URBANA
CONTRACT FOR SALE OF REAL ESTATE
THIS CONTRACT of sale made this 27th day of March, 2002 by and between HRT
of Illinois, Inc., a Delaware corporation, hereinafter called "Seller", and
Emeritus Corporation, hereinafter called "Buyer".
WHEREAS, Seller desires to sell and Buyer desires to purchase the real
property more particularly described on Exhibit "A" attached hereto and made a
part hereof (the "Property'); and
NOW, THEREFORE, in consideration of the premises and the terms and
conditions hereinafter recited, Seller shall sell the Property and Buyer or
Buyer's designee shall purchase the Property as follows:
1. Seller shall sell and tender to Buyer or Buyer's designee a limited
warranty deed for the Property in the form attached hereto as Exhibit B.
2. Buyer shall pay or cause to be paid to Seller in good funds the sum
of $7,799,558.00 for the purchase of the Property.
3. Adjustments to be made at time of closing:
(i) If and to the extent that as of the Closing Date taxes for the
period prior to October 1, 2000 remain due and owing the same shall be paid by
Seller and all other taxes for the period subsequent to October 1, 2000 shall be
paid by Buyer. Rent due under the existing Lease dated September, 2000 between
Seller, as Landlord, and Buyer, as Tenant (the "Lease") shall be prorated as of
the date of Closing.
(ii) Sale to be closed on or before twenty (20) business days after
satisfaction of all conditions to Seller's obligations to sell and Buyer's
obligations to purchase the Property but in no event later than March 29, 2002.
4. Conveyance to be subject to existing building restrictions and/or
zoning ordinances and easements aforesaid and, except as otherwise provided in
Paragraph 6, all other matters of record.
5. Title Insurance provided by Seller: None
6. Buyer may review title to the Property. Seller shall have no
obligation to cure title objections other than liens of any mortgage held or
granted by Seller or its assigns, any leases entered into by Seller or
predecessors in interest with any party, including Buyer and any options to
purchase the Property granted by Seller or its predecessors in interest to any
party, including Buyer, which Seller shall cause to be released at the closing
by execution and delivery of any and all necessary release documents
(collectively, the "Release"). Seller further agrees to remove any exceptions
or encumbrances to title which are created by, under or through Seller after the
date of this Contract without Buyer's consent. Any other title objections Buyer
may cure at its sole cost and expense. Buyer may terminate this Contract if the
title materially affects Buyer's or Buyer's designee's intended use of the
Property.
7. At the closing, Seller shall furnish and deliver for delivery to
Buyer and/or Buyer's designee, the deed, the lease termination with respect to
the Lease (the "Lease Termination Agreement"), a xxxx of sale, a certificate of
non-foreign status, a closing statement, the Release and such other documents
and instruments as are customary in the jurisdiction in which the Property is
located to vest in Buyer fee simple title to the Property and release all
security interests and rights of Seller and any third party other than Buyer to
enable Buyer to secure extended coverage title insurance policies at Closing,
each in form and substance reasonably acceptable to Buyer and/or Buyer's
designee and each duly executed and acknowledged by Seller.
8. At the closing, Buyer shall furnish and deliver or cause to be
furnished and delivered for delivery to Seller:
a. Cash, wired funds or cashier's check payable to the order of Seller
representing the cash portion of the Purchase Price.
b. Such instruments as are necessary, or reasonably required by Seller
to evidence the authority of Buyer to consummate the purchase and sale
transaction contemplated hereby and to execute and deliver the closing documents
on the Buyer's part to be delivered.
c. A closing statement.
d. The Lease Termination Agreement.
e. Additionally at Closing all rents due shall be prorated and all security
deposits and tax impounds held by Seller or HR Acquisition I Corporation shall
be returned to Buyer.
f. Any excise or transfer taxes shall be paid in accordance with applicable
law; if no such law exists, in accordance with the custom of the state or county
where the Property is located.
