EX 10.72.1
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is dated for reference purposes
only as of the 5th day of 1997 and is by and
between Greencastle Retirement Partners,
L.L.C., a Maryland
corporation, or its assignee ("Purchaser") and Xxxx X.
Xxxxx ("Seller").
RECITALS
A. Seller is the owner of a certain parcel of real
property located in Augusta County, Virginia.
B. Purchaser is interested in purchasing the real
property owned by Seller on the terms and conditions
specified herein.
NOW, THEREFORE, in consideration of the foregoing
promises and the mutual covenants of the parties set
forth herein, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. PURCHASE AND SALE
On the terms and conditions set forth herein,
Seller shall sell to Purchaser and Purchaser shall
purchase from Seller, the following;
a. Real Property. The undeveloped real property
totaling 22.593 acres consisting of two (2) parcels,
Tax Map # 10024 ( 18. 993 acres) and Tax Map # 10792
(3. 60 acres) of real property as more particularly
described on Exhibit "A" attached hereto which actual
dimensions and total acreage of Real Property will be
determined by a full survey, including all rights,
title and interest, if any, of Seller in (collectively,
the "Real Property"); and
b. Property Rights. All contract rights, surveys,
blue prints, studies, and other work in progress
relating to any proposed development of the Real
Property, and all licenses, permits, approvals and all
other entitlements, rights or privileges appurtenant to
or held by Seller in connection with, the Real Property
and/or any proposed development thereof (collectively,
the
"Property Rights").
The Real Property and the Property Rights are
sometimes collectively referred to herein as the
"Property".
2. PURCHASE PRICE
The purchase price for the Property shall be Two
Hundred Thousand and 00/100 Dollars ($200,000.00).
The purchase price shall be payable as follows:
a. Initial Xxxxxxx Money Deposit. Five Thousand
and 00/100 Dollars ($5,000.00) within five (5) business
days of mutual execution of this Agreement, which shall
be delivered in the form of a check made payable to
Hallmark Title, Inc. Vienna, Virginia ("Escrow Agent").
All
such funds shall be held by Escrow Agent in an interest
bearing escrow account;
b. Additional Xxxxxxx Money Deposit. Ten Thousand
and 00/100 Dollars ($10,000.00) on or before conclusion
of the Feasibility Period (as defined below), which
shall be delivered in the form of a check made payable
to the Escrow Agent.
c. Extension Xxxxxxx Money Deposit. Five Thousand
and 00/100 Dollars ($5,000.00) before each of the
extensions of the Approval Period (as defined below),
which shall be delivered in the form of a check made
payable to the Escrow Agent. The Initial Xxxxxxx Money
Deposit, Additional Xxxxxxx Money Deposit and Extension
Xxxxxxx Money Deposit and any accrued interest thereon
shall be applied against the purchase price at Closing
or remitted to Seller or Purchaser, as appropriate, in
accordance with the provisions of Paragraph 16 below;
and
e. Balance of Purchase Price. The balance of the
purchase price shall be paid at the time of Closing by
wire transfer, cashier's check or other certified
funds.
3. CLOSING
Provided that the conditions to Closing set forth
in Paragraphs 12 and 13 have been satisfied or waived
in writing by the party for whom the condition exists,
closing of the purchase of the Property shall occur on
the date fifteen ( 15) days following the expiration of
the Approval Period (as defined below) or any extension
thereof pursuant to Paragraph 12.f. (the "Closing
Date") at such time and place as may be mutually agreed
upon by Seller and Purchaser. In the event the
scheduled Closing Date falls on a Saturday, Sunday or a
legal holiday, the Closing Date shall be the next
business day thereafter.
4. CONVEYANCES
At Closing, Seller shall convey the Real Property
to Purchaser by warranty deed, in form and substance
acceptable to Purchaser. Title to the Real Property
shall be conveyed free and clear of all liens or
encumbrances other than those approved by Purchaser
pursuant to Paragraph 12.c.
5. CLOSING COSTS AND PRORATIONS
At Closing, Seller and Purchaser shall be
responsible for the following costs and prorations:
a. Recording and Transfer Taxes. Purchaser shall
pay any state or county recording fees due and payable
as a result of the sale of the Property. Assessments,
revenue stamps and transfer taxes shall be paid by
Seller.
b. Agricultural Taxes. Seller shall pay any
agricultural or roll-back taxes.
c. Attorney's Fees. Seller and Purchaser shall
each pay their own attorneys' fees and costs, if any.
d. Escrow Fees. Seller and Purchaser shall share
all escrow fees on a 50-50 basis.
e. Real Property Taxes. Real property taxes with
respect to the Real Property shall be prorated as of
the Closing Date, with Seller responsible for any such
taxes which relate to the period prior to the Closing
Date, regardless of when payment therefor is due and
with Purchaser responsible for any such taxes which
relate to the period from and after the Closing Date.
