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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made this 12th day of
May , 1997, by and between STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a
body corporate of the State of Illinois, (hereinafter "Seller") and MID ATLANTIC
MEDICAL SERVICES, INC., or assigns ("Purchaser").
RECITALS
R-1. WHEREAS, Seller is the owner of record and in fact, legally and
beneficially, of certain land, buildings, improvements and certain personal
property thereon, located at 000 Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, also known as
The State Farm Building, containing approximately 208,812 square feet on 26.05
acres of land, more or less.
R-2. WHEREAS, Seller desires to sell the described property to Purchaser
and Purchaser desires to purchase the described property from Seller at the
price and upon the terms and conditions hereinafter set forth.
WITNESSETH:
That in consideration of the mutual covenants of the parties hereto and for
other good and valuable consideration, the receipt, sufficiency and adequacy of
which are hereby acknowledged, the parties hereto, intending legally to be
bound, hereby agree as follows:
1. RECITALS. The foregoing Recitals to this Agreement are incorporated
herein and made a part of this Agreement.
2. SALE AND PURCHASE. Seller agrees to sell, assign, transfer and convey in
fee simple to Purchaser and Purchaser agrees to purchase from Seller, under the
terms and conditions set forth in this Agreement, the following (all of which is
collectively referred to hereafter as the "Property").
A. Real Property. That certain real property located at 000 Xxx Xxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxx, and more specifically described on "Exhibit A",
attached hereto and incorporated herein by reference ("Real Property") and all
appurtenances, rights, privileges, and easements and development rights
benefiting, belonging or pertaining thereto, and any right, title and interest
of Seller in and to any land lying in the bed of any street, road or highway or
other right-of-way, whether existing or proposed, in front of or adjoining the
Real Property;
B. Improvements. All improvements and fixtures located on the Real
Property, including without limitation all buildings and structures presently
located on the Real Property and all machinery, apparatus, equipment, fittings
and fixtures presently located in or upon the Real Property or any part thereof
and used or usable in connection with any present or future operations of the
Real Property. The foregoing
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property includes all ordinary building heating, lighting and incinerating
equipment, pipes, pumps, tanks, motors, conduits, plumbing, lifting, fire
prevention, fire extinguishing, refrigerating, ventilating apparatus, air
cooling and air conditioning apparatus, all of which are free and clear of any
title retention or security agreement. The assets listing in this subparagraph
are hereinafter referred to as the "Improvements".
C. Personal Property. All personal property of Seller located on or in or
used in connection with the Real Property and Improvements and described in
"Exhibit B", attached hereto and incorporated herein by reference ("Personal
Property").
D. Plans and Specifications. All construction plans and specifications for
the Property, in the possession of Seller ("Plans and Specifications"). All
documents shall be delivered by Seller to Purchaser without warranty or
liability.
3. PURCHASE PRICE.
A. Purchase Price. The total purchase price for the Property is Eight
Million Six Hundred Thousand and no/100 Dollars ($8,100,000.00) ("Purchase
Price").
B. Payment Terms. The Purchase Price shall be payable as follows:
(1) Deposit. Contemporaneous with the execution of this Agreement by both
parties, Purchaser shall deliver a deposit in the amount of Five Hundred
Thousand Dollars Dollars ($500,000.00) to Xxxxxxxxx, Horman & Xxxxx, P.A. and
Xxxxxxx X. Xxxxxxxxx, Esq. as co-escrow agents ("Co-Escrow Agents") to be held
in escrow subject to the terms of this Agreement. The deposit shall be in the
form of a promissory note ("Note") payable to the order of Seller and shall
conform to the promissory note attached hereto as "Exhibit C" and incorporated
herein by reference. Upon the expiration of the review period described in
paragraph 8 below, Purchaser shall replace the Note with a cash deposit in the
same amount ("Deposit") and the Note shall be cancelled and returned to
Purchaser. The Deposit shall be maintained in a high-yield interest-bearing
account, with the interest accruing for the benefit of the Purchaser in the
event of settlement. In the event of Purchaser's default hereunder, all accrued
interest shall become part of the Deposit and shall follow the Deposit as
hereinafter provided.
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(2) Cash at Settlement. At settlement, Purchaser shall pay the sum of Eight
Million Six Hundred Thousand Dollars ($8,100,000.00), of which sum the Deposit
shall be a part, by cash, cashier's check, certified check or wire transfer.
