EXHIBIT
10.1
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT,
dated as of March 6, 2007, by and between Presson Advisory, LLC, an
Arizona limited liability company (hereinafter
“Seller”) and OrthoLogic Corp., an Arizona corporation
(hereinafter “Buyer”).
WHEREAS, Seller
is the owner of certain real property, commonly known as 4832 East
McDowell Road, Phoenix, Arizona (the “Real Property”)
more particularly described on Exhibit “A” attached
hereto and made a part hereof; and
WHEREAS, Seller
is desirous of selling, and Buyer is desirous of purchasing the
Real Property together with all improvements thereon and all
rights, privileges, and appurtenances associated therewith and all
personal property and rights under Service Contracts (defined
below) that are transferred to Buyer in the manner described herein
(hereinafter, collectively, the “Property”);
NOW, THEREFORE,
for and in consideration of the mutual covenants herein contained,
it is agreed as follows:
Subject to Buyer’s approval of the
Property as described in the section of this Agreement entitled
“Contingency Period,” Buyer hereby agrees to purchase
the Property and Seller hereby agrees to sell the Property to Buyer
upon the terms and conditions set forth in this Agreement and any
addenda attached hereto.
Effective as of the date of Closing, Seller
agrees to transfer and assign to Buyer all warranties and
guarantees relating to the Property, all tangible fixtures and
personal property at the Property, water rights, if any, al l
service and other contracts affecting the operation or maintenance
of the Property, except any property management contract
(collectively, the "Service Contracts"), all licenses and
governmental approvals and permits of any nature relating to the
Property, all Property Documents (as that term is defined in
Paragraph 7 ). Notwithstanding anything contained in this
Agreement to the contrary, Buyer shall not be obligated to accept
assignment of or assume any Service Contract that is not
terminable, with or without cause, and without liability to Buyer,
upon thirty (30) days or less notice so that Buyer may, in its own
name and/or in the name of Seller, enforce such agreement and
warranties and collect any liquidated or other damages payable
pursuant thereto. Such Assignment shall be pursuant to a duly
executed Assignment and Assumption of Contracts in the form
attached hereto as Exhibit "C" (the "Assignment and Assumption of
Contracts"). Copies of all written warranties, guarantees,
contracts and agreements shall be delivered to Escrow Agent on or
before Closing, and delivered to Buyer at Closing. Seller agrees
that buyer shall also be provided access and use of the top plank
of the monument sign located on McDowell, or such other monument
signage as may be constructed on the Project, for no additional
consideration.
(A) In General
. The Purchase Price for the Property shall be Three Million Six
Hundred Fifteen Thousand Dollars ($3,615,000), payable by Buyer to
Seller as follows:
By an Initial Earnest Money check to be
delivered to Escrow Agent upon the deposit of this Agreement with
the Escrow Agent
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By an Additional Earnest Money check to be
delivered to Escrow Agent upon the expiration of the Contingency
Period
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By cash or wire at Closing (as defined below)
(the “Closing Payment”)
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(B) Independent
Contract Consideration . Buyer has, concurrently with its
execution of this Agreement, delivered to Seller Buyer’s
check in the amount of Fifty Dollars ($50.00), which amount Seller
and Buyer agree has been bargained for as consideration for
Seller’s execution and delivery of this Agreement. Such
consideration is in addition to and independent of any other
consideration or payment provided for in this Agreement and is
non-refundable in all events.
Upon the deposit of this Agreement with the
Escrow Agent, Buyer shall deposit with Escrow Agent an initial
earnest money deposit in the amount of $50,000.00 (the "Initial
Earnest Money"), which shall be in cash or check payable to Escrow
Agent. Upon the expiration of the Contingency Period, Buyer shall
deposit with Escrow Agent an additional earnest money deposit in
the amount of $100,000.00 (the "Additional Earnest Money"). The
Initial Earnest Money and the Additional Earnest Money are
collectively referred to herein as the “Earnest Money,”
and the Earnest Money shall be non-refundable to Buyer upon the
expiration of the Contingency Period (provided that Buyer shall not
have terminated this Agreement prior to the expiration of the
Contingency Period); provided, however, that even after the
expiration of the Contingency Period, Buyer shall be entitled to a
refund of the Earnest Money (in addition to any other rights
granted to Buyer expressly herein) in the event of a Seller default
that continues unremedied beyond any applicable notice and cure or
grace period or the failure of any condition precedent to closing
expressly set forth herein that by its terms provides Buyer with
the right to a return of the Earnest Money and/or a right to
terminate this Agreement. Escrow Agent is instructed to place the
Earnest Money in a federally insured money market or similar
account subject to immediate withdrawal at a local bank or savings
and loan institution. The Earnest Money shall be deemed to include
all interest earned thereon. The Earnest Money shall be credited in
favor of Buyer towards the Purchase Price upon the Closing. If the
Earnest Money is forfeited to Seller as provided by this Agreement,
Seller shall retain such funds, regardless of whether Buyer closes
this escrow, as consideration for, among other things, taking the
Property off the market while the Property is under contract. After
the expiration of the Contingency Period (provided that Buyer shall
not have terminated this Agreement prior to the expiration of the
Contingency Period), Buyer shall be entitled to the return of the
Deposit if and only if Seller fails to timely cure a default under
this Agreement or there is a failure of any condition precedent to
closing expressly set forth herein that by its terms provides Buyer
with the right to a return of the Earnest Money and/or a right to
terminate this Agreement, and further provided in any such event
that Buyer elects to cancel this Agreement.