If the Real Property is required to be subdivided into
a separate legal lot for the Closing, said pro ration
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of real property taxes shall be calculated based on the
latest available tax xxxx for the entire tax parcel of
which the Real Property is a part by allocating to the
Real Property a percentage of the real property taxes
reflected in said tax xxxx. The percentage shall be
determined by dividing the total number of acres
contained in the Real Property by the total number
acres contained in the entire tax parcel. As a matter
which shall survive the Closing hereunder, the parties
covenant and agree that, upon receipt of a separate tax
xxxx for the Real Property, the actual amount owed by
each of the parties for such pro ration of taxes shall
be determined and any amount thus determined to be owed
by one party to the other shall be paid within five (5)
days following demand therefor.
f. Title Insurance and Survey. Purchaser shall pay
for the cost of the premium for the Title Policy and
survey (as those terms are defined below).
In the event any prorations between the parties at
the time of Closing are made on the basis of
incomplete, incorrect, estimated or preliminary
information then, as a matter which shall survive the
Closing, the parties agree to re-adjust and re-
apportion such costs following the Closing promptly
upon receipt of complete, correct or final information,
which is verified by both parties.
6. POSSESSION
At Closing, Purchaser shall be entitled to
possession of the Real Property free and clear of all
tenancies.
7. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller does hereby represent and warrant to
Purchaser as follows:
a. Status. Seller is an individual.
b. Authority. Seller has full power and authority
to enter into this Agreement and to carry out the terms
hereof and the consummation of the transaction provided
for herein does not violate any law, regulation, court
order, mortgage, deed of trust, note, bond, indenture,
agreement, license or other instrument or obligation to
which Seller is a xxxxx or by which its assets may be
bound or affected. This Agreement is valid, binding and
enforceable as against Seller in accordance with its
terms, except as such enforceability may be affected by
bankruptcy, receivership or creditors' rights laws
generally.
c. Health and Safety. Seller has not received any
written notification from the
Department of Building and Safety, Health department,
or other such City, County or State authority having
jurisdiction over the Real Property, requiring any work
to be performed or affecting the Real Property or
indicating any intent to condemn the Real Property or
any portion of the Real Property.
d. Title. Seller has good fee simple and
marketable title to the Real Property, which title as
of the Closing Date, will be free and clear of all
liens and encumbrances other than those approved by
Purchaser pursuant to Paragraph 12.c.
e. Litigation. There is no litigation,
investigation, or other proceeding pending or, to the
best of Seller's knowledge, threatened against or
relating to Seller which is material to the Real
Property or this Agreement. In the event that a lien,
claim, or cause of action affecting the Real
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Property should arise prior to the Closing, and
Purchaser elects not to terminate this Agreement as a
result thereof, Seller, at its sole cost and expense,
shall indemnify, defend and hold the Purchaser harmless
therefrom, including without limitation, reasonable
attorneys' fees, costs and expenses.
f. Environmental Matters. Except in accordance
with, and in full compliance with, any and all
applicable governmental laws, regulations and
requirements (collectively, the
"Environmental Laws") relating to environmental and
occupational health and safety matters and hazardous
materials, substances or wastes (as defined from time
to time under any applicable federal, state or local
laws, regulations or ordinances) and except as
disclosed in any environmental reports delivered to or
obtained by Purchaser, Seller has not released into the
environment, or discharged, placed or disposed of any
such hazardous materials, substances or wastes or
caused the same to be so released into the environment
or discharged, placed or disposed of, at, on or under
the Real Property. Except as disclosed in any
environmental reports delivered to or obtained by
Purchaser and to the best of Seller's knowledge: (i) no
hazardous materials, substances or wastes are located
on the Real Property or have been released into the
environment or discharged, placed or disposed of in, on
or under the Real Property, (ii) no underground storage
tanks are or have been located on the Real Property,
(iii) the Real Property has never been used as a dump
for waste material, and (iv) the Real Property and its
prior uses comply with, and at all times have complied
with, all Environmental laws.
g. Utilities. All utilities necessary for
Purchaser's intended development and
operation at the property are (or shall be as of the
Closing) available to the Property and are (or shall be
as of the Closing) located within ten (10) feet of the
property line.
h. Special Assessments. Seller has received no
notice and has no knowledge of any pending special
assessments to be made against the Real Property by any
governmental authority.
