EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
BETWEEN
ROCKY MOUNTAIN MEDICAL CENTER, INC.,
A DELAWARE CORPORATION,
AND
BOARD OF EDUCATION OF GRANITE SCHOOL DISTRICT,
A BODY CORPORATE OF THE STATE OF UTAH
DATED: DECEMBER 15, 2003
TABLE OF CONTENTS
1. Recitals.................................................................................................. 1
2. Description of the Property............................................................................... 1
2.1 Real Property.................................................................................... 1
2.2 Personal Property................................................................................ 1
2.3 Contracts and Permits............................................................................ 2
3. Purchase Price............................................................................................ 2
4. Escrow Agreement and Earnest Money Deposits............................................................... 2
5. Special Warranty Deed..................................................................................... 2
5.1 Deed Restriction................................................................................. 2
6. 1031 Exchange............................................................................................. 3
7. Water Rights.............................................................................................. 3
8. Seller Disclosures........................................................................................ 3
8.1 Environmental.................................................................................... 3
8.2 Survey........................................................................................... 3
8.3 Zoning........................................................................................... 3
8.4 Use Restrictions................................................................................. 3
8.5 Leases........................................................................................... 3
9. Transfer of the Property and Permitted Exceptions......................................................... 4
9.1 Conveyance of Property and Title Insurance....................................................... 4
9.2 Extended Coverage and Endorsements............................................................... 4
9.3 Permitted Exceptions............................................................................. 4
9.4 Approval of Title................................................................................ 4
9.5 Condition of Property............................................................................ 4
10. Due Diligence............................................................................................. 5
10.1 Due Diligence Deadline........................................................................... 5
10.2 Access........................................................................................... 5
10.3 Objection........................................................................................ 5
10.4 Termination...................................................................................... 6
10.5 Environmental Matters............................................................................ 6
11. Leases ................................................................................................. 6
12. Granite Liability and Indemnity........................................................................... 6
13. Seller's Liability and Indemnity.......................................................................... 6
14. Closing .................................................................................................. 7
14.1 Closing Time and Place........................................................................... 7
14.2 Granite Required to Deliver...................................................................... 7
14.3 Seller Required to Deliver....................................................................... 7
14.4 Prorations....................................................................................... 7
14.5 Property Taxes................................................................................... 8
14.6 Costs............................................................................................ 8
14.7 Conditions to Seller's Obligations............................................................... 8
14.8 Conditions to Granite's Obligations.............................................................. 8
15. Brokers .................................................................................................. 9
16. Seller's Representations and Warranties................................................................... 9
16.1 Authority........................................................................................ 10
16.2 The Property..................................................................................... 10
16.3 No Conflict...................................................................................... 10
16.4 Liabilities...................................................................................... 10
16.5 No Claims........................................................................................ 10
16.6 Leases........................................................................................... 10
16.7 No Foreign Taxpayers............................................................................. 11
16.8 No Special Assessments........................................................................... 11
16.9 Cooperation of Seller............................................................................ 11
16.10 Transition Assistance............................................................................ 11
17. Granite's Representations and Warranties.................................................................. 11
17.1 Organization and Authority....................................................................... 11
17.2 No Conflict...................................................................................... 11
17.3 No Claims........................................................................................ 11
17.4 Cooperation of Granite........................................................................... 12
18. Possession................................................................................................ 12
19. Risk of Loss.............................................................................................. 12
20. Termination, Remedies and Enforceability.................................................................. 12
20.1 Termination...................................................................................... 12
20.2 Default by Granite............................................................................... 12
20.3 Default by Seller................................................................................ 13
21. General Provisions........................................................................................ 13
21.1 Time is of the Essence........................................................................... 13
21.2 Notices.......................................................................................... 13
21.3 Further Assurances............................................................................... 14
21.4 No Joint Venture................................................................................. 14
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21.5 Attorneys' Fees.................................................................................. 14
21.6 Modification or Amendments....................................................................... 14
21.7 Successors and Assigns........................................................................... 14
21.8 Exhibits......................................................................................... 14
21.9 Separate Counterparts............................................................................ 14
21.10 Entire Agreement................................................................................. 14
21.11 Applicable Law................................................................................... 14
21.12 Authority of Signators........................................................................... 15
21.13 Waiver of Covenants, Conditions or Remedies...................................................... 15
21.14 No Assignment.................................................................................... 15
21.15 Time Computation................................................................................. 15
21.16 Facsimile Documents.............................................................................. 15
21.17 Captions......................................................................................... 15
21.18 Construction..................................................................................... 15
21.19 Partial Invalidity............................................................................... 16
21.20 Confidentiality.................................................................................. 16
SCHEDULE OF EXHIBITS
A Legal Description of Property
B Escrow Agreement
C Special Warranty Deed
D Assignment and Assumption Agreement
E Granite Closing Certificate
F Non-Foreign Certificate
G Seller Closing Certificate
H Bill of Sale
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and
entered into as of the 15th day of December, 2003, by and between ROCKY MOUNTAIN
MEDICAL CENTER, INC., a Delaware corporation, as seller, having an address of
113 Seaboard Lane, Suite A200, Franklin, Tennessee 37067 ("Seller"), and BOARD
OF EDUCATION OF THE GRANITE SCHOOL DISTRICT, a body corporate of the State of
Utah, as buyer, whose address is 340 East 3545 South, Salt Lake City, Utah 84115
("Granite").
RECITALS:
A. Seller is the owner of certain Property (as hereafter
defined) in Salt Lake County, Utah.
B. Seller desires to sell the Property to Granite on the
terms and conditions and for the consideration herein set forth.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, do hereby agree as follows:
AGREEMENT:
1. RECITALS. The parties hereto agree that the Recitals
set forth above are accurate and the same are incorporated herein by this
reference.
2. DESCRIPTION OF THE PROPERTY. Concurrently herewith,
Seller agrees to sell and Granite agrees to purchase the following (hereafter
the "Property"):
2.1 Real Property. The real property located at
approximately 2500 South State Street in Salt Lake City, Salt Lake
County, Utah, consisting of approximately 23.50 acres, known as Tax
I.D. Numbers 16-19-303-021-4001, 16-19-303-021-4002, 16-19-355-035-000,
16-19-356-031-000, 16-19-356-032-000, 16-19-356-033-000,
16-19-353-027-000 and 16-19-353-028-000, as more particularly described
in Exhibit "A" hereto, together with all buildings, structures,
improvements, easements and rights of way thereon or pertaining
thereto, including but not limited to the buildings known as the MOB,
the Hospital, the Day Care and the Annex Building (the "Real
Property").
2.2 Personal Property. All equipment, fixtures,
furnishings, tools, replacement parts and any other supplies or
personal property (excluding any medical records, medical equipment or
medical fixtures that, with Granite's permission, can be removed by
Seller prior to the Closing, as hereinafter defined), on the Real
Property (the "Personal Property"). During the Due Diligence Period,
Seller and granite agree to meet on the Real Property and to agree
regarding what items of personal property (consisting of medical
equipment and medical fixtures) may be removed from the Property by
Seller
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prior to Closing, in Granite's reasonable discretion.
2.3 Contracts and Permits. All licenses,
permits, contracts and agreements pertaining solely to or reasonably
necessary to the use, operation or ownership of the Real Property and
Personal Property, to the extent assignable and acceptable to Granite
(the "Contracts and Permits").