This transaction shall be placed for Closing and
Escrow with Land America Lawyers Title, 2425 E. Camelback Road,
Suite 700, Phoenix, Arizona 85016; Attention Ms. Judy Sorensen;
telephone (602) 954-6774; fax (602) 954-7006; email
jsorensen@landam.com (hereinafter “Escrow Agent”).
Closing, Escrow and recording fees shall be paid by Seller. The
"Opening Date" shall be the date on which a fully executed copy or
counterpart copies hereof (including the acceptance by Broker), is
delivered to and accepted by Escrow Agent, which shall be no later
than two (2) business days after the date of this Agreement. Escrow
Agent is hereby instructed to notify Buyer and Seller in writing of
the Opening Date as soon as practicable. Each party shall cooperate
with the Escrow Agent in executing and delivering such instruments
and documents to the other or to any other entity that may be
reasonably necessary to consummate this transaction. Possession of
the Property shall be surrendered to Buyer on the date of
Closing.
The following adjustments to the Purchase Price
paid hereunder shall be made between Seller and Buyer and shall be
prorated (as applicable) on a per diem basis up to and including
the Closing Date:
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All expenses of
the Property shall be prorated and apportioned as of 12:01 a.m. on
the Closing Date, so that Seller shall bear all expenses with
respect to the Property for the period preceding the Closing Date.
Any expense amount which cannot be ascertained with certainty as of
the Closing Date shall be prorated on the basis of the parties'
reasonable estimates of such amount and shall be the subject of a
final proration outside of escrow sixty (60) days after the Closing
Date or as soon thereafter as the precise amounts can be
ascertained.
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Items to be
prorated shall include, without limitation, real estate taxes and
personal property taxes with respect to the Property; expenses
under all Service Contracts that are assumed by Buyer; and utility
charges payable by the owner of the Property.
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Real property
taxes, personal property taxes, special assessment districts,
improvement district assessments, association dues and fees, and
public improvement bonds applicable to the Property (collectively
referred to as “Periodic Taxes and Assessments”) will
be prorated between Seller and Buyer as of the Closing Date, based
upon the actual amount of taxes (excluding interest and penalties)
that are due and payable on the Property for the year in which the
closing occurs or, if this amount is not available, an estimate of
the taxes based upon the best available information to Escrow
Agent. In addition to Seller being responsible to fully pay and
release any Seller liens, Seller will be responsible for the
payment of: (i) all Periodic Taxes and Assessments that are
attributable to the period of time prior to the Closing Date; and
(ii) all penalties, late fees, and the like attributable to any
Periodic Taxes and Assessments that were not paid when due. Buyer
will be responsible for the payment of all Periodic Taxes and
Assessments that are attributable to the period of time on and
after the Closing Date.
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If possible, in
lieu of prorating utility charges, utility readings will be taken
on the day prior to the Closing Date. Seller shall pay the charges
for utility services based on such reading, and Buyer shall
contract for such utilities and pay all utility expenses incurred
after the Closing Date.
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At the Closing,
the net adjustment by reason of the closing costs incurred by the
parties and by the foregoing prorations and apportionments, if in
favor of Seller, shall be paid in immediately available funds to
Escrow Agent, or, if in favor of Buyer, shall be paid by set off
against the cash portion of the Purchase Price due at
Closing.
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6.