i. Tenancies. As of the date of this Agreement,
none of the Real Property is under lease to any person,
firm, or entity; and, no oral or written agreements
have been entered into by Seller which commit to lease
all or any portion of the Real Property subsequent to
the date of this Agreement. To the best of Seller's
knowledge, there is no adverse possession of all or any
part of the Real Property.
j. Mechanic's Liens. There are no unpaid bills or
claims in connection with any construction or other
work performed on the Real Property nor shall there be
any on the date of Closing. Seller shall satisfy any
and all mechanic's or materialmen's liens filed against
the Real Property, or any part thereof, on or prior to
Closing and shall indemnify and hold harmless and
protect the Purchaser from any and a11 loss from any
such liens.
k. Taxes and Tax Returns. All tax returns and
related filings of any kind require to be filed by
Seller prior to the Closing Date with respect to its
ownership of the Real Property have been properly
completed and timely filed in material compliance with
all applicable requirements and all taxes of other
obligations which are due and payable by Seller have
been, or as of the Closing Date, will be timely paid.
l. Zoning. The current zoning for the Real
Property is R-4; such zoning designation permits
outright (e.g. without the need to obtain any special
use permits, conditional use permits, or other zoning -
or land use-related Governmental Approvals (as that
term is defined below)) the use of the Real Property
for an assisted living facility; and Seller has not
received any notice of, nor become aware of, any
proposed change or modification regarding such zoning
designation.
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8. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser does hereby represent and warrant to
Seller as follows:
a. Status. Purchaser is a limited liability
company duly organized and validly existing under the
laws of the State of Maryland and is in good standing
thereunder.
b. Authority. Purchaser has full power and
authority to execute and to deliver this Agreement and
all related documents, and to carry out the
transactions contemplated herein and the same do not
result in a breach of the terms and conditions of nor
constitute a default under or violation of Purchaser's
Operating Agreement or By-laws or any law, regulations,
court order, mortgage, note, bond, indenture,
agreement, license or other instrument or obligation to
which Purchaser is a party or by which Purchaser or any
of its assets may be bound or affected. This Agreement
is valid, binding and enforceable as against Purchaser
in accordance with its terms, except as such
enforceability may be affected by bankruptcy,
receivership or creditors' rights laws generally.
c. Litigation. There is no litigation,
investigation or other proceeding pending or threatened
against or relating to Purchaser, its properties or
business which is material to this Agreement, or which
would prevent Purchaser from performing its obligations
hereunder.
9. COVENANTS OF SELLER
Seller does hereby covenant and agree as follows:
a. Pre-Closing. Between the date hereof and the
Closing Date:
(i) as soon as practicable but in no event
later than fifteen ( 15) days following the mutual
execution of this Agreement, provide Purchaser with
copies of the following documents relating the Real
Property to the extent the same are in Seller's
possession or reasonable control (collectively, the
"Property Documents"): all title reports, commitments
and policies and copies of all documents creating
exceptions thereto, all permits, licenses, and other
governmental approvals and entitlements relating to the
use and/or development of the Real Property, all
reports, studies and investigations performed at the
Real Property, including all architectural drawings,
plans and specifications, environmental reports,
structural reports and geological reports, existing
surveys of the Real Property, wetland reports, soils
reports, engineering tests and reports, and appraisals
prepared for the Real Property and all other books and
records relating to any work performed in connection
with any proposed development of the Real Property
(simultaneously assigning to Purchaser the right to use
any such materials and upon Closing hereunder,
assigning to Purchaser all of Seller's right, title and
interest in and to any such materials);
(ii) satisfy and discharge all liens against
the Property, other than those approved by Purchaser
pursuant to Paragraph 12.c;
(iii) file all tax returns, reports and
filings required to be filed by Seller and timely pay
all taxes or other obligations which are due and
payable with respect to the Property;
(iv) not take any action inconsistent with
its obligations hereunder;
(v) Seller shall generally participate
in, and where necessary, execute, such
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planning and zoning applications, plats and documents
as are required by Purchaser to secure zoning and site
plan approval, and, to the extent required, assist
Purchaser in securing such other approvals as are
required for the development of the Property, all at no
additional cost to Purchaser or Seller.
(vi) Seller shall take those steps which are
necessary to clear title to the Property so that title,
good of record and in fact and insurable at standard
rates, may be conveyed at Closing.
b. Closing. On the Closing Date, Seller agrees to:
(i) Execute and deliver to Purchaser the
warranty deed described in Paragraph 4 and such other
instruments as shall be necessary to transfer the
Property to Purchaser, including but not limited to an
affidavit of Non-Foreign Status pursuant to Section
1445 of the Internal Revenue Code of 1986, as amended;
and
(ii) Pay any Closing costs for which it is
responsible under Paragraph 5.
c. Post-Closing. After the Closing Date, Seller
agrees that, at Purchaser's sole cost and expense, it
will take such actions and properly execute and deliver
to Purchaser such further instruments as may be
reasonably necessary to evidence the transfer of the
Property.