3. PURCHASE PRICE. The purchase price for the Property
shall be Fifteen Million Two Hundred Fifty Thousand and No/100 Dollars
($15,250,000.00), the "Purchase Price", which shall be paid at the Closing (as
hereafter defined) in cash or certified funds, in U.S. dollars.
4. ESCROW AGREEMENT AND EARNEST MONEY DEPOSITS. Seller
and Granite, concurrently herewith, have executed an Escrow Agreement dated as
of December 15, 2003, along with Merrill Title Company, having an address of
6965 Union Park Center, Suite 200, Midvale, Utah 84047 ("Escrow Agent"), a copy
of which is attached hereto as Exhibit "B" (the "Escrow Agreement"). Pursuant to
this Agreement and the Escrow Agreement, Granite shall, concurrently herewith,
pay One Hundred Twenty-Five Thousand Dollars ($125,000.00) into escrow as an
earnest money deposit (the "Initial Deposit") for the purchase of the Property.
In addition, unless Granite shall have terminated this Agreement on or before
the Due Diligence Deadline pursuant to Section 10.4, Granite shall deposit an
additional One Hundred Twenty-Five Thousand Dollars ($125,000.00) (the
"Additional Deposit") with the Escrow Agent within ten (10) days following the
Due Diligence Deadline (the Initial Deposit and the Additional Deposit, if any,
are herein collectively referred to as the "Deposit"). Unless this Agreement is
otherwise terminated or a default occurs (in which event Section 20 below shall
control the disposition of the Deposit), at the Closing, Escrow Agent shall
disburse and distribute to Seller the Deposit to be applied against the Purchase
Price.
5. SPECIAL WARRANTY DEED. The Property shall be conveyed
to Granite or its designees at Closing by the execution and delivery from Seller
of a Special Warranty Deed in the form of Exhibit "C" hereto (the "Deed").
5.1 Deed Restriction. The parties agree that the
Property will be conveyed to Granite with the following restriction set
forth in the Deed (the "Deed Restriction"):
For a period of twenty (20) years after the date of
this Deed, no part of the Property shall be used to
provide any inpatient hospital, commercial
laboratory, x-ray, radiological "imaging",
radiographic service, outpatient surgical facility,
or any other medical or related service. If and to
the extent that this restriction is or must be
dependent upon the existence of other property
benefited by the restriction, this restriction is
intended to benefit the existing hospital properties
of Iasis Healthcare Corporation (the parent
corporation of Seller) and its affiliates in the Salt
Lake City, Utah metropolitan area, as well as any
other real property in the Salt Lake City, Utah,
metropolitan area hereafter acquired by Seller and
its affiliates for
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medical purposes. This restriction shall not apply to
nor preclude any use of the Property by Granite, or
its successors or assigns, for educational purposes
(including medical education other than education of
persons training to become medical doctors).
6. 1031 EXCHANGE. Granite understands that Seller may
intend to have some or all of the Purchase Price used for a tax-deferred
exchange pursuant to Section 1031 of the Internal Revenue Code of 1986 (the
"Code"), and the parties agree to execute such additional documents necessary to
accommodate such exchange, so long as it does not delay the Closing (as defined
below) or result in cost or expense to Granite. For any property so exchanged,
Seller intends to hold such exchange parcel for productive use in a trade or
business or for investment according to the Code.
7. WATER RIGHTS. The transfer of Property under the
terms of this Agreement includes any water rights pertaining solely to the
Property, currently owned by Seller, whether appurtenant or otherwise.
8. SELLER DISCLOSURES. Within ten (10) days after the
execution of this Agreement, Seller shall provide Granite with (a) a commitment
for title insurance issued by Escrow Agent pertaining to the Property (the
"Commitment"), and (b) the following information concerning the Property, to the
extent within the possession and control of Seller (the "Seller Disclosures"):
8.1 Environmental. A copy of any environmental
audit or report pertaining to the Property, not previously produced to
Granite;
8.2 Survey. A copy of any survey pertaining to
the Property or any part thereof, whether or not prepared by or on
behalf of Seller;
8.3 Zoning. Copies of any documents pertaining
to the current zoning of the Property;
8.4 Use Restrictions. Copies of any documents
pertaining to any restrictions concerning the use or occupancy of the
Property; and
8.5 Leases. Copies of all leases, contracts or
other agreements now in effect and pertaining to the Property or any
part thereof.
In addition, Seller will make available for Granite's
inspection at the Property (and copying by Granite, at Granite's expense) all
plans, drawings, specifications, tests and other reports in the custody or
control of Seller pertaining to the Property.
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9. TRANSFER OF THE PROPERTY AND PERMITTED EXCEPTIONS.
9.1 Conveyance of Property and Title Insurance.
Fee simple title to the Property shall be conveyed by Seller to Granite
at Closing by execution of the Deed, subject to the Permitted
Exceptions, as hereinafter defined, and the Deed Restriction. Granite's
interest in the Property shall be insured by an Owner's ALTA Standard
Coverage Form Policy of Title Insurance issued by the Escrow Agent in
the amount of the Purchase Price (the "Title Policy"), the cost of
which shall be paid by Seller.
9.2 Extended Coverage and Endorsements. Granite
may obtain at its own cost and expense, extended title insurance
coverage and such endorsements as it deems appropriate.
9.3 Permitted Exceptions. The rights, title and
interests insured by the Title Policy shall be free and clear of all
encumbrances, liens, restrictions and other matters of record affecting
title to each parcel of the Property except the following (the
"Permitted Exceptions"):
(a) Real property taxes for the year
2004, which are a lien but not yet due and payable or
delinquent;
(b) The Deed Restriction described in
Section 5.1;
(c) All easements and rights of way of
record as disclosed in the Commitment; and
(d) Such other matters affecting title
to the Property which are disclosed in the Commitment and
which are approved by Granite as provided in Section 9.4
below.
9.4 Approval of Title. In addition to the
Commitment, within ten (10) days from the execution of this Agreement,
Seller shall also deliver to Granite legible copies of all documents
referred to or described therein. All title matters in the Commitment
are subject to approval or disapproval by Granite prior to the Due
Diligence Deadline (as defined below). If Granite objects to any
exception contained in the Commitment that Seller is unwilling or
unable to remove by or on the Closing Date, Granite may, at its option,
terminate this Agreement and recover the Deposit as Granite's sole
remedy, or may proceed to close without reduction in the Purchase Price
except for reductions in an aggregate amount not exceeding $100,000
that are necessary to remove liens securing liquidated sums.