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CONTINGENCY
PERIOD AND CLOSING DATE
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The
“Contingency Period” for the purposes of this Agreement
will expire at 5:00 p.m. (Arizona time) forty five (45) days after
the Opening Date. In the event Buyer determines for any reason
whatsoever that the Property or its condition is unsatisfactory or
deficient in any respect, Buyer may elect to terminate this
Agreement by delivering written notice thereof to Seller prior to
the expiration of the Contingency Period. Buyer's failure to timely
give such notice of termination shall be deemed Buyer’s
approval of the Property and waiver of this Section 6. If Buyer
elects to terminate this Agreement pursuant to this paragraph, the
Escrow Agent shall immediately refund the Earnest Money to Buyer
and, except as may otherwise be expressly provided in this
Agreement, the parties shall thenceforth have no further rights or
obligations under this Agreement.
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The completion
of the purchase and sale transaction described in this Agreement
(“Close of Escrow”) will occur on a date selected by
the Buyer that is reasonably acceptable to Seller (“Closing
Date”), which date shall be no later than thirty (30) days
after the expiration of the Contingency Period.
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This Agreement and any liability on behalf of
the Buyer in connection therewith, is contingent upon Buyer
receiving the following items and being satisfied, or waiving
satisfaction, in its sole discretion, with the condition of the
Property, before the expiration of the Contingency
Period:
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Within five (5)
calendar days after the Opening Date, Seller shall
deliver to Buyer true and complete copies
(including all modifications and correspondence) of the following
documents to the extent possessed by Seller (the “Property
Documents”):
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(i)
Copies of all Service Contracts,
licenses and permits affecting the ownership, use, operation,
maintenance, repair and development of the Property;
(ii)
Copies of all insurance policies
now in effect with respect to the Property, copies of any claims
with respect to such policies;
(iii)
All required governmental approvals
and permits obtained to date and all notices and correspondence to
and from any governmental agencies or the insurers of the Property
relating to the use of the Property;
(iv)
Copies of all documents relating to
zoning of the Property, including any special use, nonconforming
use or zoning variance granted with respect to the
Property;
(v)
Any currently existing plans and
specifications for the improvements, any engineering reports, any
mechanical reports (including HVAC), roof reports, seismographic
reports, ADA compliance reports, and any architects’
certifications, certifying the square footage of the
improvements;
(vi)
All studies and reports relating to
(a) hazardous or toxic materials or otherwise, including all Phase
I and Phase II environmental reports, (b) water, sewage and
drainage, or (c) which may in any way affect the Buyer’s use
of the Property;
(vii)
Copies of real estate tax bills
(including special assessments) for the prior year;
(viii)
Any construction warranties,
including roof, building systems and landscaping;
(ix)
An estimate of the future
allocation of common area expenses, which may be more thoroughly
set forth in the CC&Rs (defined below); and
(x)
Copies of all building plans,
diagrams and drawings, including mechanical, electrical, HVAC and
communications systems.
Seller's obligation to provide Buyer with the
Property Documents only extends to such documents that are in
Seller’s possession. Seller’s inability to deliver or
cause to be delivered any documents described in this Section 7
because it does not possess such documents shall not (a) extend the
Contingency Period, or (b) constitute a default by Seller
hereunder, and in the event of such failure, Buyer’s sole
remedy shall be to terminate this Agreement prior to the end of the
Contingency Period and have the Earnest Money refunded to
Buyer.
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During the
Contingency Period Buyer shall have the right to physically
inspect, and to cause one or more engineers or other
representatives of Buyer to physically inspect, the Property
without interfering with Seller's operation of the Property and to
make such other review of information concerning the Property
provided by the Seller and related information as Buyer deems
necessary. All inspection fees, appraisal fees, engineering fees
and other expenses of any kind incurred by Buyer relating to the
inspection of the Property will be solely Buyer's expense. Seller
shall cooperate with Buyer in all reasonable respects in making
such inspections; however, Seller shall not be obligated to expend
funds or other costs in connection with such cooperation. Seller
hereby reserves the right to have a representative present at the
time Buyer conducts any inspection of the Property. Buyer shall
notify Seller not less than one (1) business day in advance of
making any such inspection. Buyer agrees to indemnify and hold
Seller, its tenants, contractors and employees, harmless from any
and all injuries, losses, liens, claims, judgments, liabilities,
costs, expenses or damages (including reasonable attorneys' fees
and court costs) sustained by or threatened against Seller to the
extent such result from or arise out of any inspections by Buyer or
its authorized representatives pursuant to this paragraph b);
provided that Buyer’s liability hereunder shall not extend to
any injuries, losses, liens, claims, judgments, liabilities, costs,
expenses or damages that arise as a result of the presence of
hazardous materials on the Property that are uncovered as part of
Buyer’s inspection.
