the purpose of inspections, studies and
surveys upon prior written notice to Seller;
(c) Following
any testing or inspections, Buyer shall, at its own expense, restore the
Property to its condition immediately prior to such testing or inspections;
and
(d) Buyer
shall indemnify, defend and hold Seller harmless from any claims, liens, causes
of action, or obligations by persons or entities not a party to this Agreement
that arise out of or are in any way related to Buyer’s activities on the
Property prior to Closing, including without limitation Seller’s costs, expenses
and attorney’s fees, except: (i) to the extent such claims arise out of
Seller’s negligence or (ii) the discovery and reporting as required by law
of any hazardous or environmental condition on the Property. Notwithstanding
anything to the contrary herein, this indemnity shall survive termination of
this Agreement.
If
Buyer
is not satisfied in its sole discretion with the results of its inspection
of
all of the foregoing, Buyer may terminate this Agreement by delivering written
notice of such termination to Seller at any time prior to expiration of the
Inspection Period (the “Termination
Notice”).
If
Buyer fails to deliver the Termination Notice prior to expiration of the
Inspection Period, then the Inspection Period contingency will be deemed waived
and this Agreement shall continue in full force and effect in accordance with
its terms. If Buyer timely delivers the Termination Notice, then this Agreement
will terminate, Buyer shall promptly return to Seller the Due Diligence
Materials and copies of any third-party reports concerning the Property prepared
on Buyer’s behalf (the “Reports”),
the
Xxxxxxx Money shall be returned to Buyer promptly after Buyer’s return of the
Due Diligence Materials, and the parties shall have no further obligations
hereunder except for those obligations that expressly survive the termination
of
this Agreement.
ARTICLE
V. CONDITIONS
PRECEDENT TO CLOSING
Buyer’s
obligations under this Agreement are expressly conditioned on, and subject
to
satisfaction of, the following conditions precedent:
5.1 Performance
by Seller.
Seller
shall have timely performed all material obligations required by this Agreement
to be performed by it.
5.2 Title
Policy.
Title
Company shall be ready, willing, and able to issue the Title
Policy.
5.3 Representations
and Warranties True.
Seller’s representations and warranties contained herein shall be true and
correct in all material respects.
The
conditions set forth in Sections 5.1 through 5.3 above are intended
solely
for Buyer’s benefit. If any of the foregoing conditions are not satisfied as of
the Closing Date, Buyer shall have the right at its sole election either to
waive the condition in question and proceed with the purchase or, in the
alternative, to terminate this Agreement, whereupon this Agreement shall
terminate, Buyer shall return to Seller the Due Diligence Materials and copies
of the Reports, the Xxxxxxx Money shall be returned to Buyer promptly after
Buyer’s delivery to Seller of such materials, and the parties shall have no
further obligations hereunder except for those obligations that expressly
survive termination of this Agreement.
Seller’s
obligations under this Agreement are expressly conditioned on, and subject
to
satisfaction of, the following conditions precedent:
5.4 Performance
by Buyer.
Buyer
shall have timely performed all obligations required by this Agreement to be
performed by it.
5.5 Representations
and Warranties True.
Buyer’s
representations and warranties contained herein shall be true and correct in
all
material respects.
5.6 Board
Approval.
Seller
shall have secured the approval of its Board of Directors of the transaction
provided for herein; provided, however, in the event Seller has not advised
Buyer prior to the end of the Inspection Period that this condition has not
been
satisfied, it shall be deemed to have been satisfied and waived by
Seller.
The
conditions set forth in Sections 5.4 through 5.6 above are intended
solely
for Seller’s benefit. If any of the foregoing conditions are not satisfied as of
the Closing Date, Seller shall have the right at its sole election either to
waive the condition in question and proceed with the sale or, in the
alternative, to terminate this Agreement. No such termination, however, shall
waive Seller’s right to retain the Xxxxxxx Money if Buyer is then in default
under this Agreement.