9.5 Condition of Property. EXCEPT AS EXPRESSLY
SET FORTH IN SECTION 16 HEREOF, SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED OR STATUTORY, RELATING
TO THE PROPERTY OR ANY PORTION THEREOF, OR RELATING TO THE CONDITION OF
THE PROPERTY. SELLER MAKES NO
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WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSES IN RESPECT OF THE
PROPERTY, AND THE SAME IS AND WILL BE SOLD AND CONVEYED IN AN "AS IS,
WHERE IS" CONDITION, WITH ALL FAULTS. Without limiting the foregoing,
and except as expressly set forth in Section 16 hereof, Seller makes no
representations or warranties with respect to: (a) environmental
matters relating to the Property or any portion thereof; (b) geological
conditions, including without limitation faulting, subsidence,
subsurface conditions, water table, underground water reservoirs and
limitations regarding the withdrawal of water therefrom; (c) whether
and the extent to which the Property or any portion thereof is affected
by any stream (surface or underground), body of water, flood prone
area, flood plain, floodway or special flood hazard; (d) drainage; (e)
soil conditions; (f) zoning to which the Property or any portion
thereof is subject; (g) the availability or continued availability of
utilities, including without limitation water, sewage, gas and
electricity; (h) usages of adjoining property; (i) access to public
ways adjoining the Property or any portion thereof; and (j) the value,
compliance with building codes or other regulations, size, location,
age, use, merchantability, design, quality, description, durability,
operation of condition of the Property or any portion thereof, or
suitability of the Property or any portion thereof for Purchaser's
purpose, or fitness for any use or purpose whatsoever.
10. DUE DILIGENCE.
10.1 Due Diligence Deadline. Granite shall have
30 days from the date of execution of this Agreement by all parties
(the "Due Diligence Deadline") to complete its review of and to approve
or disapprove of the Seller Disclosures, and to conduct and complete
all inspections, geological and geotechnical investigations, including
but not limited to landscaping, utilities, water, zoning and
governmental approvals, and to conduct such other physical inspections,
investigations, reviews and appraisals as Granite may deem necessary,
and any other due diligence pertaining to the Property Granite may deem
necessary (the "Due Diligence").
10.2 Access. Seller agrees to provide Granite
reasonable access to enter upon the Property, sufficient to complete
all Due Diligence. The parties further agree that such access will not
be without notice to Seller at least 12 hours before the proposed
inspection and investigation. Any testing, inspection or investigation
shall be conducted in such a manner as to be non-invasive and shall not
interfere with any use by Seller of the Property. Granite will be
responsible to restore the Property to substantially its prior
condition and to restore or repair any damage to the Property resulting
from such Due Diligence. The obligations of Granite under this Section
10.2 will survive any termination of this Agreement and/or the Closing.
10.3 Objection. In the event Granite has any
objections to the Commitment or the Seller Disclosures, it shall
communicate such objections to Seller in writing on or before ten (10)
days prior to the Due Diligence Deadline. The failure to timely notify
Seller in writing of any such objections shall constitute a waiver
thereof. In the event of such timely objections, Seller shall have
until 5:00 p.m. on the day before the Due Diligence Deadline to resolve
such objections to the reasonable satisfaction of
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Granite, the failure to do so resulting in, at the option of Granite
either (a) a waiver of such objection, or (b) a termination of this
Agreement and the return of the Deposit, together with all accrued
interest thereon to Granite.
10.4 Termination. Granite shall have the right to
give Seller written notification on or before the Due Diligence
Deadline that it has determined, in light of any Due Diligence and in
its sole discretion, not to purchase the Property, and that Granite is
terminating this Agreement. If on or before the Due Diligence Deadline,
such written notice of termination is given by Granite, then this
Agreement shall be terminated and each party shall have no further
obligation to the other party (except as provided in Section 10.2 of
this Agreement), and the Escrow Agent shall return the Deposit to
Granite. After the Due Diligence Deadline, including any extensions
thereof, neither party shall have any right to terminate this
Agreement, and the Deposit shall be nonrefundable.
10.5 Environmental Matters. Notwithstanding any
provision of this Agreement that may be to the contrary, Granite has
previously obtained such reports and conducted such investigations as
it will require with respect to the presence or absence of hazardous
materials in or on the Property and compliance by the Property with
applicable environmental laws and regulations, and Granite acknowledges
and agrees that it will conduct no further investigations as to such
matters prior to the Closing.
11. LEASES. If Seller is the lessor or lessee under any
leases pertaining to said Property or any part thereof, Granite, at its sole
election, shall have the right to assume all rights and obligations under any
such leases as of Closing. To the extent any such lease pertains to any other
property owned or operated by Seller, said lease shall remain in full force and
effect, with the amount of rent thereunder to be pro-rated according to the
actual acreage subject to said lease after Closing.
12. GRANITE LIABILITY AND INDEMNITY. Granite hereby
agrees to protect, defend, indemnify and hold harmless Seller and its employees,
representatives, trustees, agents, successors and assigns, from and against any
liabilities, claims, losses, liens, demands, costs, expenses and causes of
action of any kind or character whatsoever resulting from, relating to, arising
out of, or incurred in connection with acts or omissions of Granite with respect
to the Property, or any part thereof, which occur subsequent to the Closing or
during the course of any Due Diligence conducted by or on behalf of Granite, to
the extent not caused or in any way contributed to by Seller.
13. SELLER'S LIABILITY AND INDEMNITY. Seller hereby
agrees to protect, defend, indemnify and hold harmless Granite and its officers,
directors, employees, trustees, shareholders, representatives, subsidiaries,
agents, successors and assigns, from and against any liabilities, claims,
losses, liens, demands, costs, expenses and causes of action of any kind or
character whatsoever resulting from, relating to, arising out of, or incurred in
connection with acts or omissions of Seller with respect to the Property, or any
part thereof, which occur prior to the Closing, to the extent not caused or in
any way contributed to by Granite.
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14. CLOSING.
14.1 Closing Time and Place. The transaction
contemplated by this Agreement shall close at the offices of the Escrow
Agent on January 30, 2004, at 10:00 a.m., unless otherwise agreed (the
"Closing Date" or the "Closing"), unless such date is extended, in
writing, by mutual agreement of the parties hereto.
14.2 Granite Required to Deliver. On or before
the Closing Date, Granite shall deliver to the Escrow Agent:
(a) by cashier's check or wire transfer
the Purchase Price for the Property, less the Deposit, plus
any additional funds required of Granite to complete the
Closing;
(b) an Assignment and Assumption
Agreement in the form of Exhibit "D" hereto pertaining to the
Contracts and Permits (the "Assignment and Assumption") duly
executed and acknowledged by Granite;
(c) a Closing Certificate in the form
of Exhibit "E" hereto; and
(d) such other documents as may
reasonably be required to complete the Closing in accordance
with this Agreement.
14.3 Seller Required to Deliver. On or before the
Closing Date, Seller shall deliver to the Escrow Agent:
(a) the Deed;
(b) a non-foreign certificate in the
form of Exhibit "F" hereto;
(c) a Closing Certificate in the form
of Exhibit "G" hereto;
(d) a Bill of Sale in the form of
Exhibit "H" hereto;
(e) the Assignment and Assumption; and
(f) such other documents as may
reasonably be required to complete the Closing in accordance
with this Agreement.
14.4 Prorations. The following shall be prorated
as of the end of the Closing Date:
(a) All rents receivable or payable
under any lease; and
(b) All accounts receivable or payable
under any of the Contracts or Permits.
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14.5 Property Taxes. Seller shall be responsible
for all property taxes relating to the period prior to the Closing
Date. Granite is a governmental entity exempt from such taxes.