4. SETTLEMENT.
(A) Time and Place. Settlement hereunder shall be held within seven (7)
business days after the expiration of the contingencies and/or conditions of
Purchaser's obligation to proceed to settlement ("Settlement Date"), as
described in this Agreement, including,but not limited, to the provisions of
paragraph 8C below, at the offices of Xxxxxxx X. Xxxxxxxxx, Esq., 0000 Xxxxxxxxx
Xxxxxx, Xxxxx 000 Xxxxx, Xxxxxxxx, Xxxxxxxx ("Settlement") and shall be
conducted by Xxxxxxx X. Xxxxxxxxx, Esquire ("Settlement Attorney"). If for any
reason Seller has not completed its work contemplated in paragraph 8C below or
otherwise is not in a position to close on or before September 1, 1997, then
Seller, in its sole discretion, may extend Settlement upon written notice until
November 1, 1997.
B. Adjustments. The following items, except as herein otherwise expressly
indicated, shall be adjusted and apportioned between Seller and Purchaser as of
12:01 a.m. on the date of Settlement:
(1) Real estate and personal property taxes for the tax year in which
Settlement is held, but assessments for improvements, if any, completed prior to
the date of Settlement, whether assessment therefor has been levied or not,
shall be paid by Seller or allowance made therefor at the time of Settlement.
If, at the time of Settlement, the Property or any part thereof shall be or
shall have been affected by assessments which are or may become payable in
annual installments or are then a charge or lien, then for the purposes of this
Agreement all the unpaid installments of such assessments, including those which
are to become due and payable and to be liens upon the Property, shall be paid
and discharged by Seller at Settlement;
(2) Utilities (including water, sewer, gas, electricity and all other
utilities) shall be read on the morning of the date of Settlement and the bills
to such date paid by Seller, or an escrow shall be established by the Settlement
Attorney for payment of same;
(3) All other income and expenses of operation from
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the Property, except as otherwise expressly set forth herein, shall be adjusted
in accordance with the customs in effect in the jurisdiction in which the
Property is located as of the date of this Agreement.
C. Settlement Charges.
(1) The cost of recordation and transfer taxes in connection with the sale
and purchase of the Property shall be divided equally between Seller and
Purchaser. All other costs and expenses attendant to Settlement hereunder,
including costs for preparation of the deed, normal and usual title company
charges, title insurance premiums, title examination, survey costs and notary
fees shall be at the cost of Purchaser; provided, however, that if upon
examination, title to the Property should be found defective (uninsurable under
standard American Land Title Association (ALTA) owner's title insurance policy
without incurring an additional premium), Seller shall pay the title examination
and survey charges and Purchaser shall have the right, pursuant to paragraph 15
hereof, to terminate this Agreement and recover the Deposit, whereupon all
parties shall be released from any further liability or obligation hereunder.
(2) At Settlement, Seller shall be credited with the following: (a)
assignable tax and utility company deposits, if any; (b) fuel, if any, at last
invoice price and based upon the supplier's measurement; (c) inventories and
supplies, at Seller's cost; and (d) real estate tax escrows, if any.
5. SELLER'S OBLIGATIONS AT SETTLEMENT. At Settlement, Seller shall deliver
to Purchaser:
A. Special Warranty Deed. A good and sufficient special warranty deed to
the Real Property and Improvements in recordable form, drafted by the Settlement
Attorney and approved by Seller and duly executed and acknowledged by Seller and
all other persons required by Purchaser's title insurer.
B. Xxxx of Sale. A Xxxx of Sale drafted by the Settlement Attorney and duly
executed and acknowledged by Seller, which shall convey good title with full
warranty thereof to the Personal Property to Purchaser, free and clear of all
liens, encumbrances, security interests and adverse claims.
C. Assignment of Leases, Rents, and Deposits. INTENTIONALLY OMITTED.
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D. Leases. INTENTIONALLY OMITTED.
E. Tenant Estoppel Letters. INTENTIONALLY OMITTED.
F. Contracts. Originals, or, if not available, copies of all service
contracts, maintenance contracts, and other contracts or agreements related to
the Property to be assumed by Purchaser and continued after Settlement, if any.
G. Licenses/Permits. All licenses, building permits and governmental
approvals related to the Property and certificates of occupancy for the
Improvements and all tenant-occupied space included within the Improvements,
actually in Seller's possession.
H. Legal Opinion. An opinion from counsel to Seller, in form satisfactory
to counsel for Purchaser, that Seller is a corporation in good standing and
authorized to do business in the State of Maryland, the individuals signing on
behalf of the Seller, have the requisite legal authority to take all actions
contemplated by this Agreement and that all steps necessary to authorize such
actions have been duly taken.