ARTICLE
VI. OPERATIONS
PENDING CLOSING
6.1 Operations
Pending Closing.
At all
times prior to the Closing or the sooner termination of this Agreement, Seller
agrees to maintain the Property free from waste and neglect, in accordance
with
applicable law and consistent with its past management practices.
6.2 Condition
of Title.
At all
times prior to the Closing or sooner termination of this Agreement, Seller
agrees with respect to all or any portion of the Property: (a) not to
further mortgage, encumber, or otherwise change the Permitted Exceptions;
(b) not to enter into any written or oral contracts or agreements that
would be binding on Buyer after Closing without the prior written consent of
Buyer; and (c) not to enter into any contracts or agreements to sell
or
otherwise transfer the Property.
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ARTICLE
VII. CLOSING
AND ESCROW
7.1 Closing.
The
Closing hereunder (the “Closing”)
shall
be held and delivery of all items to be made at the Closing under the terms
of
this Agreement shall be made at the Title Company’s offices on the date (the
“Closing
Date”)
that
is fifteen days after the earlier of (a) the expiration of the Inspection
Period or (b) Buyer’s delivery to Seller of a written notice waiving the
Inspection Period contingency.
7.2 Delivery
by Seller.
On or
before the Closing Date, Seller shall deposit with Escrow Holder the
following:
(a) The
duly
executed and acknowledged Deed ready for recordation on the Closing
Date;
(b) Affidavit
executed by Seller in the form of Exhibit C
hereto
(the “FIRPTA
Affidavit”);
and
(c) Any
reconveyance documents required to eliminate of record any existing deeds of
trust and other security documents that are a lien on the Property and any
customary affidavits or certifications required by Title Company to issue the
Title Policy.
7.3 Delivery
by Buyer.
On or
before the Closing Date Buyer shall deposit with Escrow Holder the Purchase
Price (as adjusted pursuant to Sections 7.5 and 7.6).
7.4 Title
Policy; Other Instruments.
Seller
shall cause the Title Company to issue the Title Policy at Closing or as soon
thereafter as practicable. Seller and Buyer shall each deposit such other
instruments as are reasonably required by Escrow Holder or otherwise required
to
close the escrow and consummate the purchase of the Property in accordance
with
the terms hereof.
7.5 Prorations.
All
revenues and all expenses of the Property, including but not limited to, real
property taxes, drainage district service charges, water, sewer and utility
charges, and other expenses normal to the operation and maintenance of the
Property, but excluding insurance premiums, shall be prorated as of
11:59 p.m. on the Closing Date. Real property tax prorations will be
on the
basis of taxes paid or payable in the year of Closing. Utility deposits shall
be
credited to Seller.
7.6 Closing
Costs and Expenses.
Buyer
and Seller shall each pay their own attorneys’ fees and expenses to perform
their obligations hereunder in addition to the following:
(a) Seller
shall pay:
(i) The
owner’s standard coverage portion of the premium for the Title
Policy;
(ii) All
real
estate excise taxes, and other transfer taxes applicable to the transfer of
the
Property, if any; and
(iii) One-half
of the fees for the Escrow Holder.
(b) Buyer
shall pay:
(i) One-half
of the fees for the Escrow Holder;
(ii) All
costs
and expenses of Buyer’s consultants and investigations during the Inspection
Period;
(iii) The
premium differential between owner’s standard coverage and owner’s extended
coverage for the Title Policy plus the cost of all endorsements requested by
Buyer;
(iv) All
costs
of the new survey (or updates to the existing Survey) of the Property and all
costs, if any, of any required replatting or subdivision of the Property;
and
(v) All
recording costs for the Deed.
7.7 Closing
Statements.