10. COVENANTS OF PURCHASER
Purchaser does hereby covenant and agree as
follows:
a. Pre-Closing. Between the date hereof and the
Closing Date, Purchaser will not take any action
inconsistent with its obligations hereunder and will:
(i) Purchaser will, at Purchaser's sole cost
and expense, cause a surveyor to prepare and deliver to
Purchaser (with a copy to Seller) a survey of the Real
Property meeting the requirement set forth below (the
"Survey"). The Survey shall show thereon: (a) the
location of all boundaries, existing fences, all
easements, pipelines, rights-of way, and roads which
are of record or visible on the ground, (b) whether any
of the Real Property lies within a 100 year flood plain
or any special flood hazard area as designated by any
governmental agency, (c) the number of acres and net
square footage contained within the boundaries of the
Real Property, (d) the location and dimensions of any
protrusions from and encroachments on the Real
Property; (e) the location of all public roads or
highways adjacent to the Real Property and (f) such
other matters as shall be required by the Title Company
for the issuance of the Title Policy with no exception
for matters as to survey. The Survey shall be certified
to the Purchaser and the Title Company. The surveyor
shall include in its certification its Registration
Number, address, telephone number, the job number and
that the Survey was made on the ground as per the field
notes shown thereon and that, except as shown thereon,
there are no visible easements, rights-of way, party
walls, conflicts, or visible encroachments by an
improvements onto an easement or neighboring property
or by any improvements on adjoining property onto the
Real Property and that the Real Property has direct
access to all adjacent public streets.
(ii) file with the appropriate governing
authority an application for the subdivision of the
Real Property into a separate legal lot, which
application shall be accompanied
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by all necessary back-up information which said
application shall require in order to commence the
process for the approval of said subdivision and
Purchaser shall thereafter diligently pursue said
subdivision in order that approval may be obtained by
the Closing Date. In connection with such subdivision,
Purchaser shall cause the Survey to be updated to
reflect the precise dimensions of the Real Property as
created by said subdivision and, If the Real Property
is to be conveyed by a metes and bounds description,
Purchaser shall cause the surveyor to prepare and
deliver to Seller and the Title Company a certified
metes and bounds description of the Real Property as
shall be shown on the final Survey;
b. Closing. On the Closing Date, Purchaser agrees
that it will deliver the balance of the purchase price
due at Closing together with its share of the Closing
costs as herein provided.
11. MUTUAL COVENANTS
Seller and Purchaser mutually covenant and agree
as follows:
a. Fulfillment of Conditions. If any event should
occur, either within or without the knowledge or
control of either party, which would prevent
fulfillment of the conditions to Closing provided for
herein, to use his, its or their reasonable efforts to
cure the same as expeditiously as possible;
b. Governmental Consents. To cooperate fully with
each other in taking any actions which are or may be
necessary to obtain the consent of any government
instrumentality or any third party or to accomplish the
transaction contemplated by this Agreement; and
c. Escrow Instructions. To execute and deliver
written instructions to Escrow Agent if necessary or
desirable to complete the purchase and sale of the
Property.
12. PURCHASER'S CONDITIONS TO CLOSING
The obligation of Purchaser to acquire the
Property shall be subject to the satisfaction by Seller
or to the waiver by Purchaser of the following
conditions:
a. Seller's Representations and Warranties.
Seller's representations and warranties set forth
herein shall be true in all material respects at and as
of the Closing Date as those made as of the date
thereof.
b. Seller's Performance. Seller shall have
performed all of its obligations hereunder which are
required to be performed as of the Closing Date.