I. Plans and Specifications. The Plans and Specifications referred to
in paragraph 2 above.
J. Miscellaneous. Such other documents and actions as are necessary, in the
reasonable opinion of the Settlement Attorney, to effectuate the terms and
conditions of this Agreement.
6. PURCHASER'S OBLIGATIONS AT SETTLEMENT. A. At Settlement hereunder,
Purchaser shall pay the balance of the Purchase Price and take such other
actions as are necessary in the reasonable opinion of the Settlement Attorney to
effectuate the terms and conditions of this Agreement.
B. Purchaser acknowledges that Purchaser shall have, prior to Settlement,
thoroughly inspected, and unconditionally and irrevocably approved, all elements
comprising the Property, and all factors related to their use and operation,
including without limitation, utilities, physical and functional aspects of the
Property, the construction and condition of the Property, all matters affecting
and relating to title, and municipal and other legal requirements such as taxes,
assessments and bonds, zoning use permits, business permits, licenses, and
similar entitlements. Purchaser further acknowledges that on Settlement
Purchaser will acquire the Property in "AS IS" and "WHERE IS, WITH ALL FAULTS"
condition, and solely in reliance on Purchaser's own inspection and examination
without
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recourse to Seller, except as to Seller's representations and warranties
contained herein.
7. TENDER OF PERFORMANCE. It shall be a good and sufficient tender of
performance of the terms hereof relating to Settlement if Seller shall deposit
with the Settlement Attorney fully executed originals of each of the documents
listed in paragraph 5 hereof, and in the case of Purchaser, tenders the balance
of the Purchase Price and takes such other actions as are reasonably required by
the Settlement Attorney pursuant to this Agreement.
8. CONDITIONS OF PURCHASER'S OBLIGATION TO SETTLE. The following shall be
conditions of Purchaser's obligation to make Settlement hereunder, which
Purchaser, in its discretion, may waive in whole or in part:
A. Representations and Warranties. The representations and warranties made
by Seller in this Agreement shall be true and correct on and as of the date of
Settlement as fully as if made at that time, otherwise, Purchaser may terminate
this Agreement and/or exercise the remedies described in paragraph 15 hereof.
B. Review Period.
(1) Immediately upon execution of this Agreement, Seller shall provide or
make available to Purchaser an accurate survey of the Property and the Plans and
Specifications for the Property currently in Seller's possession. Purchaser
shall, within twenty-five (25) days of the Effective Date hereof, cause, at
Purchaser's sole cost and expense, such structural, economic, engineering,
environmental, and/or mechanical tests, investigations and studies as Purchaser
may determine to be made of the Property. Purchaser shall have the right, at its
own risk, cost and expense, at any reasonable time or times prior to Settlement,
upon reasonable notice to Seller, to enter, or cause its agents or
representatives to enter upon the Property for the purpose of making tests,
investigations and/or studies, and Seller shall furnish to Purchaser during such
period all information in the possession of or available to Seller concerning
the Property which Purchaser may request. Purchaser agrees to restore the
Property to its present condition and further agrees to save harmless Seller
from any claim or demand made by Purchaser or any third party against Seller
resulting from Purchaser's access to the Property. Notwithstanding anything
contained in this Agreement to the contrary, Purchaser's obligations hereunder
shall survive closing or termination of this Agreement.
(2) In the event that any such review, tests, inspections,
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investigations, documents and/or studies indicate, in Purchaser's sole
discretion, that Purchaser's intended purchase and use of the Property would not
be economically or otherwise feasible, then in such event, Purchaser shall have
the absolute right, at its option, to terminate this Agreement without further
liability by giving written notice to Seller on or before twenty-five (25) days
from the Effective Date, and the Deposit shall be returned to Purchaser. In the
event Purchaser elects to terminate this Agreement, Purchaser shall immediately
deliver to the Seller the results of any and all tests and/or studies and return
all plans and specifications provided by Seller.
(3) In the event that Purchaser does not terminate this Agreement on or
before the end of the Review Period set forth above, the Five Hundred Thousand
Dollar ($500,000.00) Deposit shall become non-refundable, except for Seller's
breach hereunder.