The
prorations shall be made on the basis of a written closing statement submitted
by Escrow Holder to Buyer and Seller prior to the Closing Date and approved
by
Buyer and Seller, which approval shall not unreasonably be withheld. In the
event any prorations or apportionments made hereunder shall prove to be
incorrect for any reason, then any party shall be entitled to an adjustment
to
correct the same. Any item that cannot be prorated because of the unavailability
of information shall be tentatively prorated on the basis of the best data
then
available and re-prorated between Buyer and Seller when the information is
available. Notwithstanding the foregoing, any adjustments or re-prorations
shall
be made, if at all, within one hundred eighty days after the Closing
Date.
7.8 Delivery
Outside of Escrow.
Seller
shall deliver to Buyer at Closing outside of the Closing escrow the originals
of
the Due Diligence Materials, copies of all books and records of Seller used
in
the operation and permitting of the Property, and such other records and items
related to the Property as reasonably requested by Buyer.
ARTICLE
VIII. REPRESENTATIONS
AND WARRANTIES
Seller
and Buyer make the following representations and warranties:
8.1 Seller’s
Representations.
Seller
represents and warrants to Buyer as of the Effective Date:
(a) Litigation.
There
is no claim, litigation, or proceeding pending against Seller, or to Seller’s
current actual knowledge threatened against Seller, relating to the Property
or
the transactions contemplated by this Agreement.
(b) No
Prior Options, Sales or Assignments.
Seller
has not granted any options nor obligated itself in any manner whatsoever to
sell the Property or any portion thereof to any party other than
Buyer.
(c) Special
Assessments.
Seller
has not been notified during Seller’s ownership of the Property of contemplated
improvements to the Property or the area surrounding the Property that would
result in the assessment of a special improvement or similar lien against the
Property.
(d) Existing
Agreements.
Seller
has entered into no contracts, agreements or understandings (whether written
or
oral) relating to the Property that will be binding on Buyer after Closing,
except for the Permitted Exceptions.
(e) Environmental
Compliance.
During
its ownership of the Property, Seller has not caused or permitted the Property
to be used to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Substances. Seller has no
current actual knowledge of any Hazardous Substances on or adjacent to the
Property. For the purposes hereof, “Hazardous Substances”
shall
mean petroleum and petroleum derivatives and products, and any substance,
chemical, waste or other material that is listed, defined or otherwise
identified as “hazardous” or “toxic” under any federal, state or local ordinance
or law or any administrative agency rule or determination.
(f) Authority.
Seller
is a Washington corporation duly organized and validly existing under the laws
of the State of Washington. This Agreement and all documents to be executed
by
Seller at Closing have been or will be duly authorized, executed, and delivered
by Seller and are binding on and enforceable against Seller in accordance with
their terms, subject to the terms of Section 5.6 above.
The
representations and warranties herein that are based upon the current actual
knowledge of Seller are based upon the current actual knowledge of Xxxxxxx
X.
Xxxxxxx, who is Seller’s Director of Real Estate Finance, without any imputation
of knowledge as a result of agency or constructive knowledge principles, and
without any obligation on Seller’s part to undertake any investigation or take
any affirmative action to acquire any knowledge.
Seller’s
representations and warranties, except those set forth in (g) above, shall
survive Closing for a period of six months and shall terminate as of the end
of
such period except to the extent that Buyer advises Seller in writing of an
alleged breach thereof prior to such termination date. Subject to the foregoing,
Seller hereby agrees to defend, protect, indemnify and hold Buyer harmless
from
and against any and all loss, damage, liability or expense, including attorneys’
fees and costs, Buyer may suffer as a result of (y) any breach of or
inaccuracy in the foregoing representations and warranties and (z) any
claim by any person or party for personal injury
4
(including
death) or damage to property arising out of facts and circumstances occurring
(or alleged to have occurred) prior to the Closing.