9. Seller shall be deemed to be in default hereunder upon the
occurrence of the following events: (i) any of Seller's warranties or
representations, if any, set forth herein shall be untrue when made or at
closing; or (ii) Seller shall fail to meet, comply with, or perform any
covenant, agreement or obligation on its part required within the time limits
and in the manner required in this Contract.
10. Seller represents to Buyer the following:
a. Seller is a Maryland corporation, duly organized, validly
existing and in good standing under the laws of the State of Maryland. Seller
has all requisite corporate power and authority to own and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted and to enter into and carry out the terms of this Contract and any
documents executed in furtherance hereof.
b. Seller is duly authorized to make and enter into this Contract
and to carry out the transactions contemplated herein and is duly authorized to
make and enter into any other documents executed in furtherance hereof to which
it is or will be a party and to carry out the transactions contemplated therein.
This Contract has been duly executed and delivered by Seller and is the legal,
valid and binding obligation of Seller enforceable against Seller in accordance
with its terms, except as such enforceability may be limited by applicable
creditors rights laws and general principles of equity. All of the other
documents to which Seller is or will be a party have been, or will be by
Closing, duly executed and delivered by Seller, and each is, or will be by
Closing, a legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its terms, except as such enforceability may be
limited by applicable creditors rights laws and general principles of equity.
c. The execution, delivery and performance of this Contract and
any other documents executed in furtherance hereof to which it is or will be a
party and the consummation of the transaction thereby contemplated shall not
result in any breach of, or constitute a default under, or result in the
acceleration of, or constitute an event which, with the giving of notice or the
passage of time, or both, could result in default or acceleration of any
obligations of Seller under any permit, contract, mortgage, lien, lease,
agreement, instrument, franchise, arbitration award, judgement, decree, bank
loan or credit agreement, trust indenture or other instrument to which Seller is
a party or by which Seller may be bound or affected.
d. Except for such regulatory approvals, consents and filings, if
any, which Buyer is required to secure in connection with its acquisition of
title to the Property under any licensure or other health care law to which the
Property may be subject (as to which Seller makes no representation and has no
knowledge) (the "Health Care Approvals"), no consent or approval or other
authorization of, or exemption by, or declaration or filing with, any person and
no waiver of any right by any person is required to authorize or permit, or is
otherwise required as a condition of the execution, delivery and performance of
Seller's obligations under the Contract and any other documents executed in
furtherance hereof to which it is or will be a party.
e. The Seller is not a "foreign person" as that term is defined in
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
promulgated pursuant thereto.
f. To Seller's actual knowledge, all copies of documents furnished
or to be furnished to the Buyer by the Seller or on its behalf in connection
with this Contract and the proposed purchase and sale of the Property are true
and complete copies of the originals.
g. Other than the Lease and as set forth in documents duly
recorded in the public records of the jurisdictions in which the Property is
located, Seller has not entered into and will not enter into any other
agreements granting any person a right or interest in the Property. Seller has
not obligated and will not obligate itself in any manner whatsoever to sell the
Property or any portion thereof to any party other than Buyer or Buyer's
designee.
h. There is no claim, litigation, or proceeding pending against
Seller with respect to which Seller has been served notice (except for
mechanics' liens and other litigation, claims or proceedings arising or
occurring as a result of the actions or inactions of Buyer, its affiliates or
any Person acting by, through or under them), or, to Seller's current actual
knowledge, threatened against Seller, which could prevent or hinder the
consummation of the transactions contemplated hereby or call into question the
validity of any of the Contract and any other documents executed in furtherance
hereof to which it is or will be a party or any action taken or to be taken in
connection with the transactions contemplated thereunder or which relates to the
Property or the transactions contemplated by this Contract.
i. Seller has received no written notice of any condemnation
proceedings relating to the Property.
j. Except as set forth on Schedule 1 attached hereto, Seller has
not received written notice, nor does Seller otherwise have actual knowledge, of
any uncured violation of any federal, state, or local law relating to the
ownership, use or operation of the Property.
k. Seller is the owner of the Property and has, or at closing will
have, good and marketable title thereto free and clear of all liens and
encumbrances other than the encumbrances approved by Buyer pursuant to Paragraph
6.