14.6 Costs. The costs associated with the Closing
shall be paid as follows:
(a) Seller and Granite shall each pay
1/2 of any and all recording and escrow fees charged by the
Escrow Agent, and all other standard costs related to the
Closing not described below;
(b) Seller shall pay the premium for
the Title Policy;
(c) Granite shall pay the cost of any
extended coverage or endorsements to the Title Policy;
(d) Seller and Granite shall each pay
their own respective attorneys' fees; and
(e) Granite shall pay its own costs and
expenses incurred by it in connection with its Due Diligence
with respect to the Property.
14.7 Conditions to Seller's Obligations. Seller's
obligation to consummate the transaction contemplated by this Agreement
are subject to the satisfaction of the following conditions or Seller's
written waiver of such conditions:
(a) Seller's Directors shall have
approved and authorized this Agreement and the transactions
contemplated hereby (this contingency to be satisfied, if at
all, not later than December 19, 2003);
(b) Granite shall have performed all
obligations to be performed by it pursuant to this Agreement,
and Granite's representations, warranties and covenants set
forth herein shall be true and correct as of the Closing Date;
and
(c) No event or circumstance shall have
occurred which would make any of Granite's representations and
warranties in this Agreement untrue.
14.8 Conditions to Granite's Obligations.
Granite's obligation to consummate the transaction contemplated by this
Agreement and to purchase and acquire the Property are subject to the
satisfaction of the following conditions or Granite's written waiver of said
conditions:
(a) Granite shall have met in an open
meeting pursuant to Utah Law to vote upon and approve this
Agreement and the transactions contemplated
8
hereby (this contingency to be satisfied, if at all, not later
than the Due Diligence Deadline);
(b) Granite shall not have delivered to
Seller, on or prior to the Due Diligence Deadline, any written
notice stating that Granite elected not to purchase or acquire
the Property;
(c) Granite's purchase of the Property
is contingent upon satisfactory proof that Seller can transfer
and convey the Property to a public entity without any
conditions, restrictions, limitations or approvals (other than
the Deed Restriction and Permitted Exceptions), which
condition must be satisfied or waived by Granite not later
than the Due Diligence Deadline;
(d) Granite's purchase of the Property
is contingent upon the approval and creation of an appropriate
municipal building authority, and the required financing by
said authority through the issuance of bonds sufficient to
finance the purchase of the Property. This contingency must be
exercised, satisfied or waived by Granite not later than the
Due Diligence Deadline;
(e) Seller shall have performed all
obligations to be performed by it pursuant to this Agreement,
and Seller's representations, warranties and covenants set
forth herein shall be true and correct as of the Closing Date;
(f) Escrow Agent shall be prepared to
issue the Title Policy (including any endorsements reasonably
requested and paid for by Granite) for the Property, subject
only to the Permitted Exceptions; and
(g) No event or circumstance shall have
occurred which would make any of Seller's representations and
warranties in this Agreement untrue.
15. BROKERS. The parties hereto acknowledge that CB
Richard Ellis and Merrick Wright have acted as the listing broker and the
listing agent, respectively for Seller and, except for Advanced Asset Managers,
Inc. and Merrill Turnbow who informed Granite regarding the availability of the
Property and showed it to Granite, no other agents or brokers have been involved
in the transaction the subject of this Agreement. Seller agrees to pay at
Closing all commissions owed to its listing broker and listing agent according
to their separate agreement, and to Advanced Asset Managers, Inc. and its
listing agents a commission of 1.7% of the Purchase Price for their respective
services. Seller and Granite shall each indemnify the other with respect to any
other claims for any fees or commissions made or claimed by any person or entity
with whom such party dealt in connection with the transaction contemplated by
this Agreement. The provisions of this Section 15 shall survive the termination
of this Agreement and/or the Closing.
16. SELLER'S REPRESENTATIONS AND WARRANTIES. In addition
to any other warranties, representations and covenants of Seller contained in
other sections of this Agreement, Seller hereby represents and warrants to
Granite that, as of the date of this Agreement and as of
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the Closing, to the best of Seller's current actual knowledge, but without any
due diligence on the part of Seller, the following facts are and shall be true
and correct:
16.1 Authority. Subject to receipt of the
approval and authorization described in Section 14.7(a), Seller has
full capacity, right, power and authority to execute, deliver and
perform under this Agreement and all documents to be executed pursuant
hereto. Seller has not alienated, encumbered, transferred, leased,
assigned or otherwise conveyed its interest in the Property or any
portion thereof, except as set forth in the Commitment, nor entered
into any agreement to do so, nor shall Seller do so prior to Closing.
There is no consent required from any third party (other than its
lenders) before the Property may be conveyed to Granite.
16.2 The Property. Seller has good, valid and
marketable title to all of the Property. Subject to the Permitted
Exceptions, all of the Property is held, and at the Closing will be
held, free and clear of all title defects and all liens, pledges,
claims, charges, rights of first refusal, security interests or other
encumbrances and is not subject to any rights of way, building or use
restrictions, exceptions, variances, reservations or limitations of any
nature whatsoever. Seller has not received any written notice of any
material violation of any zoning or other law, ordinance or regulation
with respect to any of the Property or the use of the Property.
16.3 No Conflict. The consummation of the terms
of this Agreement shall not result in or constitute a material
violation or breach of any agreement, covenant or obligation to which
Seller is a party or which may bind or affect any of the Property.
16.4 Liabilities. There are no liabilities of
Seller pertaining to the Property (whether liquidated or unliquidated,
absolute, contingent, accrued or otherwise) except those which will be
paid by Seller in full immediately on or before Closing.
16.5 No Claims. There is no material suit, claim
in writing, action or proceeding now pending against Seller involving
the Property, or any part thereof, before any court, administrative or
regulatory body, or any governmental agency and there is no material
suit, claim in writing, action or proceeding threatened against Seller,
or any of the Property. There are no outstanding orders, rulings,
decrees, judgments or stipulations to which Seller is a party or by
which the Property is bound by any court, arbitration or administrative
agency materially and adversely affecting the Property. There are no
mechanic's or materialman's liens or similar claims or liens now
asserted against the Property for work performed or commenced prior to
the date hereof other than as described in the Commitment, and Seller
shall timely satisfy and discharge any and all obligations relating to
work performed on or conducted at or materials delivered to the
Property prior to Closing in order to prevent the filing of any claim
or mechanic's lien with respect thereto.
16.6 Leases. There are no undisclosed leases,
subleases, tenancies or occupancies, or rights to occupancy or
possession, in effect with respect to all or any portion of the
Property.
10
16.7 No Foreign Taxpayers. No non-resident
foreign taxpayers, or domestic corporations owned by non-resident
foreign taxpayers, or any other similar person or entity, will be
entitled to all or any of the proceeds from the sale or exchange of the
Property hereunder such that the withholding requirements set forth in
Sections 1445 and/or 6039C of the Code are or will be applicable to all
or a portion of the Purchase Price to be paid pursuant to this
Agreement.
16.8 No Special Assessments. Except as otherwise
expressly disclosed in the Commitment, the Property is not subject to
any proposed special assessment or any special assessment lien arising
as a result of any works or improvements completed, installed or
contemplated at or before the Closing Date.
16.9 Cooperation of Seller. Seller shall
cooperate with Granite with respect to Granite's examination, testing
and Due Diligence pertaining to the Property and Granite's attempts to
satisfy its Closing contingencies, Due Diligence and conditions as
provided for in this Agreement.