BUYER
IS
PURCHASING THE PROPERTY “AS IS WHERE IS” IN ITS PRESENT CONDITION. BUYER HAS THE
OPPORTUNITY TO INSPECT THE PROPERTY AND DOCUMENTATION IN SELLER’S POSSESSION AS
PROVIDED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH ABOVE AND THE SPECIAL
WARRANTY OF TITLE TO BE SET FORTH IN THE DEED, SELLER MAKES NO REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO, AND SHALL HAVE NO LIABILITY
FOR: (a) THE PROPERTY’S CONDITION OR ITS SUITABILITY FOR HABITATION OR FOR
BUYER’S INTENDED USE; (b) ANY APPLICABLE BUILDING, ZONING, OR FIRE LAWS OR
REGULATIONS OR WITH RESPECT TO COMPLIANCE THEREWITH OR WITH RESPECT TO THE
EXISTENCE OF OR COMPLIANCE WITH ANY REQUIRED PERMITS, IF ANY, OF ANY
GOVERNMENTAL AGENCY; (c) THE AVAILABILITY OR EXISTENCE OF ANY WATER,
SEWER,
OR UTILITIES, ANY RIGHTS THERETO, OR ANY WATER, SEWER OR UTILITY DISTRICTS;
(d) ACCESS TO ANY PUBLIC OR PRIVATE SANITARY SEWER OR DRAINAGE SYSTEM;
OR
(e) THE PRESENCE OF ANY HAZARDOUS SUBSTANCES AT THE PROPERTY, INCLUDING
WITHOUT LIMITATION ASBESTOS OR UREA-FORMALDEHYDE, OR THE PRESENCE OF ANY
ENVIRONMENTALLY HAZARDOUS WASTES OR MATERIALS ON OR UNDER THE PROPERTY. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SELLER SHALL HAVE NO LIABILITY WITH
RESPECT TO THE CONDITION OF THE PROPERTY UNDER COMMON LAW, OR ANY FEDERAL,
STATE, OR LOCAL LAW OR REGULATION, INCLUDING BUT NOT LIMITED TO THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980
AS
AMENDED, 42 U.S.C.A. SECTIONS 9601 ET SEQ., OR ANY SIMILAR APPLICABLE STATE
STATUTE, AND BUYER HEREBY RELEASES AND WAIVES ANY AND ALL CLAIMS THAT BUYER
HAS
OR MAY HAVE AGAINST SELLER WITH RESPECT TO THE PROPERTY’S CONDITION. BUYER
ACKNOWLEDGES THAT IT IS GIVEN THE OPPORTUNITY UNDER THIS AGREEMENT TO FULLY
INSPECT THE PROPERTY AND BUYER ASSUMES THE RESPONSIBILITY AND RISKS OF ALL
DEFECTS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUCH DEFECTS AND
CONDITIONS, IF ANY, THAT CANNOT BE OBSERVED BY CASUAL INSPECTION. THIS PARAGRAPH
SHALL SURVIVE CLOSING.
8.2 Buyer’s
Representations.
Buyer
represents and warrants to Seller as of the Closing Date as
follows:
(a) Status.
Buyer
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Arizona.
(b) Authority.
This
Agreement and all documents to be executed by Buyer at Closing have been duly
authorized, executed and delivered by Buyer and are binding on and enforceable
against Buyer in accordance with their terms.
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Buyer
hereby agrees to defend, protect, indemnify and hold Seller harmless from and
against any and all loss, damage, liability or expense, including attorneys’
fees and costs, Seller may suffer as a result of (y) any breach of or
any
inaccuracy in the foregoing representations and warranties and (z) any
claim by any person or party for personal injury (including death) or damage
to
property arising out of facts and circumstances occurring (or alleged to have
occurred) on or after the Closing.
ARTICLE
IX. LOSS
BY FIRE OR OTHER CASUALTY: CONDEMNATION
In
the
event that all or any portion of the Property is damaged or destroyed by any
casualty or is the subject of a taking or condemnation under the provisions
of
eminent domain law after the Effective Date but prior to the Closing Date,
Buyer
may terminate this Agreement and the Xxxxxxx Money shall be returned to Buyer
promptly after Buyer’s delivery to Seller of the Due Diligence Materials and
copies of any Reports. If Buyer does not elect to terminate this Agreement,
then
Seller shall have no obligation to repair or replace any damage or destruction
caused by the foregoing and the Closing shall occur (subject to the terms of
this Agreement) and no adjustment shall be made to the Purchase Price, but
in
the event of a taking, Seller shall assign to Buyer its rights to any
condemnation proceeds attributable to such taking of a portion of the Property
and shall not make any settlements without Buyer’s prior written
approval.