C. Asbestos Removal. Seller shall contract licensed, permitted and
appropriately insured asbestos abatement contractor to remove all asbestos
containing material from the Property, except as hereinafter agreed between the
parties hereto, at Seller's expense upon expiration of the Review Period and
Purchaser being obligated under the Agreement. The asbestos removal shall
include all asbestos containing material identified in the report dated March
27, 1997, by Hygenetics Environmental Services (the "Report"). As for asbestos
materials under permanent fixtures, Seller will, at Purchaser's option, (i)
remove the fixture and the asbestos tile, but will not replace the fixture, or
(ii) not remove the fixture nor the asbestos containing tile. At the option of
the Seller, removed asbestos-containing floor tiles will not be replaced with
another material, but at Seller's expense, the ceiling tiles will be replaced
with Xxxxxxxxx Tile 755, and with regard to any asbestos materials that went in
place with insulation (i.e. around piping) said areas will be reinsulated. Any
other items not being replaced will be identified in writing to Purchaser. Upon
completion, Seller shall provide copies of all asbestos abatement reports,
including disposal documentation, to Purchaser. Also, proof of contractor
payment shall be provided to Purchaser. The removal process is estimated to take
60-75 days, but, in any event, Seller agrees to use its best efforts and to
diligently pursue completion of the process immediately upon expiration of the
Review Period. Notwithstanding anything contained herein to the contrary,
Settlement shall take place within ten (10) days following delivery of the
satisfactory asbestos removal report by the consultant to the Purchaser and said
date shall become the Settlement Date, but in no event after November 1, 1997,
unless extended by mutual consent of Purchaser and Seller.
9. REPRESENTATIONS AND WARRANTIES OF SELLER. To the best
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of Seller's knowledge, each of the following representations and warranties by
Seller is true and correct, shall be true and correct on the date of Settlement,
and shall survive settlement and recordation of the deed conveying the Property
to Purchaser and not be merged therein:
A. Power and Authority to Sell. Seller is a validly existing legal entity
in good standing, has full power, authority and legal right to enter into this
Agreement and to transfer and convey to Purchaser full legal and beneficial
ownership of the Property and the person or persons executing this Agreement and
documents at Settlement on behalf of Seller have executed and delivered this
Agreement and other documents under full authority duly given to them by the
proper representatives of Seller.
B. Property Condition. The Property is in good operating condition and
repair, subject only to ordinary wear and tear. There are no existing structural
defects in the Improvements and all elevators, plumbing, mechanical, heating,
ventilating, air conditioning, electric wiring and fixtures, and water and
sewage equipment and systems presently in the Property are in good working order
and condition and there are no existing conditions requiring special maintenance
or repair. Except for the presence of asbestos containing material, the Property
is free from hazardous waste, toxic gases, and any other environmental
conditions which violate federal, state, or local rule, law, or regulations.
C. Mechanics' Liens. All bills and claims for labor performed and materials
furnished to or for the benefit of the Property during the period preceding the
date of Settlement have been (or will prior to Settlement be) paid in full, and
there shall be no mechanics' or materialmens' liens pending or threatened as of
the date of Settlement.
D. Tenant Leases.
(1) There are no leases with tenants of the Property and no prior tenant of
the property has any right to or claim against the Property or Seller as a
result of any prior tenancy.
(2) No controversy, complaint, proceeding, suit or litigation relating to
any prior lease, tenancy or rent of the Property or any part thereof is
threatened or pending in any Court or administrative agency or before any
arbitrator or arbitration forum.
(3) The Property is conveyed free and clear of any obligations to any
person, firm, partnership or corporation in connection with the management
thereof or
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with regard to the procurement of leases thereon, and no management or leasing
commission is due or owing in connection with any tenant leases or on account of
any tenancy or occupancy of the Property on the date of Settlement.
E. Personal Property. Seller has good and marketable title to all of the
Personal Property listed on "Exhibit B", subject only to those liens or
encumbrances listed thereon. Those items of Personal Property held by Seller
pursuant to leases, conditional sales contracts or security agreements are
assignable to Purchaser without the consent of the lessor or the holder of any
security interest therein. Each of such leases, conditional sales contracts and
security agreements is in full force and effect and no party is in default
thereunder.
F. Operating Statements. "Exhibit F" contains Seller's statement of real
estate taxes paid, maintenance and improvement expenditures and utility
expenditures with respect to the Property for the years ending December 31, 1995
and 1996 (the "Operating Statements"). The Operating Statements (1) reflect
accurately (and contain all relevant financial information relating to) the
operation of the Property for the respective periods covered thereby; (2) are in
accordance with Seller's books and records; and (3) have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods indicated. Since December 31, 1995 there has been no
material adverse change in the operations of the Property from that shown on the
Operating Statements.