16.10 Transition Assistance. Seller agrees that
Granite, at Granite's expense, may make arrangements with the current
Building Engineer for the Property to provide training and other
assistance as required; provided that the same shall not interfere with
his duties and responsibilities with Seller.
The representations and warranties set forth in this Section
16 shall survive the Closing for a period of six (6) months and, with respect to
any civil action claiming a breach brought within that period, until the
conclusion of such action.
17. GRANITE'S REPRESENTATIONS AND WARRANTIES. In addition
to any other warranties, representations and covenants of Granite contained in
other sections of this Agreement, Granite hereby represents and warrants to
Seller that, as of the date of this Agreement and as of the Closing, the
following facts are and shall be true and correct:
17.1 Organization and Authority. Granite is duly
organized in the State of Utah, in good standing, and has the power and
authority to conduct its business and to execute and enter into this
Agreement and to perform the transactions herein provided and
contemplated. This Agreement has been duly authorized and executed by
Granite, and upon delivery to and execution by Seller, shall be a valid
and binding agreement of Granite.
17.2 No Conflict. The consummation of the terms
of this Agreement shall not result in or constitute a material
violation or breach of any agreement, covenant or obligation to which
Granite is a party.
17.3 No Claims. There is no material suit, claim
in writing, action or proceeding now pending involving Granite before
any court, administrative or regulatory body, or any governmental
agency and there is no material suit, claim in writing, action
11
or proceedings threatened against Granite. There are not outstanding
orders, rulings, decrees, judgments or stipulations to which Granite is
a party or by which any of its material properties is bound by any
court, arbitrator or administrative agency materially adversely
affecting this Agreement.
17.4 Cooperation of Granite. Granite shall
cooperate with Seller with respect to Seller's pursuit of any 1031 tax
free exchange associated with the transaction the subject of this
Agreement.
The representations and warranties set forth in this Section
17 shall survive the Closing for a period of six (6) months and, with respect to
any civil action claiming a breach brought within that period, until the
conclusion of such action.
18. POSSESSION. Seller shall deliver possession of the
Property to Granite at Closing; provided, however, that Seller shall be
permitted to use and occupy the Annex Building and the adjoining parking areas
rent-free, for as long as is practical, in Granite's reasonable discretion, but
in no event for more than a period of two (2) years following the Closing,
pursuant to a written agreement to be entered into by Seller and Granite at
Closing. Granite shall have the right to terminate Seller's occupancy of the
Annex Building. In such event, Seller's right of occupancy shall terminate 60
days from the date Seller receives written notice from Granite of said
termination. In the event such termination occurs sooner than two years
following the Closing, Granite agrees to use reasonable efforts to find suitable
alternate space for occupancy by Seller. All costs, expenses, maintenance and
repairs pertaining to the use and occupancy by Seller of the Annex Building
shall be at Seller's sole cost and expense.
19. RISK OF LOSS. All risk of loss or damage to the
Property shall be borne by Seller until Closing, with any risk of loss after
Closing to be borne by Granite.
20. TERMINATION, REMEDIES AND ENFORCEABILITY.
20.1 Termination. If this Agreement is terminated
pursuant to the provisions herein provided above, then the Deposit,
together with accrued interest thereon, shall be forthwith returned to
Granite by the Escrow Agent, and the parties hereto shall equally share
any cost of establishing and canceling the Escrow created hereby.
Thereupon, neither party shall have any right, title or interest in or
to the Property of the other party or any part thereof, and neither
party shall have any further obligation to the other, except for those
obligations which are expressly made to survive the termination of this
Agreement or as otherwise specifically set forth herein.
20.2 Default by Granite. If Granite materially
defaults hereunder, Seller shall deliver written notice thereof to
Granite and Escrow Agent. If Granite does not cure such default within
ten (10) days after receiving written notice thereof, Seller shall be
entitled to terminate this Agreement and to receive the Deposit as
liquidated damages. In the event the sale of the Property shall not be
consummated because of Granite's material default, then, subject to the
terms of this Agreement, Seller shall be entitled to receive the
Deposit, as liquidated damages.
12
20.3 Default by Seller. If Seller materially
defaults hereunder, Granite shall deliver written notice thereof to
Seller and Escrow Agent. If Seller does not cure such default within
ten (10) days after receiving written notice thereof, Granite shall be
entitled to terminate this Agreement, in which event Granite shall be
entitled to receive on demand the Deposit from Escrow Agent, together
with all accrued interest thereon, and bring an action against Seller
for damages and/or specific performance; provided, however, that in no
event shall Seller's liability for damages exceed an amount equal to
the amount of the Deposit.
21. GENERAL PROVISIONS.
21.1 Time is of the Essence. Time is of the
essence with respect to all aspects of this Agreement and all of the
Exhibits referred to herein.
21.2 Notices. Any and all notices, demands or
other communications required or desired to be given hereunder by any
party shall be in writing and shall be validly given or made to another
party if served either personally (at each of the addresses set forth
below) or if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. If such notice,
demand or other communication be served personally, service shall be
conclusively deemed made at the time of such personal service. If such
notice, demand or other communication be given by mail, such shall be
conclusively deemed given two (2) business days after the deposit
thereof in the United States mail addressed to the party to whom such
notice, demand or other communication is to be given, as hereinafter
set forth:
To Seller: Seller Healthcare Corporation
Attn: General Counsel
Dover Center
113 Seaboard Lane, Suite A200
Franklin, Tennessee 37067
with a copy to: Bass, Berry & Sims PLC
2700 AmSouth Center
315 Deaderick Street
Nashville, Tennessee 37238
Attn: James S. Tate, Jr.
To Granite: Granite School District
Attn: David F. Garrett
Business Administrator
340 East 3545 South
Salt Lake City, Utah 84115
13
with a copy to: Daniel W. Anderson, Esq.
Fabian & Clendenin
215 South State Street
Twelfth Floor
Salt Lake City, Utah 84111
Fax: (801) 532-3370
Any party hereto may change its address for the purpose of receiving notices,
demands and other communications as herein provided by a written notice given in
the manner aforesaid to the other parties hereto.
21.3 Further Assurances. Each of the parties
hereto shall execute and deliver any and all additional papers,
documents, and other assurances, and shall do any and all acts and
things reasonably necessary in connection with the performance of its
obligations hereunder and to carry out the intent of the parties
hereto.
21.4 No Joint Venture. It is not the intent of
Seller or Granite to, and said parties do not, by execution of this
Agreement, become partners, equity participants or joint venturers of
each other.
21.5 Attorneys' Fees. In the event any action is
instituted by a party to enforce any of the terms and provisions
contained herein, the prevailing party in such action shall be entitled
to receive from the other party reasonable attorneys' fees, costs and
expenses incurred in enforcing this Agreement.
21.6 Modification or Amendments. No amendment,
change or modification of this Agreement shall be valid unless in
writing signed by both parties hereto.
21.7 Successors and Assigns. All of the terms and
provisions contained herein shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and
assigns.
21.8 Exhibits. All Exhibits attached hereto and
referred to herein are hereby incorporated herein by this reference as
part of this Agreement.
21.9 Separate Counterparts. This Agreement may be
executed in one or more counterparts, each of which, when so executed,
shall be deemed to be an original and which counterparts shall together
constitute and be one and the same instrument.