ARTICLE
X. POSSESSION
Possession
of the Property shall be delivered to Buyer on the Closing Date.
ARTICLE
XI. DEFAULT;
REMEDIES
11.1 Default
by Buyer.
If
Buyer fails, without legal excuse, to complete the purchase of the Property
in
accordance with the terms of this Agreement (all conditions to Buyer’s
obligations having been satisfied or waived) or otherwise defaults hereunder,
Seller’s sole and exclusive remedy shall be to retain the Xxxxxxx Money as
liquidated damages. Buyer expressly agrees that the delivery to and the
retention of the Xxxxxxx Money by Seller represents a reasonable estimation
of
the damages in the event of Buyer’s default, that actual damages may be
difficult to ascertain and that this provision does not constitute a penalty.
The foregoing limitation on Buyer’s liability shall not apply to Buyer’s
indemnity obligations under this Agreement or to its obligations to be performed
or enforced after Closing.
11.2 Default
by Seller.
If
Seller fails, without legal excuse, to complete the purchase of the Property
in
accordance with the terms of this Agreement (all conditions to Seller’s
obligations having been satisfied or waived) or otherwise defaults hereunder,
Buyer may elect, as its sole and exclusive remedy, to either (i) seek
specific performance of Seller’s obligations hereunder or (iii) terminate
this Agreement and secure the return (promptly after Buyer’s return to Seller of
the Due Diligence Materials) of the Xxxxxxx Money and any accrued interest
thereon,
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after
which neither party shall have any further rights or obligations hereunder
except those obligations that expressly survive the termination of this
Agreement.
11.3 Attorneys’
Fees.
In the
event either party brings an action or any other proceeding against the other
party to enforce or interpret any of the terms, covenants or conditions hereof,
the party substantially prevailing in any such action or proceeding shall be
paid all costs and reasonable attorneys’ fees by the other party in such amounts
as shall be set by the court, at trial and on appeal.
ARTICLE
XII. MISCELLANEOUS
12.1 Brokers
and Finders.
Each
party represents to the other that no broker or finder has been involved in
this
transaction except Xxxxxx X. Xxxxx of Sonoran Ventures (the “Broker”)
whose
commission shall be paid in full by Seller pursuant to a separate written
agreement, provided, however, this provision shall not create any rights in
the
Broker or any other third parties. In the event of a claim for broker’s fee,
finder’s fee, commission or other similar compensation in connection with this
Agreement other than the Broker, Buyer, if such claim is based upon any
agreement alleged to have been made by Buyer, hereby agrees to indemnify Seller
against any and all damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys’ fees and costs) that Seller may sustain or
incur by reason of such claim. Seller, if such claim is based upon any agreement
alleged to have been made by Seller, hereby agrees to indemnify Buyer against
any and all damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys’ fees and costs) that Buyer may sustain or
incur by reason of such claim. Notwithstanding anything to the contrary herein,
the provisions of this Section 12.1 shall survive the termination of
this
Agreement or the Closing. Buyer hereby discloses to Seller that X.X. Xxxxxxxxx,
beneficial owner of Buyer, is a licensed real estate broker.