G. Zoning. If Seller has knowledge of any special exceptions or other
zoning matters with regard to the Property, Seller shall, upon execution of this
Agreement, provide Purchaser with complete information with regard to same.
Seller knows of no judicial, quasi-judicial, administrative or other proceedings
pending or threatened which might adversely affect the validity of the
Property's zoning, use or development. Seller knows of no facts, nor has Seller
failed to disclose any facts, which would prevent Purchaser from using and
operating the Property after the Settlement to the fullest extent permitted
under existing zoning regulations.
H. Access. The Real Property and Improvements have full and free access to
and from validly dedicated and accepted public highways, streets and roads and
Seller has no knowledge of any pending or threatened governmental proceeding or
any other fact or condition which would limit or result in the termination of
such access.
I. Compliance with Other Instruments, Etc. Neither the entering into of
this Agreement nor the consummation of the transactions contemplated hereby will
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constitute or result in a violation or breach by Seller of any contract or
instrument to which it is a party, or to which it is subject, or by which it or
any of its assets or properties may be bound, except as herein disclosed.
J. Special Assessments. No portion of the Property is subject to or is
affected by any special assessments, whether or not presently a lien thereon,
and to the best of Seller's knowledge, no such assessments nor improvements
which would result in an assessment have been proposed.
K. Compliance with Laws, Etc. Neither the entering into of this Agreement
nor the consummation of the transactions contemplated hereby will constitute or
result in a violation or breach by Seller of any judgment, order, writ,
injunction or decree issued against or imposed upon it, or will result in a
violation of any applicable law, order, rule or regulation of any governmental
authority. There is no action, suit, proceeding or investigation pending which
would prevent any action contemplated by this Agreement, which would become a
cloud on the title to the Property or any portion thereof, except for insurance
claim-related judgments, or which questions the validity or enforceability of
the transaction contemplated by this Agreement or any action taken pursuant
hereto before any Court or before or by the federal, district, county or
municipal department, commission, board, bureau, agency, or other governmental
instrumentality. No approval, consent, order or authorization of, or
designation, registration or filing (other than for recording purposes) with any
governmental authority is required in connection with the due and valid
execution and delivery of this Agreement and compliance with the provisions
hereof and the consummation of the transactions contemplated hereby. There are
no notices of violations of law or municipal ordinances, orders or requirements
noted in or issued by any federal, state or municipal department or other
department having jurisdiction over or affecting the Property which have not
been satisfactorily corrected by the Seller.
L. Condemnation. Neither the whole nor any portion of the Property is
subject to temporary requisition or use by any governmental authority, nor is
there pending any condemnation, requisition or similar proceeding affecting the
Property or any portion thereof. Seller has received no notice nor has any
knowledge that any such proceeding is contemplated.
M. Other Agreements. At Settlement, there shall be no contracts, leases,
management, leasing, service, operating or other agreements in existence and
affecting the Property which may not be terminated upon thirty (30) days notice
without penalty, cost or charge, except for the agreements described in "Exhibit
D".
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N. Management, Agreements and Service Contracts. Seller has furnished
Purchaser with true and correct copies of each real estate management, leasing,
maintenance, security and service contract, and all other agreements in force
with respect to the Property and a complete list of all such agreements is
contained in "Exhibit D". Seller agrees to cancel any contracts listed on
"Exhibit D" at Settlement upon Purchaser's written request, if cancellation is
permitted by the terms thereof.
O. Fire Insurance Requirements. Seller does not know of any outstanding
requirements or recommendations by fire underwriters or rating boards, or any
insurance companies, requiring or recommending any repairs or work to be done
with reference to the Property or any part thereof. P. Utilities. All utilities,
including without limitation, sewage, water, electricity, gas and telephone,
required for the operation of the Property are present, all of said utilities
are installed and operating, all initial installation and connection charges and
current operating charges have been paid for in full, and, to the knowledge of
the Seller, all such utilities have been installed and are operating pursuant to
the customary and usual contracts and practices of the respective utility
companies. If utility lines, including sewer and water lines, servicing the
Property cross the property retained by Seller and improved by Seller's claims
office, Seller will execute appropriate width easements to Purchaser for said
utility lines. In addition, Seller will retain easements over the Property for
any utility lines which service the property retained by Seller as its claims
office.