21.10 Entire Agreement. This Agreement, together
with the Exhibits attached hereto, constitute the entire understanding
and agreement of the parties with respect to the subject matter hereof.
21.11 Applicable Law. This Agreement shall, in all
respects, be governed by and construed in accordance with the laws of
the State of Utah.
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21.12 Authority of Signators. The persons
executing this Agreement on behalf of Seller and Granite warrant his or
her authority to do so and to bind Seller and Granite, respectively.
21.13 Waiver of Covenants, Conditions or Remedies.
The waiver by one party of the performance of any covenant, condition
or promise, or of the time for performing any act under this Agreement
shall not invalidate this Agreement nor shall it be considered a waiver
by such party of any other covenant, condition or promise, or of the
time for performing any other act required under this Agreement. The
exercise of any remedy provided in this Agreement shall not be a waiver
of any other remedy provided by law, and the provisions of this
Agreement for any remedy shall not exclude any other remedies unless
they are expressly excluded.
21.14 No Assignment. Except for Granite's right to
assign its interest in this Agreement in whole or in part to a
Municipal Building Authority, the parties hereto may not assign their
respective rights or delegate their respective obligations hereunder
without the prior written consent of the other, which consent shall not
be unreasonably withheld or delayed. In any event, this Agreement shall
be binding upon and shall inure to the benefit of the successors and
permitted assigns of the parties to this Agreement.
21.15 Time Computation. Unless otherwise provided
herein, in computing a period of days for performance or payment as
provided hereunder, the first day shall be excluded and the last day
shall be included. If the last day of any such period is Saturday,
Sunday or legal holiday, the period shall extend to include the next
day which is not a Saturday, Sunday, or legal holiday. Any performance
or payment which may be taken or made under this Agreement must, unless
otherwise indicated herein, be taken or made prior to midnight (Utah
time) on the last day of the applicable period provided specified. All
references to time shall be to local Utah time. If a date for
performance or payment falls on a legal holiday or weekend, the time
for performance or payment shall be extended to the next business day,
and if performance or payment has occurred on such weekend or holiday,
it shall be deemed to have occurred on the next business day.
21.16 Facsimile Documents. Except in the case of
documents which are to be recorded, facsimile transmission of any
signed original document, and retransmission of any signed facsimile
transmission, shall be the same as delivery of an original.
21.17 Captions. Captions are used herein for
reference only and shall in no way be deemed to define, limit, explain
or modify any provision hereof.
21.18 Construction. All parties to this Agreement
and their counsel have reviewed and have had the opportunity to revise
this Agreement, and the normal rule of construction to the effect that
any ambiguities in this Agreement are to be resolved against the
drafting party shall not be employed in the interpretation of this
Agreement.
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21.19 Partial Invalidity. Wherever possible, each
provision hereof shall be interpreted in such manner as to be effective
and valid under applicable law, but in case any one or more of the
provisions contained herein shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Agreement and this Agreement shall be construed and enforced as if
such invalid, illegal or unenforceable provision or provisions had
never been contained herein unless the deletion of such provision or
provisions would result in such a material change as to cause
completion of the transactions contemplated hereby to be unreasonable.
21.20 Confidentiality. Except as otherwise
required by law, the parties agree to keep the existence and terms of
this Agreement confidential, other than any disclosure deemed
reasonably necessary to attorneys, accountants, other professional
consultants or to their respective shareholders, officers, and boards
of directors.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ROCKY MOUNTAIN MEDICAL CENTER, INC.,
a Delaware corporation
By /s/ W. Carl Whitmer
---------------------------------
Name W. Carl Whitmer
Its Vice President
GRANITE SCHOOL DISTRICT, a body
corporate of the State of Utah
By /s/ Sarah R. Meier
---------------------------------
Name Sarah R. Meier
Its President
16
STATE OF Tennessee )
: ss.
COUNTY OF Willamson )
On the 15 day of December, 2003, personally appeared before me W.
Carl Whitner, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is signed on the preceding
document, and acknowledged to me that he/she is the Vice President of Seller
Rocky Mountain Medical Center, Inc., a Delaware corporation, and that said
corporation signed it voluntarily for its stated purpose.
[ILLEGIBLE]
-----------------------------
NOTARY PUBLIC March 14, 2005
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On this 15th day of December, 2003, personally appeared before me
Sarah R. Meier , personally known to me or proved to me on the basis of
satisfactory evidence, and who, being by me duly sworn, did say that he/she is
President of the Board of Education of Granite School District, a body corporate
of the State of Utah, and that said document was signed by him/her in behalf of
said Board, and said Sarah R. Meier acknowledged to me that said Board executed
the same.
[SEAL]
Karen K. Westover
-----------------------
NOTARY PUBLIC
17
EXHIBIT A
BOUNDARY DESCRIPTION/LEGAL DESCRIPTION:
TOGETHER WITH A TEMPORARY EASEMENT AS DEFINED AND DESCRIBED IN THAT CERTAIN
AGREEMENT FOR EASEMENT, DATED NOVEMBER 27, 1990 AND RECORDED NOVEMBER 30, 1990
AS ENTRY NO. 4995245 IN BOOK 6272 AT PAGE 606, SALT LAKE COUNTY RECORDER'S
OFFICE, THE LAND AFFECTED BY THE SAID AGREEMENT IS DESCRIBED AS FOLLOWS:
A PORTION OF LOT 1, BLOCK 1, BURTON PLACE, ACCORDING TO THE OFFICIAL PLAT
THEREOF ON FILE AND OF RECORD IN THE SALT LAKE COUNTY RECORDER'S OFFICE, MORE
PARTICULARLY DESCRIBED AS FOLLOWS: A STRIP OF LAND 4 1/2 FEET WIDE RUNNING
EAST-WEST ALONG AND IMMEDIATELY NORTH OF THE NORTHERN BORDER OF THE EAST 104.00
FEET OF THE HEREIN DESCRIBED PARCEL 1.