11. Buyer's obligation to purchase Property hereunder is subject to the
following conditions, any one or all of which may be waived by Buyer:
(i) The title insurance company shall issue with respect to the
Property as of the Closing Date, an owner's policy of title insurance to Buyer
or Buyer's designee in the full amount of the purchase price (the "Owner's Title
Policy"), with extended coverage without survey exception and which shall
reflect only those title exceptions approved by Buyer in accordance with
Paragraph 6 and subject to such endorsements as may be reasonably requested by
Buyer or Buyer's designee.
(ii) Buyer shall have received an ALTA survey of the property
showing no encroachments not acceptable to Buyer and certified to Buyer, the
title insurance company and Buyer's designee, if applicable.
(iii) Buyer shall be satisfied in its sole discretion that the
zoning applicable to the Property permits the continued operation of the
assisted living facility located thereon and permits the reconstruction of such
facility without the need to secure further approval in the event of the damage
or destruction thereof; provided, however, this condition shall be deemed
satisfied unless Buyer advises Seller in writing at Closing that it has not been
satisfied.
(iv) No material portion of the Property shall have been damaged
or destroyed by fire or other casualty, or shall have been taken or condemned by
any public or quasi-public authority under the power of eminent domain. In the
event of damage, destruction or condemnation notwithstanding any provision
herein to the contrary, Buyer's remedies shall be limited to either (i) close
the purchase and receive the insurance or condemnation proceeds or (ii)
terminate its obligation under this Agreement and proceed to exercise its rights
pursuant to the Lease between Landlord and Buyer.
(v) Seller shall not be in default, where said default cannot be cured
by Closing, under any mortgage, contract, lease or other agreement affecting or
relating to the Property.
(vi) Seller shall have performed all of its obligations under this
Agreement that are to be performed prior to or at Closing to the extent the same
have not been waived by Buyer in accordance with the terms hereof.
(vii) Seller's representations and warranties contained in this
Agreement or in any certificate or document delivered in connection with this
Agreement or the transactions contemplated herein shall be true at and as of the
date of Closing as though such representations and warranties were then again
made.
12. Except as otherwise provided herein, Buyer shall be deemed to be in
default hereunder if Buyer shall fail to deliver, at the Closing, any of the
items specified in Section 8 hereof for any reason other than a default by
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Seller hereunder.
13. In the event Buyer or Seller shall be in default hereunder, Buyer
and Seller's remedy shall be to terminate this Contract in which event neither
party shall have any further obligations or liability hereunder, each party
waiving all other rights or remedies in the event of such default. The Lease
shall continue in full force and effect.
14. All notices, requests and other communications under this Contract
shall be in writing and shall be either (a) delivered in person, (b) sent by
certified mail, return receipt requested, (c) delivered by a recognized delivery
service of (d) sent by facsimile transmission and addressed as follows:
If intended for Seller: Xx. X. X. Xxxxxx Xxxxxx
Healthcare Realty Trust Incorporated
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxx X. Xxxxxx III, Esq.
Baker, Donelson, Bearman & Xxxxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If intended for Buyer: Emeritus Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Phone: 206/000-0000
Fax: 206/000-0000
Attn: Xxxxxxx Xxxxxxxxxx
With a copy to: The Xxxxxxxxx Group
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Phone: 206/000-0000
Fax: 206/000-0000
Attn: Xxxxx Xxxxxxxxx
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or by a
recognized delivery service, when left at the address of the recipient and if
sent by facsimile, upon receipt by the sender of an acknowledgment or
transmission report generated by the machine from which the facsimile was sent
indicating that the facsimile was sent in its entirety to the recipient's
facsimile number; provided that if a notice, request or other communication is
served by hand or is received by facsimile on a day which is not a business day,
or after 5:00 P.M. on any business day at the addressee's location, such notice
or communication shall be deemed to be duly received by the recipient at 9:00
a.m. on the first business day thereafter.