c. Title Approval. Purchaser shall cause Hallmark
Title, Inc. Vienna, Virginia (the
"Title Company") to issue a commitment for title
insurance (including copies of all exception documents
referenced in said commitment) in an amount equal to
the purchase price, which commitment shall provide for
the issuance of a final title policy as of the Closing
Date, subject to no liens or encumbrances, other than
those which may be approved by Purchaser (the "Title
Commitment"). A copy of said Title Commitment shall be
delivered to Seller at the address set forth in Section
16 below. Within fifteen ( 15) days following
Purchaser' s receipt of (i) the Title Commitment, (ii)
legible copies of all exception documents referenced in
the Title Commitment,
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and (iii) the Survey, Purchaser shall notify Seller of
any items referenced in the Title Commitment and the
Survey to which it disapproves. Within ten ( 10) days
of Seller' s receipt of Purchaser' s objections, Seller
shall advise Purchaser in writing as to whether it
intends to correct the defects to which Purchaser has
objected. If Seller refuses to correct some or all of
such defects or fails to notify Purchaser within said
ten ( 10) day period regarding its intentions to
correct the disapproved matters, Purchaser shall have
fifteen ( 15) days following the earlier to occur of
(i) Purchaser' s receipt of Seller's written notice
regarding its refusal to correct the disapproved
matters or (ii) the expiration of said ten ( 10) day
period, to advise Seller of Purchaser' s decision to
close, notwithstanding the defects, or to terminate
this Agreement, in which case neither party shall have
any further rights or obligations hereunder. In the
event Purchaser fails to timely advise Seller of its
intention to terminate this Agreement, Purchaser shall
be conclusively deemed to have rejected such title
defect(s) and shall thereafter have the right to
terminate this Agreement. In the event of any such
termination, Purchaser shall be entitled to the return
of its Xxxxxxx Money and the parties shall have no
further rights or obligations hereunder.
d. Title Policy. The Title Company shall issue to
Purchaser as of the Closing Date, an ALTA Extended
Owner's Policy of Title Insurance for the Real Property
(the "Title Policy") which Title Policy shall have a
policy amount of not less than the amount of the
Purchase Price and be in a form acceptable to, and
include such endorsements, affirmative coverages, and
other modifications required by Purchaser and
Purchaser's lender (including any REIT, as defined in
Paragraph 20, below). Without limiting the generality
of the foregoing, such Title Policy shall be subject to
no exceptions other than those of the usual printed
exceptions which are acceptable to Purchaser (the
survey exception, parties in possession and mechanics'
lien exceptions being specifically unacceptable to
Purchaser) and those exceptions to which Purchaser has
not objected as provided for in Paragraph 12.c. above.
e. Feasibility Study. Purchaser shall conduct at
its sole cost and expense a feasibility study of the
Real Property (the "Feasibility Study"), which study
may include but shall not be limited to, (i) reviewing
and approving the Phase I Report and all Property
Documents required to be provided to Purchaser by
Seller, and (ii) conducting such engineering and soils
studies, environmental assessments, utilities
investigations, wetlands investigations, if applicable,
surveys and regulatory reviews, as Purchaser deems
appropriate to the development of an assisted living
facility consisting of at least one hundred (100) units
consistent with the development plans of Purchaser (the
"Facility"). Within One Hundred Eighty (180) days
following the mutual execution of this Agreement (the
"Feasibility Period"), Purchaser shall have approved or
disapproved the results of said Feasibility Study. In
the event Purchaser disapproves the Feasibility Study,
or if Purchaser fails to timely notify Seller of
Purchaser's approval or disapproval regarding the
Feasibility Study (in which event Purchaser shall be
conclusively deemed to have disapproved such
Feasibility Study), Purchaser shall have the right to
terminate this Agreement, which right shall be
exercised, if at all, within five (5) business days
after the last day of the Feasibility Period. Upon such
termination, Purchaser shall be entitled to the return
of its Initial Xxxxxxx Money Deposit and the parties
shall have no further rights or obligations hereunder.
Seller hereby grants to Purchaser and/or its agents,
consultants and contractors the right to enter the Real
Property for the purpose of performing such tests,
studies, assessments and investigations as Purchaser
determines necessary in connection with its Feasibility
Study of the Real Property; provided, however, that the
activities conducted by Purchaser and/or any of its
agents, consultants or contractors shall not materially
change or alter the character of the Real Property.
Seller further agrees to fully cooperate with Purchaser
concerning the components of the Feasibility Study.
f. Approvals. Upon or before completion of the
Feasibility Period, Purchaser shall commence and
proceed to obtain all necessary zoning, subdivision,
site plan and building
8
approvals and permits (and any other requisite
governmental or quasi-governmental approval)
(collectively referred to herein as "Approvals") as are
necessary to proceed with Purchaser's intended
development of the Property. Within One Hundred Eighty
( 180) days following conclusion of the Feasibility
Period (the "Approval Period"), Purchaser shall have
obtained all such Approvals, except that such One
Hundred Eighty (180) day Approval Period may be
extended for three (3) additional periods of thirty
(30) days each upon written notice by Purchaser to
Seller and Escrow Agent prior to the expiration of the
prior period. Upon extension of the Approval Period by
Purchaser, only the Extension Xxxxxxx Money Deposit(s)
shall be nonrefundable, except in the event of failure
of Seller to perform its obligations under this
Agreement.