Q. Compliance with Covenants, Etc. Seller is not in default or breach of
any covenants, conditions, restrictions, rights-of-way or easements affecting
the Property or any portion thereof.
R. Title. Seller is the owner of record and in fact, legally and
beneficially, of the Property and has the right to sell and assign, without the
agreement of any other person, fee simple title to the property that is good and
marketable, and insurable under a full coverage ALTA owner's title insurance
policy at standard rates. The Property shall be conveyed free of liens and
encumbrances, except as otherwise set forth herein. Purchaser shall, after
execution of this Agreement by the Seller, cause an examination of title to the
Property to be made and shall, within twenty-five (25) days from the Effective
Date, notify Seller in writing of Purchaser's acceptance, if any, of the title
as shown on such title examination report or of all title defects disclosed on
such title examination report which adversely affect title and which are not
acceptable to Purchaser.
If the defect or title objection complained of can be discharged or removed
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by payment of a determinable sum of money not to exceed Ten Thousand Dollars
($10,000.00), Seller shall be obligated to discharge or remove same at Seller's
expense. Otherwise, Purchaser shall have the right to elect by written notice
(i) to proceed to Settlement with the title in its defective condition, or (ii)
to terminate this Agreement, in which event Seller shall refund the Deposit to
Purchaser and thereupon the parties shall be released from any further
obligations and liabilities hereunder.
Seller shall have thirty (30) days after receipt of such notice to correct such
title defects. If Seller is unwilling or unable to correct such title defects
within such time period, Purchaser shall have the right (i) to waive such title
defects, or (ii) to terminate this Agreement, in which event Seller shall refund
the Deposit to Purchaser.
S. Licenses and Permits. The Property and its uses are in conformance with
all laws, ordinances and regulations. All licenses and permits necessary or
required under applicable laws, ordinance, rules and regulations for the
occupancy and use of the Improvements or other facilities of the Property have
been obtained and paid for by Seller, will be in effect and valid on the date of
Settlement, and if permitted by local law will, at the time of Settlement
hereunder, be transferred to Purchaser without payment therefor.
T. Litigation. There is no pending action, suit, proceeding or claim
affecting Seller or the Property or any portion thereof relating to or arising
out of the ownership, operation, use and occupancy of the Property and there is
no such threatened action, suit, proceeding or claim. Seller shall give
Purchaser prompt notice of any such litigation instituted prior to Settlement.
U. Manufacturers' Warranties. "Exhibit E" is a true and correct list of all
warranties of manufacturers, suppliers and/or installers relating to the
Property, or any part thereof, known to Seller. No treatment has been undertaken
with respect to termite infestation, fungi or dry rot on the Property other than
normal periodic service.
V. Flood Conditions. The Property does not lie within a flood plain and, to
the best of Seller's knowledge, has not suffered any damage or required any
extraordinary repairs due to flooding or inadequate drainage.
10. INDEMNIFICATION. Seller hereby agrees to indemnify and hold harmless
Purchaser from and against any and all claims, demands, liabilities, costs,
expenses, penalties, damages and losses, including, without limitation,
reasonable attorneys' fees, resulting from any misrepresentations or breach of
warranty or breach of covenant made by
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Seller in this Agreement.
11. CASUALTY LOSS AND CONDEMNATION. In the event that the Property or any
part thereof is damaged or destroyed by fire or other casualty, or in the event
condemnation or eminent domain proceedings (or private purchase in lieu thereof)
shall be commenced by any public or quasi-public authority having jurisdiction
against all or any part of the Property, then Seller shall promptly notify
Purchaser. Purchaser may, at its option, by giving written notice to Seller
within thirty (30) days after receipt of notice of such casualty or condemnation
proceedings, terminate this Agreement and the Deposit shall be returned to
Purchaser. In the event Purchaser does not elect to terminate this Agreement,
then all insurance proceeds and/or any awards in condemnation, as the case may
be, as well as all unpaid claims and rights in connection with such casualty or
condemnation, as the case may be, shall be assigned to purchaser at Settlement,
or, if paid to Seller prior thereto, shall be credited against the unpaid
balance of the Purchase Price due at Settlement. Seller shall not adjust or
settle any insurance claims or condemnation awards whatsoever without the prior
written approval of Purchaser; further, Purchaser and its counsel shall have the
right prior to Settlement to participate in all negotiations relating to any
such insurance claims or condemnation awards.