15. This Contract embodies and constitutes the entire understanding
between the parties with respect to the transactions contemplated herein, and
all prior or contemporaneous agreements, understandings, representations and
statements (oral or written) related to the transactions contemplated herein are
merged into this Contract. Neither this Contract nor any provision hereof may
be waived, modified, amended, discharged or terminated except by an instrument
in writing signed by the party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument.
16. THIS CONTRACT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATES IN WHICH THE
PROPERTY IS LOCATED. The parties agree that jurisdiction and venue for any
litigation arising out of this Contract shall be in the U.S. District Court for
the Middle District of Tennessee and accordingly, consent thereto.
17. This Contract shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
legal representatives, successors, and assigns.
18. With respect to all provisions of this Contract, time is of the
essence. However, if the first or last date of any period which is set out in
any provision of this Contract falls on a day which is not a Business Day, then,
in such event, the time of such period shall be extended to the next day which
is a Business Day.
19. In the event of any litigation between the parties under this
Contract, the prevailing party shall be entitled to reasonable attorneys' fees
and court costs at all trial and appellate levels.
THE PROPERTY IS SOLD BY SELLER AND ACCEPTED BY BUYER AS IS, WHERE IS, AND
WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER
EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EXCEPT FOR THE SPECIAL WARRANTY OF TITLE
AND OTHER SPECIFIC REPRESENTATIONS MADE BY SELLER AS HEREIN PROVIDED, IT BEING
THE INTENTION OF SELLER AND BUYER HEREUNDER TO EXPRESSLY REVOKE, RELEASE,
NEGATE, AND EXCLUDE ALL REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT
LIMITED TO, ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES AS TO
(I) THE CONDITION OF THE PROPERTY OR ANY ASPECT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES
RELATED TO SUITABILITY FOR HABITATION, MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR USE OR PURPOSE; (II) THE NATURE OR QUALITY OF CONSTRUCTION,
STRUCTURAL DESIGN, OR ENGINEERING OF THE IMPROVEMENTS; (III) THE QUALITY OF THE
LABOR OR MATERIALS INCLUDED IN THE IMPROVEMENTS; (IV) THE SOIL CONDITIONS,
DRAINAGE, TOPOGRAPHICAL FEATURES, OR OTHER CONDITIONS OF THE PROPERTY OR WHICH
AFFECT THE PROPERTY; (V) ANY FEATURES OR CONDITIONS AT OR WHICH AFFECT THE
PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE, USE, DEVELOPMENTAL POTENTIAL,
CASH FLOW, OR OTHERWISE; (VI) ALL EXPRESS OR IMPLIED REPRESENTATIONS OR
WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION
OF THE PROPERTY; (VII) ANY ENVIRONMENTAL, GEOLOGICAL, METEOROLOGICAL,
STRUCTURAL, OR OTHER CONDITION OR HAZARD OR THE ABSENCE THEREOF HERETOFORE, NOW,
OR HEREAFTER AFFECTING IN ANY MANNER ANY OF THE PROPERTY OR THE LEASED PROPERTY;
AND (VIII) ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND REPRESENTATIONS BY SELLER
WHATSOEVER.
The words "Seller" and "Buyer" when used in this Contract shall be
construed as plural whenever the number of parties to this contract so requires.
This Contract may be executed in counterparts, each of which shall
constitute an original of this Contract.
HR Acquisition I Corporation joins in the execution of this Contract for
the purpose of confirming its agreement to those provisions hereof which are
applicable to it as Landlord under the Lease.
WITNESS our hands the 27th day of March, 2002.