g. Zoning. On or before the Closing Date,
Purchaser, with the cooperation of Seller, shall have
caused the zoning for the Real Property to be
appropriately designated so as to permit the
development of the Facility or Purchaser shall have
otherwise satisfied itself in its sole and absolute
discretion that the development and operation of the
Facility on the Real Property is permitted under the
Real Property's current zoning designation.
h. Board Approval. Prior to the conclusion of the
Feasibility Period, Purchaser shall have obtained the
approval of its Board of Directors to the acquisition
of the Property pursuant to the terms of this
Agreement.
i. Readiness for Construction. Upon the Closing
Date, there shall exist no impediments to the
commencement of construction of the improvements
contemplated to be constructed by Purchaser such that
Purchaser shall be able to commence construction of
said improvements immediately following the Closing
(e.g., within 48 hours following the Closing Date).
j. Financing. Prior to the Closing Date,
Purchaser shall have secured financing, on terms
acceptable to it, for the payment of the Purchase Price
due at Closing and the construction of the proposed
Facility and all of the documents necessary to evidence
said financing shall have been executed and delivered
into escrow by Purchaser and its Lender; provided,
however, that Seller acknowledges and agrees that said
financing may be in the form of sale/leaseback
financing with a real estate investment trust (the
"REIT"), in which case Purchaser shall have the right,
in accordance with Paragraph 20 below, to assign its
rights and obligations hereunder to said REIT and the
financing documents shall include, but not be limited
to, an assignment of this Purchase and Sale Agreement
and a Lease between Purchaser and said REIT.
13. SELLER'S CONDITIONS TO CLOSING
The obligation of Seller to convey the Property to
Purchaser shall be subject to the satisfaction by
Purchaser or the waiver by Seller of the following
conditions:
a. Purchaser's Representations and Warranties.
Purchaser's representations and warranties set forth
herein shall be true at and as of the Closing Date.
b. Purchaser' s Performance. Purchaser shall have
performed all of its obligations hereunder which are
required to be performed as of the Closing Date.
14. INDEMNIFICATION BY SELLER
Subject to the limitations set forth in Paragraph
16, Seller shall indemnify, defend and hold Purchaser
harmless from and against:
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a. Obligations Existing as of Closing Date: Any
and all obligations relating to
ownership of the Property which exist as of the Closing
Date, except to the extent that such . obligations
relate to a breach by Seller of a representation,
warranty or covenant set forth in the Agreement,
including, but not limited to, the representations and
warranties with respect to the environmental condition
of Real Property set forth in Paragraph 7.f., in which
case Seller's obligation to indemnify, defend and hold
harmless Purchaser shall be set forth in Paragraph
14.b.;
b. Breach of Representations and Warranties. Any
and all damage, loss, or liability resulting from any
material breach of ant representation, warranty or
covenant made by Seller in this Agreement or
nonfulfillment of any agreement on the part of Seller
under this Agreement or from any misrepresentation in
or omission from any certificate furnished or to be
furnished to Purchaser hereunder;
c. Fees and Expenses. Any and all actions, suits,
proceedings, demands, assessments, judgments, costs and
legal and other expenses, including, but not limited
to, reasonable attorneys' fees, incident to any of the
foregoing.
For purposes of Paragraph 14.a., an obligation
shall be deemed to "exist" as of the Closing Date if it
relates to events which occur prior to the Closing Date
even if it is not asserted until after the Closing
Date.
15. INDEMNIFICATION BY PURCHASER
Subject to the limitations set forth in Xxxxxxxxx
00, Xxxxxxxxx shall indemnify, defend and hold harmless
from and against:
a. Obligations Occurring After the Closing Date.
Any and all obligations relating to the ownership of
the Property accruing on or after the Closing Date;
b. Breach of Representations and Warranties. Any
and all damage, loss or liability resulting from a
material breach of any representation, warranty or
covenant of Purchaser in this Agreement or
nonfulfillment of any agreement on the part of
Purchaser under this Agreement or from any
misrepresentation in or omission from any certificate
furnished of to be furnished to Seller hereunder; and
c. Fees and Expenses. Any and all actions, suits,
proceedings, demands, assessments, judgments, costs and
legal and other expenses, including, but not limited
to, reasonable attorney's fees, incident to any of the
foregoing.