12.2 Notices.
All
notices, demands, requests, consents and approvals that may, or are required
to,
be given by any party to any other party hereunder shall be in writing and
shall
be deemed to have been duly given if delivered personally, sent by a nationally
recognized overnight delivery service, electronically transmitted (with a
duplicate sent by another method approved under this paragraph), or if mailed
or
deposited in the United States mail and sent by registered or certified mail,
return receipt requested, postage prepaid to:
To
Buyer
at: Pioneer
Health Management Corporation
0000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxx Xxxxxxxxx
Telephone
No: 925.631.9100 ext. 206
Facsimile
No: 925.871.4046
7
To
Seller
at: Emeritus
Corporation
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attn:
Xxxx Xxxxxxx
Phone
Number: 000.000.0000
Fax
Number: 000.000.0000
with
a
copy to: Xxxxxx
Pepper & Shefelman PLLC
0000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Xxxxx X. XxXxxxxxx
Phone
Number: 000.000.0000
Fax
Number: 000.000.0000
or
to
such other addresses as either party hereto may from time to time designate
in
writing and deliver in a like manner. All notices shall be deemed complete
upon
actual receipt or refusal to accept delivery.
12.3 Amendment,
Waiver.
No
modification, termination or amendment of this Agreement may be made except
by
written agreement. No failure by Seller or Buyer to insist upon the strict
performance of any covenant, agreement, or condition of this Agreement or to
exercise any right or remedy shall constitute a wavier of any such breach or
any
other covenant, agreement, term or condition. No waiver shall affect or alter
this Agreement, and each and every covenant, agreement, term and condition
of
this Agreement shall continue in full force and effect with respect to any
other
then existing or subsequent breach thereof. All the terms, provisions, and
conditions of this Agreement shall inure to the benefit of and be enforceable
by
Seller’s or Buyer’s permitted successors and assigns.
12.4 Survival.
All
provisions of this Agreement that involve obligations, duties, or rights to
be
performed after the Closing Date or the recording of the Deed, and all
representations, warranties, and indemnifications made in or to be made pursuant
to this Agreement shall survive the Closing Date and/or the recording of the
Deed to the extent provided herein.
12.5 Captions.
The
captions of this Agreement are for convenience and reference only and in no
way
define, limit or describe the scope or intent of this Agreement.
12.6 Merger
of Prior Agreements.
This
Agreement and the exhibits hereto constitute the final and complete agreement
between the parties with respect to the purchase and sale of the Property and
supersede all prior and contemporaneous agreements, letters of intent and
understandings between the parties hereto relating to the subject matter of
this
Agreement.
12.7 No
Joint Venture.
It is
not intended by this Agreement to, and nothing contained in this Agreement
shall, create any partnership, joint venture or other arrangement between Buyer
and Seller. No term or provision of this Agreement is intended to be, or shall
be, for the benefit of any person, firm, organization or corporation not a
party
hereto, and no such other person, firm, organization, or corporation shall
have
any right or cause of action hereunder.
8
12.8 Governing
Law; Time.
This
Agreement and the rights of the parties hereto shall be governed by and
construed in accordance with the internal laws of the State of Washington.
“Day”
as used
herein means a calendar day and “business
day”
means
any day on which commercial banks are generally open for business. Any period
of
time that would otherwise end on a non-business day shall be extended to the
next following business day. Time is of the essence of this
Agreement.
12.9 Exhibits.
The
following exhibits are attached hereto or referenced herein and are incorporated
in this Agreement.
EXHIBIT
A - Description
of the Land
EXHIBIT
B - Form
of
Deed
EXHIBIT
C - Form
of
FIRPTA
12.10 Severability.
In case
any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such provisions had not
been
contained herein.
12.11 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of such counterparts together shall constitute one and the
same instrument. In addition, the parties hereto agree that this Agreement
may
be delivered either by a party or its counsel by fax machine to the other party
or its counsel and that signatures so transmitted constitute original signatures
and are binding on the party so signing. Upon request, the parties shall further
deliver between themselves actual originally signed copies or counterparts,
but
such further delivery, or failure thereof, shall not affect the validity or
timing of this Agreement. Original signatures may be removed from any
counterpart and attached to an identical counterpart for purposes of assembling
fully executed originals.