12. MAINTENANCE OF THE PROPERTY BEFORE SETTLEMENT. It shall be the
obligation of Seller to maintain the Property and to keep it in its present
condition and repair between the date hereof and the date of Settlement,
reasonable wear and tear excepted. During the period between the Effective Date
of this Agreement and the date of Settlement, Seller shall (1) manage and
operate the Property in a good and businesslike manner; (2) operate the Property
only in the ordinary and usual manner and not enter into any new lease or any
renewal or amendment of any tenant lease without the prior written consent of
Purchaser; (3) not become a party to any service contract or similar agreement
with respect to or affecting the Property without the prior written consent of
Purchaser; (4) maintain at its expense all existing fire and extended coverage
policies covering the Property; and (5) not mortgage or encumber the Property or
any part thereof. The consent of Purchaser to the above-referenced matters shall
not be unreasonably withheld or delayed by Purchaser.
13. RISK OF LOSS. The risk of loss by reason of fire or other casualty
between the date hereof and the date of recordation of the deed to the Property
to Purchaser shall be borne by Seller. Xxxxxxxxx, Xxxxxx & Xxxxx, P.A. shall
receive the fully- executed deed at the time of settlement and shall record said
deed among the Land Records of Xxxxxxxxx County, Maryland and will provide
Settlement Attorney with proof of recordation.
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14. POSSESSION. Seller shall give full possession of the Property to
Purchaser on the date of Settlement, and shall permit Purchaser to have
reasonable access thereto prior to Settlement.
15. SELLER'S DEFAULT. If Seller shall fail to perform its obligation to
make full Settlement in accordance with the terms hereof, or if Seller makes any
misrepresentation in this Agreement, or if Seller otherwise breaches this
Agreement, Purchaser may, at its sole option, require Seller to return the
Deposit to Purchaser and Purchaser may avail itself of any legal or equitable
rights including, without limitation, the right of specific performance and the
right to recover its costs, damages and all attorneys' fees.
16. PURCHASER'S DEFAULT. If Purchaser shall be obligated to proceed to
Settlement under the provisions of this Agreement and shall fail to do so
without justification, the Deposit shall be paid to Seller as agreed, as
liquidated damages, since actual damages are difficult to ascertain, whereupon
this Agreement shall terminate and the parties hereto shall be released from any
further liability or obligation to each other, it being expressly understood
that the payment of Purchaser's Deposit to Seller shall be the sole and
exclusive right and remedy of Seller.
17. CONSENT TO NEW CONTRACTS. Seller shall not, after the date of this
Agreement, enter into any contract or agreement relative to this Property or
modification or extension thereof, without the prior written consent of the
Purchaser.
18. BROKERS. Seller and Purchaser acknowledge that Seller has retained
Xxxxxxx & Xxxxxxxxx and XxXxxx & Company, Inc. ("Xxxxxxx") as its agents and
Purchaser has retained HBW Properties, Inc. d/b/a HBW Group ("HBW") as its
agent. Seller is only responsible to pay a 5% commission on the total sale price
as a result of this transaction. Seller and Purchaser each represents and
warrants to the other that no other agent, broker or finder has acted for it in
connection with this transaction and each hereby agrees to indemnify and hold
the other harmless from any loss, liability or damage (including attorneys' fees
and court costs) that may result from any brokerage claims or other similar
claims made in contradiction of said representation and warranty.
19. NOTICES. Any and all notices, requests or other communications required
or permitted hereunder shall be deemed to have been duly given if in writing and
if transmitted by hand delivery, or by registered or certified mail, return
receipt requested, and first-class postage prepaid, as follows:
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To Seller: State Farm Mutual Automobile Insurance Company
Attention: Xxxx Xxxxxxx
Xxx Xxxxx Xxxx Xxxxx (X-0)
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
with a copies to: State Farm Mutual Automobile Insurance Company
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxx Xxxxx Xxxx Xxxxx (X-0)
Xxxxxxxxxxx, Xxxxxxxx
State Farm Mutual Automobile Insurance Company
Attention: Xxxxx Xxxxxxx
Vice President - Operations
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxxx, Xxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
To Purchaser: Mid Atlantic Medical Services, Inc.
Attn: Xxxxx Xxxx, Assistant Secretary
0 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000X
Xxxxxxxx, Xxxxxxxx 00000
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or such other address as either party may furnish to the other by notice in
accordance with this paragraph. Notice shall be deemed effective when received.
20. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the jurisdiction where the Property is located.