HRT OF ILLINOIS, INC. HR ACQUISITION I CORPORATION
By:/s/ X.X. Xxxxxx Xxxxxx By:/s/ X.X. Xxxxxx Xxxxxx
X.X. Xxxxxx Xxxxxx X.X. Xxxxxx Xxxxxx
Its: Its: ________________________________
Seller Landlord
Seller's Tax ID Number:
EMERITUS CORPORATION
By: /s/ Xxxxxx X. Baty____________
Xxxxxx X. Xxxx
Its: Chief Executive Officer__________
Buyer
Buyer' s Tax ID Number: _________________
EXHIBIT A
PROPERTY DESCRIPTION
All those certain tracts or parcels of land in Champaign County, State of
Illinois, described as follows:
Lot 105R in Lot 105 replat of Eastgate Subdivision No. 1, City of Urbana,
Champaign County, Illinois, as per plat recorded July 14, 1997 as Document
97R16113, also being part of the South 1/2 of the North 1/2 of the Southeast 1/4
of Section 21, Township 19 North, Range 9 East of the Third Principal Meridian,
Champaign County, Illinois, also described as follows:
BEGINNING at the Northwest Corner of Xxx 000 xx Xxxxxxxx Xxxxxxxxxxx Xx. 0,
Xxxx of Urbana, Champaign County, Illinois, Recorded in Book "CC" of Plats at
Page 181 as Document No. 96R15730 in the Recorder's Office of Champaign County;
thence South 89 Degrees, 47 Minutes, 10 Seconds East, along the north line of
said Lot 105, 326.00 feet; Thence South 00 Degrees, 20 Minutes, 35 Seconds East,
655.81 Feet; Thence North 89 Degrees, 47 Minutes, 10 Seconds West, along the
South line of said Lot 105, 326.00 Feet to the southwest corner thereof; thence
North 00 Degrees, 20 Minutes, 35 Seconds West, along the West Line of said Lot
105, 655.81 Feet to the point of BEGINNING.
Together with the following easements:
Easement Parcel II
Electric Easement described as all that portion of a strip of land Fifty (50)
feet of even width situated upon parts of the following described real estate:
The Northwest Quarter (NW ) of Section 22 and the Southwest Quarter (SW ) of
the Northeast Quarter (NE ) of Section 22, ALSO, that portion of the Northeast
Quarter (NE ) of the Northeast Quarter (NE ) of Section 21 lying North of the
N&W RR (said RR having been previously abandoned); ALL in township 19 North,
Range 9 East of the Third Principal Meridian Champaign County, Illinois; AND,
ALSO, all right, title and interest, if any, held by Grantor at this time or
subsequently obtained at any future time in and to any and all portions of the
aforementioned (abandoned) lands or right-of-way of the N&W RR situated in the
aforedescribed Section 21 lying adjacent to and contiguous to the Southwesterly
boundary of the lands previously described above.
Easement Parcel III
Sanitary Sewer Easement described as the West 20 feet of the East 170 feet of
the Southwest Quarter of the Southeast Quarter and the South Half of the
Northwest Quarter of the Southeast Quarter of Section 21, Township 19 North,
Range 9 East of the Third Principal Meridian, containing 0.91 acres, more or
less, ALSO, the South 50 feet of the Southwest Quarter of the Southeast Quarter
of Section 21, Township 19 North, Range 9 East of the Third Principal Meridian,
except the East 170 feet thereof containing 1.52 acres, more or less.
Easement Parcel IV
Telephone Easement described as One (1) Xxx Xxxxx of the North right-of-way line
of designated public road 1400N of the following described real estate; the
South one half (S ) of the Southeast one quarter (SE ) and the South one half
(S ) of the North one half (N ) of the Southeast quarter (SE ) of Section
Twenty One (21) Township 19N, Range 9E of the 3rd P.M., Champaign County,
Illinois. It is further agreed that during installation of telephone cable or
maintenance of, thereafter, Illinois Xxxx Telephone Company will reimburse
grantor for all crop damage caused by grantee.
Easement Parcel V
Electric Easement described as a strip of land 40 feet in width over, across and
through the South Half of the South Half of the Southeast Quarter of Section 21,
Township 19 North, Range 9 East of the Third Principal Meridian; the centerline
of the said 40 foot strip of land is described as beginning on the East line of
the Southeast Quarter of said Section 21 at a point 2 feet North of the North
right-of-way line of Illinois Route 130; thence West parallel to the South line
of said Section 21 through a point of exit on the West line of the Southeast
Quarter of said Section 21; together with the further grant of the right and
easement to extend down-guys Northerly from a pole to be located approximately
505 feet East of the said point of exit to an anchor at a distance not to exceed
70 feet from the base of said pole.