12.12 Assignment.
Buyer’s
rights under this Agreement are not assignable without Seller’s prior written
consent, which shall not unreasonably be withheld, except that Buyer may assign
this Agreement without Seller’s consent to any business entity of which Buyer,
its principal shareholders, or any entity or entities controlled by Buyer or
its
principal shareholders is a general partner or managing member. No assignment
shall relieve Buyer of its obligations under this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
[Remainder
of page intentionally left blank; signatures follow]
9
Signature
Page for Real Estate Purchase and Sale Agreement
Green
Valley, Arizona
|
SELLER:
|
EMERITUS
CORPORATION, a Washington
corporation
|
By:
Xxxxxxx
X. Xxxxxxx, Director of Real Estate Finance
|
BUYER:
|
PIONEER
HEALTH MANAGEMENT CORPORATION, an Arizona
corporation
|
By:
X.X.
Xxxxxxxxx, President
50517147.03
10
EXHIBIT
A
Description
of the Land
A
portion
of the San Xxxxxxx de la Canoa Land Grant, Pima County, Arizona, described
as
follows:
Commencing
at the point of intersection of the easterly right of way line of La Canada
Drive and the northerly line of Xxxxxx Xxxxx Xxxxxx Xxxx Xx. 0 according to
the
plat recorded in Book 16 of Maps and Plats at Page 76, records of Pima County,
Arizona;
Thence
North 84 degrees 13 minutes 03 seconds East, along said Northerly line, a
distance of 553.00 feet to the Point of Beginning of the herein described
parcel;
Thence
continue North 84 degrees 13 minutes 03 seconds East along said Northerly line,
a distance of 300.00 feet to the Westerly line of Green Valley Townhouses No.
7
according to the plat recorded in Book 29 of Maps and Plats at Page 7, records
of Pima County, Arizona;
Thence
North 00 degrees 03 minutes 02 seconds East, along said Westerly line, a
distance of 585.00 feet;
Thence
South 84 degrees 13 minutes 03 seconds West, 300.00 feet;
Thence
South 00 degrees 03 minutes 02 seconds West, 585.00 feet to the Point of
Beginning.
EXHIBIT
A
11
EXHIBIT
B
Form
of Deed
Filed
at
the request of,
and
when
recorded return to:
_____________________
_____________________
_____________________
_____________________
SPECIAL
WARRANTY DEED
For
and
in consideration of TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt, sufficiency, and adequacy of which are
hereby acknowledged, EMERITUS CORPORATION, a Washington corporation (“Grantor”)
whose address is 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, does hereby
convey and warrant to _____________________________, a ____________________
(“Grantee”), the real property situate in Pima County, Arizona, and described on
Exhibit
A
attached
hereto and incorporated herein by this reference, SUBJECT TO the matters set
forth on Exhibit
B
attached
hereto and incorporated herein by this reference (the “Permitted
Exceptions”).
GRANTOR
does hereby bind itself and its successors to warrant and defend the title
as
against the claims of all persons whomsoever claiming by, through, or under
Grantor, but not otherwise, subject to the Permitted Exceptions.
[Remainder
of page intentionally left blank; signature page follows]
**[insert
signature and acknowledgment blocks and exhibits]**
EXHIBIT
B
12
EXHIBIT
C
Form
of
FIRPTA
FIRPTA
CERTIFICATE
(FOREIGN
INVESTMENT IN REAL PROPERTY TAX ACT)
ENTITY
TRANSFEROR
Section 1445
of the Internal Revenue Code provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign person. To inform
the
transferee that withholding of tax is not required upon the disposition of
a
U.S. real property interest by ___________________________, a [TYPE
OF
ENTITY ],
(the
“Transferor”), the undersigned Transferor hereby certifies that:
1. Transferor
is not a foreign corporation, foreign partnership, foreign trust, or foreign
estate (as those items are defined in the Internal Revenue Code and Income
Tax
Regulations);
2. Transferor’s
U.S. Employer Identification Number is ________________; and
3. Transferor’s
office address is:
Transferor
understands that this certificate may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Title:
Date:
13