21. HEADINGS. The captions and headings herein are for convenience and
reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
22. EXHIBITS. The Exhibits are attached to and are hereby made a part of
this Agreement as fully as if set forth in this text of this Agreement. If any
Exhibits are not attached as aforesaid, and if there is no time period specified
in this Agreement for attaching, such Exhibit shall be attached hereto within
ten (10) working days from the date hereof.
23. EFFECTIVE DATE. This Agreement shall be effective as of the last date
upon which the parties hereto have executed this Agreement, as demonstrated by
the date beside the signatures on the signature page ("Effective Date");
provided, however, and notwithstanding the foregoing, if Seller shall not have
executed this Agreement and returned the executed copy to Purchaser within five
(5) days after the date of Purchaser's execution of this Agreement, this
Agreement shall be of no force or effect, at Purchaser's option.
24. COUNTERPART COPIES. This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.
25. ASSIGNMENT. This Agreement is assignable by Purchaser with Seller's
consent, which consent will not be unreasonably denied. This Agreement may not
be assigned by Seller. Any reference to Purchaser in this Agreement shall
benefit, bind and likewise refer to any assignee of Purchaser.
26. RECORDATION. Seller and Purchaser agree that this Agreement shall not
be recorded in the land records of Xxxxxxxxx County or any other jurisdiction
without the consent of both parties to this Agreement.
27. SURVIVAL OF PROVISIONS. The provisions of this Agreement and the
representations and warranties of the Seller herein shall survive Settlement
hereunder and the execution and delivery of the deed of conveyance of the
Property and shall not be merged
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therein.
28. BINDING EFFECT. This Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their respective legal representatives, heirs,
executors, administrators, successors and assigns.
29. ENTIRE AGREEMENT. This Agreement and the Exhibits attached hereto
contain the final and entire agreement between the parties hereto with respect
to the sale and purchase of the Property and are intended to be an integration
of all prior negotiations and understandings. Purchaser, Seller and their agents
shall not be bound by any terms, conditions, statements, warranties or
representations, oral or written, not contained herein. No change or
modification of this Agreement shall be valid unless the same is in writing and
signed by the parties hereto. No waiver of any of the provisions of this
Agreement shall be valid unless the same is in writing and is signed by the
party against which it is sought to be enforced.
30. TIME OF ESSENCE. Time is of the essence to this Agreement.
31. OPTION CONSIDERATION. Purchaser and Seller hereby acknowledge that
certain real estate contracts in form similar to this Agreement have been
construed to be option contracts. Accordingly, simultaneous with the execution
of this Agreement, Purchaser has paid to Seller the sum of Fifty Dollars
($50.00) as consideration to Seller for the granting of any and all options to
Purchaser as contained in this Agreement, the receipt, sufficiency and adequacy
of which is hereby acknowledged. Said option consideration is separate and apart
from the Purchase Price for the Property and in no event will be returned to
Purchaser.
32. XXXXXXXXXX COUNTY; NOTICE OF AVAILABILITY OF SEWAGE DISPOSAL SYSTEM
(Required by Sec. 40-10A of the Xxxxxxxxxx County Code, 1981 Cumulative
Supplement) INTENTIONALLY OMITTED.
33. XXXXXXXXXX COUNTY; NOTICE OF RIGHT TO REVIEW APPLICABLE MASTER PLANS OR
THE GENERAL PLANS. INTENTIONALLY OMITTED.
34. GROUND RENT NOTICE. The Property is not subject to an annual ground
rent.
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35. AGRICULTURAL TRANSFER TAX NOTICE REQUIRED BY ARTICLE 81, SECTION 278F
OF THE MARYLAND CODE. Purchaser acknowledges that it has been notified by Seller
that the Property has not been assessed for farm or agricultural use under the
provisions of Article 81, Section 19(b) of the Maryland Code and that the land
being transferred is not subject to the Agricultural Transfer Tax imposed by
Article 81, Section 278F of the Maryland Code. Seller shall pay any Agricultural
Transfer Tax which may be payable with respect to the Property. The provisions
of this paragraph shall survive Settlement and the delivery of the deed to the
Property.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal on the day and year set forth below.
ATTEST: SELLER:
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
/S/ XXXXXXX X. XXX /S/ XXXXX X. XXXXXXXX
------------------- -----------------------
Assistant Secretary Senior Vice President
Date: 5/12/97
ATTEST: PURCHASER:
MID ATLANTIC MEDICAL SERVICES,
Inc.
/S/ XXX X. XXXXXXXXXX /S/ XXXXXXX X. XXXX
---------------------- --------------------
Date: 5/7/97