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All information
disclosed by Seller to Buyer pursuant to paragraphs (A) and (B)
above shall be treated by Buyer as confidential and secret and
shall not be revealed or disclosed by Buyer to any third party
whatsoever, provided, however, that such information may be
disclosed to prospective lenders, investors, legal counsel,
consultants or assignees of Buyer provided such third parties agree
to maintain the confidentiality of such information. The aforesaid
obligation of confidentiality shall not apply to any part of the
information provided to Buyer that Buyer can prove by clear and
convincing evidence was or has become publicly available through no
fault of Buyer.
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Within five (5)
days from the Opening Date, Escrow Agent shall deliver to Buyer and
Seller a current Commitment for Title Insurance or a Preliminary
Title Report, together with legible copies of all documents
referred to therein (collectively, the "Title Report") from the
Title Insurer. The Title Report shall show the status of title to
the Property as of the date of the Title Report and shall list
Buyer as the proposed insured.
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Within thirty
(30) days from the Opening Date, Seller, at Seller’s sole
cost and expense, shall deliver to Escrow Agent and Buyer a current
ALTA survey of the Property (the "Survey"). In addition, as a
condition to Closing, Seller, at Seller’s sole cost and
expense, shall cause the real property of which the Property is a
part to be legally subdivided (the “Lot Split”), and
shall cause the revised legal descriptions for the Property after
the Lot Split and the location of the Lot Split to be shown on the
Survey. Seller reserves the right to record such customary
covenants, conditions, easements and restrictions
(“CC&Rs”) as Seller deems reasonably necessary
relating to the Lot Split, each of which shall be subject to the
prior approval of Buyer. Seller shall use diligent and commercially
reasonable good faith efforts to complete the Lot Split as promptly
as possible after the Opening Date. If, notwithstanding such
efforts, Seller is unable to complete the Lot Split by the Closing
Date, then Buyer shall have the right to either grant an extension
of the Closing Date or cancel this Agreement and receive the return
of its Earnest Money.
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Buyer shall
have a period of time beginning upon its receipt of the Title
Report and legible copies of all documents referred to therein, and
ending at the later of (i) ten (10) business days following Buyer's
receipt of both the Title Report and the Survey, or (ii) 5:00 p.m.,
Mountain Standard Time, five (5) days prior to the date the
Contingency Period expires (the "Title Review Period"), to review
the Title Report and to give Seller and Escrow Agent notice of any
title exception which is unacceptable to Buyer. Buyer shall have an
additional five (5) business days after each receipt of any amended
Title Report and any underlying documents relating to such
amendment and/or any amended Survey to give Seller and Escrow Agent
notice of any title exception not previously listed that is
unacceptable to Buyer (including, without limitation, any exception
discovered by Title Insurer’s physical inspection of the
Property or any so-called “survey exception” added to
the Title Report or any amended Title Report). If Buyer gives
notice of dissatisfaction as to any exception to title as shown in
the Title Report or any amended Title Report or amended Survey,
Seller shall notify Buyer in writing prior to the end of the
Contingency Period (or within three (3) business days of Seller's
receipt of any objection given by Buyer after the end of the
Contingency Period, but in a timely manner as provided herein) that
(i) it will eliminate such objections by
the Closing Date or (ii) it is unwilling or
unable to eliminate such objections. Buyer's failure to timely
approve or disapprove any exception shall be deemed Buyer’s
approval thereof. Upon any cancellation in accordance with this
Section, Escrow Agent shall, without further instruction from
either party, return the Earnest Money (or so much thereof as has
been deposited into escrow) and all interest earned thereon
together with all documents deposited in escrow by Buyer to Buyer,
return all documents deposited in escrow by Seller to Seller, and
this Agreement and the escrow shall terminate.
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Conveyance of the Property shall be by Special
Warranty Deed in the form of Exhibit "B" attached hereto (the
“Deed”). Seller shall cause Escrow Agent to provide
Buyer with an ALTA extended coverage owner's policy of title
insurance (the "Owner's Title Policy") at the Closing or as soon
thereafter as is reasonably possible. The Owner's Title Policy
shall be issued by the Title Insurer in the full amount of the
Purchase Price, be effective as of the Closing Date, and shall
insure Buyer that fee simple title to the Property is vested in
Buyer, subject only to: (i) the usual printed exceptions and
exclusions contained in such title insurance policies; (ii) the
exceptions to title approved by Buyer as provided for in paragraph
7 (f) a
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