16. TERMINATION
a. Termination by Parties. This Agreement may be
terminated and the transaction contemplated herein
abandoned at any time prior to Closing;
(i) By mutual agreement of the parties;
(ii) By Seller, if any of the conditions set
forth in Paragraph 13 shall have become incapable of
fulfillment prior to the Closing Date or such earlier
date as may be specifically provided for the
performance thereof(as the same may be extended)
through no fault
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of Seller and the same shall not have been waived by
Seller;
(iii) By Purchaser, if any of the conditions
set forth in Paragraph 12 shall have become incapable
of fulfillment prior to the Closing Date or such
earlier date as may be specifically provided for the
performance thereof (as the same may be extended)
through no fault of Purchaser and the same shall not
have been waived by Purchaser;
(iv) By either Seller or Purchaser in the
event of a material breach by the other party of its
obligations hereunder; or
b. Material Damage or Destruction. In the event
that prior to the Closing Date, a material portion of
the Real Property shall have been damaged or destroyed
or shall have been taken or condemned by any public or
quasi-public authority under the power of eminent
domain, Purchaser shall have the right to terminate
this Agreement on written notice to Seller which notice
must be delivered within ten (10) days after Purchaser
receives notice of such damage, destruction or
condemnation. In the event Purchaser fails to exercise
its termination rights hereunder, then it shall be
conclusively deemed to have waived said right and
Seller shall assign to Purchaser all of its rights to
any insurance proceeds or condemnation award and all
claims in the connection therewith. In the event
Purchaser exercises its termination rights hereunder,
the parties shall have no further rights or obligations
hereunder other than Purchaser's right to the return of
its Xxxxxxx Money.
c. Notice. Neither party to this Agreement may
claim termination or pursue any other remedy referred
to in Paragraph 16. a. above on account of a breach of
a condition, covenant or warranty by the other, without
first giving such other party written notice of such
breach and not less than ten (10) days within which to
cure such breach. The Closing Date shall be postponed,
if necessary, to afford such opportunity to cure.
d. Seller's Liquidated Damages. In the event of
the termination of this Agreement by Seller as a result
of a material breach by Purchaser of its obligations
hereunder, Seller' s sole remedy shall be to terminate
this Agreement and to retain Purchaser's Initial
Xxxxxxx Money Deposit and Additional Xxxxxxx Money
Deposit (if applicable), together with all interest
accrued thereon, as full and complete liquidated
damages, the parties acknowledging and agreeing that
the amount of damages which Seller may incur as a
result of such termination may be difficult to
ascertain and that the amount of the Initial Xxxxxxx
Money Deposit and Additional Xxxxxxx Money Deposit (if
applicable), together with all interest accrued
thereon, is a reasonable and fair estimate thereof,
after which the parties shall have no further rights or
obligations hereunder.
e. Purchaser's Remedies. In the event of the
termination of this Agreement by
Purchaser as a result of a material breach by Seller of
its obligations hereunder, Purchaser shall have the
right either to (i) terminate this Agreement and
receive a full refund of its Initial Xxxxxxx Money
Deposit and Additional Xxxxxxx Money Deposit (if
applicable), together with all interest accrued
thereon, after which neither party shall have any
further rights or obligations hereunder or (ii) seek
specific performance of Seller' s obligations hereunder
and/or damages for Seller' s breach of its obligations
hereunder. In the event of the termination of this
Agreement by Purchaser as a result of a failure of any
of the Purchaser' s conditions as set forth in
Paragraph 12 above Purchaser shall be entitled to a
full refund of its Initial Xxxxxxx Money Deposit and
Additional Xxxxxxx Money Deposit (if applicable),
together with all interest accrued thereon.
17. BROKER
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Purchaser and Seller recognize Xxxxx Xxxxx and
Century 21- Xxxxx and Associates as procuring broker
and seller shall pay a11 real estate commissions due
per separate agreement. Seller and Purchaser agree to
indemnify the other party against any claim for any
commission made by any broker allegedly employed by it.
18. NOTICES
Any notice, request or other communication to be
given by any party hereunder shall be in writing and
shall be sent by registered or certified mail, postage
prepaid, by overnight courier guaranteeing overnight
delivery or by facsimile transmission (if confirmed
verbally or in writing by mail as aforesaid), to the
following address:
To Seller: Xxxx X. Xxxxx
c/o Century 21- Xxxxx and
Associates
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone No. : 000-000-0000
Facsimile No.: 540-885-I 130
To Purchaser: Greencastle Retirement Partners,
L.L.C.
c/o Greencastle Development
Company
0000 Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Telephone No. : (410) 573 -2485
Facsimile No. : (410) 224-653 9
With copies to: Emeritus Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Telephone No. : (000) 000-0000
Facsimile No. : (206) 301=4070
Notice shall be deemed given upon receipt or refusal if
sent by mail, or by overnight courier and on receipt if
sent by facsimile (and confirmed verbally or by mail as
aforesaid).