1. PARCEL 1
BEGINNING AT A POINT ON THE WEST LINE OF STATE STREET, SAID POINT ALSO BEING THE
NORTHEAST CORNER OF LOT 6, BLOCK 1, OAKLAND PLACE SUDIVISION, SAID POINT ALSO
BEING NORTH 00 degrees 05'00" EAST 1,756.83 FEET AND SOUTH 89 degrees 55'50"
WEST 66.00 FEET FROM THE FOUND COUNTY MONUMENT AT THE INTERSECTION OF STATE
STREET AND 2700 SOUTH STREET, CITY OF SOUTH SALT LAKE, UTAH AND RUNNING THENCE
SOUTH 00 degrees 05'00" WEST 54.00 FEET ALONG SAID WEST LINE; THENCE SOUTH 89
degrees 55'50" WEST 172.50 FEET TO THE CENTER OF A VACATED ALLEY; THENCE SOUTH
00 degrees 05'00" WEST 111.00 FEET ALONG THE CENTER LINE OF SAID VACATED ALLEY
TO THE NORTH LINE OF THE VACATED OAKLAND AVENUE; THENCE NORTH 89 degrees 55'50"
EAST 172.50 FEET ALONG THE NORTH LINE OF SAID VACATED OAKLAND AVENUE TO THE WEST
LINE OF STATE STREET, SAID POINT ALSO BEING THE SOUTHEAST CORNER OF LOT 1, BLOCK
1, OAKLAND PLACE SUBDIVISION; THENCE SOUTH 00 degrees 05'00" WEST 983.86 FEET
ALONG THE WEST LINE OF SAID STATE STREET TO THE CENTER LINE OF VACATED CRYSTAL
AVENUE; THENCE SOUTH 89 degrees 57'56" WEST 146.00 FEET ALONG THE CENTER LINE OF
SAID CRYSTAL AVENUE; THENCE SOUTH 00 degrees 05'00" WEST 258.82 FEET ALONG THE
EAST LINE OF LOTS 1 AND 106 , OF BLOCK 2, SOUTHGATE PARK, PLAT "A", AND
EXTENDED; THENCE NORTH 89 degrees 59'35" EAST 146.00 FEET TO THE WEST LINE OF
SAID STATE STREET; THENCE SOUTH 00 degrees 05'00" WEST 10.00 FEET ALONG THE WEST
LINE OF STATE STREET TO THE SOUTHEAST CORNER OF LOT 111, OF SAID BLOCK 2,
SOUTHGATE PARK, PLAT "A"; THENCE SOUTH 89 degrees 59'35" WEST 346.00 FEET ALONG
THE SOUTH LINE OF LOTS 1 THROUGH 8 INCLUSIVE AND 111, OF SAID BLOCK 2, SOUTHGATE
PARK, PLAT "A" TO THE SOUTHWEST CORNER OF LOT 8 THEREOF; THENCE NORTH 00 degrees
05'00" EAST 120.00 FEET TO THE NORTHWEST CORNER OF LOT 8, THENCE SOUTH 89
degrees 59'35" WEST
1
250.00 FEET ALONG THE NORTH LINE OF LOTS 9 THROUGH 18 OF SAID BLOCK 2, SOUTHGATE
PARK, PLAT "A" TO THE NORTHWEST CORNER OF LOT 18 THEREOF; THENCE SOUTH 00
degrees 05'00" WEST 120.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT 18; THENCE
SOUTH 89 degrees 59'35" WEST 90.47 FEET TO THE EAST LINE OF MAIN STREET; THENCE
NORTH 00 degrees 02'52" EAST 1,452.00 FEET ALONG THE EAST LINE OF MAIN STREET TO
A POINT WHICH IS 35.00 FEET NORTH OF SOUTH LINE OF LOT 23, OF BLOCK 1, BURTON
PLACE; THENCE NORTH 89 degrees 55'50" EAST 81.42 FEET TO A POINT ON THE WEST
LINE OF LOT 20, OF SAID BLOCK 1, BURTON PLACE; THENCE NORTH 00 degrees 02'52"
EAST 75.60 FEET ALONG THE WEST LINE OF SAID LOT 20 TO THE NORTHWEST CORNER
THEREOF; THENCE NORTH 89 degrees 55'50" EAST 275.00 FEET ALONG THE NORTH LINE OF
LOTS 10 THROUGH 20 INCLUSIVE, OF SAID BLOCK 1, BURTON PLACE TO THE NORTHEAST
CORNER OF SAID LOT 10; THENCE SOUTH 00 degrees 05'00" WEST 110.60 FEET TO THE
SOUTHEAST CORNER OF SAID LOT 10; THENCE NORTH 89 degrees 55'50" EAST 1.00 FEET
TO THE NORTHWEST CORNER OF LOT 12, OAKLAND PALCE SUBDIVISION; THENCE SOUTH 00
degrees 05'00" WEST 1.50 FEET THENCE NORTH 89 degrees 55'50" EAST 91.00 FEET;
THENCE NORTH 00 degrees 05'00" EAST 1.50 FEET; THENCE NORTH 89 degrees 55'50"
EAST ALONG THE SOUTH LINE OF LOTS 6 THROUGH 1, BLOCK 1, OF SAID BURTON PLACE
239.00 FEET TO THE POINT OF BEGINNING.
2. PARCEL 2
ALL OF LOTS 1 THROUGH 8, INCLUSIVE, ALL OF LOTS 13 THROUGH 21, INCLUSIVE , THE
EAST 15 FEET OF LOT 22, ALL OF LOTS 89 THROUGH 96, INCLUSIVE, ALL OF LOTS 101
THROUGH 106, INCLUSIVE, AND ALL OF LOT 108, IN BLOCK 1, SOUTHGATE PARK, PLAT
"A", ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE AND OF RECORD IN SALT LAKE
COUNTY RECORDER'S OFFICE.
2
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is entered into as of
this 15th day of December, 2003, by and among ROCKY MOUNTAIN MEDICAL CENTER,
INC., a Delaware corporation ("Rocky Mountain"), and BOARD OF EDUCATION OF
GRANITE SCHOOL DISTRICT, a body corporate of the State of Utah ("Granite") and
MERRILL TITLE COMPANY, whose address is 6965 Union Park Center, Suite 200,
Midvale, Utah 84047 (the "Escrow Agent"), and is made with respect to the
following:
RECITALS:
WHEREAS, Rocky Mountain is the owner of certain property
located at approximately 2500 South State Street in Salt Lake City, Salt Lake
County, Utah consisting of approximately 23.50 acres, more particularly
described in Exhibit "A" hereto (the "Property"); and
WHEREAS, Rocky Mountain and Granite entered into a Purchase
and Sale Agreement with an effective date of December 15, 2003, (the "Purchase
Agreement"; capitalized terms used but not otherwise defined herein shall have
the same meaning as in the Purchase Agreement), under which Rocky Mountain
agreed subject to and upon the terms and conditions of the Purchase Agreement to
sell the Property to Granite and Granite agreed to purchase the Property from
Rocky Mountain; and
WHEREAS, pursuant to the Purchase Agreement, Granite is
depositing herewith into escrow with Escrow Agent the principal sum of $125,000
as the Initial Deposit; and
WHEREAS, Escrow Agent has agreed to hold the Deposit, together
with all accrued interest thereon, and disburse the same according to the terms
hereof and the Purchase Agreement;.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and pursuant to the
terms of the Purchase Agreement, the parties hereto agree as follows:
1. RECITALS. The recitals set forth hereinabove are
accurate and incorporated herein by this reference as if fully set forth.
2. DEPOSIT INTO ESCROW. Concurrently herewith, Escrow
Agent has received: (a) an executed copy of the Purchase Agreement; and (b) One
Hundred Twenty-Five Thousand and no/100 Dollars ($125,000.00) delivered to
Escrow Agent from Granite by wire transfer or certified funds, being the Initial
Deposit.
1
3. ESCROW ACCOUNT. Upon the execution of this Agreement,
subject to the provisions and requirements of the Purchase Agreement, Escrow
Agent shall establish an interest- bearing escrow account for the Deposit for
the benefit of Rocky Mountain and Granite (the "Escrow Account") that is fully
federally insured and deposit into the Escrow Account the Initial Deposit, with
all interest accrued thereunder, to be reported under the federal tax
identification number of the party which ultimately receives the Initial
Deposit. The tax identification number for Granite is 87-6000494 and the tax
identification number for Rocky Mountain is 62-1795213.