19. AMENDMENT AND MODIFICATION
This Agreement may not be amended or modified in
any respect whatsoever except by instrument in writing
signed by the parties hereto. This Agreement
constitutes the entire agreement between the parties
hereto and supersedes all prior negotiations,
discussions, writings and agreements between them.
20. ASSIGNMENT
Purchaser shall have the right to assign its
rights and delegate its obligations hereunder without
the prior written consent of Seller, provided that the
assignee agrees in writing to assume all of the
obligations of Purchaser hereunder from and after the
effective date of said assignment.. In the event of
such an assignment, Seller agrees that Greencastle
Retirement Partners, L.L.C. shall be relieved and
released from any and all further obligations and/or
liability hereunder. In the
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event of any such assignment, all of the references to
Purchaser herein shall be deemed to be references to
Purchaser's assignee, the representations set forth in
paragraph 8 shall be revised accordingly and the terms
of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by and against said
assignee. Notwithstanding the foregoing, Purchaser
shall also have the right, on notice to Seller, to
assign its rights hereunder to a real estate investment
trust (the "REIT") in connection with its financing of
the transaction provided for herein, it being
understood and agreed that in the event of such an
assignment to a REIT., the only right which the REIT
will assume is Purchaser's obligation to pay the
purchase price in accordance with the terms hereof and
that, in any event, Purchaser shall not be relieved of
any of its obligations hereunder in the event of such
an assignment to a REIT.
21. WAIVER
The waiver by any party of any breach of any of
the provisions of this Agreement shall not constitute a
continuing waiver or a waiver of any subsequent breach
of any provision of this Agreement.
22. INCORPORATION BY REFERENCE
Each recital set forth and exhibit referenced in
this Agreement is incorporated and becomes an integral
part of this Agreement.
23. CAPTIONS
The captions of this Agreement are for convenience
of reference only and shall not define or limit any of
the terms or provisions hereof.
24. SURVIVAL
This Agreement shall survive the Closing Date and
thereafter remain binding on both Seller and Purchaser.
25. ATTORNEYS' FEES
If any litigation or other proceedings are
commenced between parties to this Agreement regarding
the rights and duties of any party pursuant to, related
to or arising from this Agreement, then the prevailing
party with respect to the litigation or other
proceedings, shall be entitled, in addition to the
relief granted, a reasonable sum for attorneys' fees
and costs of the litigation or other proceedings.
26. GOVERNING LAW
This Agreement shall be governed by and construed
in accordance with the laws of the State of Virginia.
27. SEVERABILITY
Should any one or more of the provisions of this
Agreement be determined to be invalid, unlawful or
unenforceability in any respect, the validity, legality
and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby.
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28. COUNTERPARTS
This Agreement may be executed in any number of
counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and
the same instrument.
29. TIME OF THE ESSENCE, DATES.
Time is of the essence. If this Agreement calls
for, or establishes, a day or date on which an event
occurs, or by which an action must be taken, and such
day or date falls on a Saturday, Sunday or legal
holiday (defined to be any day on which the United
States Postal Services does not deliver regular mail),
such day or date shall be, for the purposes of the
Agreement, the next business day thereafter.
30. DISCLOSURE
Xxxxx X. Xxxxxx, an officer of Greencastle
Retirement Partners L.L.C. and Greencastle Development
Company, is a licensed Real Estate Broker in the
Commonwealth of Virginia and the State of Maryland.
Xxxxx Xxxxx, the procuring broker, is the husband of
the Seller. Xxxx X. Xxxxx, the Seller, is also a
licensed Realtor in the State of Virginia
31. EXCHANGE COOPERATION CLAUSE
Purchaser and Seller agree to the settlement of
this contract under the provisions of section 1031 of
the Internal Revenue Code. The exchange must be
accomplished through a qualified intermediary.
Settlement of this contract under the provisions of
section 103 I of the Internal Revenue Code will be done
at no additional expense (including attorney fees) or
delay to the Purchaser. All related documents shall be
in a form acceptable to Purchaser.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS THEREOF, the parties have executed this
Agreement the date set forth opposite each party's
signature below and the last date of execute deemed the
date of mutual execution" as such term is used herein.
PURCHASER: GREENCASTLE
RETIREMENT
PARTNERS, L.L.C., a
Maryland . limited
liability company
Dated: 2/4/97 /s/ Xxxxx X. Xxxx
--------------------
------------------
By: Xxxxx X. Xxxx
Its: Managing
Member
SELLER: XXXX X. XXXXX
By: /s/ Xxxx X.
Xxxxx
--------------------
------------------
Its:
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