4. ADDITIONAL ESCROW DEPOSITS. In addition to the
Initial Deposit, pursuant to the terms of the Purchase Agreement, unless Granite
has terminated the Purchase Agreement on or before the Due Diligence Deadline
pursuant to the terms of the Purchase Agreement, Granite shall deposit an
additional One Hundred Twenty-Five Hundred Thousand Dollars ($125,000.00) into
escrow with Escrow Agent, by wire transfer or in certified funds (the
"Additional Deposit") within ten (10) days after the Due Diligence Deadline (the
Initial Deposit and the Additional Deposit, if any, including all interest
accrued thereon, being hereafter collectively referred to as the "Deposit").
5. DISBURSEMENT OF DEPOSIT. Escrow Agent shall disburse
the Deposit as follows:
(a) In the event Rocky Mountain and Granite hereafter
execute a written agreement or joint letter to Escrow Agent directing
how the Deposit shall be disbursed, Escrow Agent shall disburse that
portion of the Deposit according to the same; or
(b) In the event the transaction contemplated by
the Purchase Agreement closes, the entire Deposit shall be disbursed to
Rocky Mountain and applied to the Purchase Price for the Property; or
(c) In the event the Purchase Agreement is
timely terminated by Granite pursuant to a right to do so expressly
provided in the Purchase Agreement and Granite is not in breach
thereof, the entire Deposit shall be disbursed to Granite, less any
escrow fees owed by Granite under the Purchase Agreement; or
(d) In the event of a breach by Granite of the
Purchase Agreement, the Deposit shall be disbursed to Rocky Mountain,
less any escrow fees owed by Rocky Mountain under the Purchase
Agreement; or
(e) In the event of a breach by Rocky Mountain
of the Purchase Agreement that results in the failure of the
transaction to close, if Granite is not in breach under the Purchase
Agreement, the Deposit shall be returned to Granite.
6. CLOSING AND TITLE INSURANCE. Absent termination of
this Agreement and return of the Deposit to the party entitled thereto pursuant
to the terms of the Purchase Agreement, Escrow Agent agrees to assist with the
Closing as requested by Rocky Mountain or
2
Granite and to provide any title work or insurance pertaining thereto, including
the Title Policy, as defined in the Purchase Agreement.
7. FEES. The Escrow Agent agrees that any fee for the
services performed by it under this Agreement shall be paid for one-half by
Granite and one-half by Rocky Mountain at the Closing.
8. DEFINED TERMS. The terms not otherwise defined in
this Agreement shall have the definition and meaning given to them in the
Purchase Agreement.
9. ESCROW AGENT.
(a) Escrow Agent shall hold possession of and
solely keep the Deposit and all of the items delivered to Escrow Agent
hereunder subject to the terms and conditions of this Agreement, and
shall deliver and dispose of the same according to the terms and
conditions hereof and the Purchase Agreement, and shall deal with the
parties hereto fairly and impartially according to the intent of the
parties as herein expressed, provided however that Escrow Agent is to
be considered as a depository only, shall not be deemed to be a party
to any document other than this Agreement, and shall not be responsible
or liable in any manner whatsoever for the sufficiency, manner of
execution, or validity of any written instructions, certificates or any
of the escrow items received by it, nor as to the identity, authority
or rights of any persons executing the same. Escrow Agent shall be
entitled to rely at all times on instructions given by or on behalf of
Granite and Rocky Mountain, through their authorized representatives,
as the case may be and as required hereunder, without any necessity of
verifying the authority therefor.
(b) Escrow Agent shall not at any time be held
liable for actions taken or omitted to be taken in good faith and
without negligence.
(c) In taking or omitting to take any action
whatsoever hereunder, Escrow Agent shall be protected in relying upon
any notice, paper, or other document believed by it to be genuine, or
upon evidence deemed by it to be sufficient, and in no event shall
Escrow Agent be liable hereunder for any act performed or omitted to be
performed by it hereunder in the absence of negligence, bad faith, or
intentional misconduct. Escrow Agent may, at its expense, consult with
counsel in connection with its duties hereunder and shall be fully
protected in any act taken, suffered or permitted by it in good faith
and without negligence in accordance with the advice of such counsel.
10. TERM OF AGREEMENT. The term of this Agreement shall
be from and after the date of this Agreement as hereinafter set forth to and
including the earlier of completion of the requirements and the events set forth
herein or the termination hereof by written agreement of all of the parties
hereto.
11. SEVERABLE PROVISIONS. The provisions of this
Agreement are severable and if any one or more provisions may be determined to
be illegal or otherwise unenforceable, in whole or in part, the remaining
provisions and any partially unenforceable provisions to the
3
extent enforceable, shall nevertheless be binding and enforceable.
12. GOVERNING LAW. This Agreement is intended to be and
shall be governed in all respects by the laws of the State of Utah applicable to
contracts made and to be performed wholly within that state.
13. ENTIRE AGREEMENT. Other than the Purchase Agreement
between Rocky Mountain and Granite and the exhibits and closing documents
pertaining thereto, this Agreement contains the entire agreement of the parties
relating to the subject matter hereof, and the parties hereto have made no
agreements, representations, or warranties relating to the subject matter of
this Agreement that are not set forth herein or therein. No modification of this
Agreement shall be valid unless made in writing and signed by all of the parties
hereto.
14. CONSTRUCTION. This Agreement shall not be construed
against the party preparing it, and shall be construed without regard to the
identity of the person who drafted it or the party who caused it to be drafted
and shall be construed as if all parties had jointly prepared this Agreement and
it shall be deemed their joint work product, and each and every provision of
this Agreement shall be construed as though all of the parties hereto
participated equally in the drafting hereof; and any uncertainty or ambiguity
shall not be interpreted against any one party. As a result of the foregoing,
any rule of construction that a document is to be construed against the drafting
party shall not be applicable.
15. NOTICE. Any and all notices, demands or other
communications required or desired to be given hereunder by any party shall be
in writing and shall be validly given or made to another party if either
personally delivered (at each of the addresses set forth below) or if sent by
certified or registered mail, postage prepaid, return receipt requested:
If to Rocky Mountain: Rocky Mountain Medical Center, Inc.
c/o IASIS Healthcare Corporation
Attn: General Counsel
Dover Center
113 Seaboard Lane, Suite A200
Franklin,TN 37067
with a copy to: Bass, Berry & Sims PLC
2700 AmSouth Center
315 Deaderick Street
Nashville, TN 37238
Attn: James S. Tate, Jr.
If to Granite: Granite School District
Attn: David F. Garrett
Business Administrator
340 East 3545 South
Salt Lake City, UT 84115
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with a copy to: Daniel W. Anderson, Esq.
FABIAN & CLENDENIN
215 South State Street, Suite 1200
Salt Lake City, Utah 84111
Telephone: (801) 323-2223
Facsimile: (801) 532-3370
If to Escrow Agent Merrill Title Company
6965 Union Park Center
Suite 200
Midvale, UT 84047
Attn: MARTIN W. MERRILL
Notice shall be deemed given on receipt. Any party may change its address for
purposes of this Paragraph 15 by giving the other parties written notice of the
new address in the manner set forth above.
16. ESCROW DISCLAIMERS.
(a) The parties shall promptly comply with the
terms of this Agreement and shall execute and deliver to the Escrow
Agent, on demand, all papers, documents, instruments, releases and
monies required of them to consummate this transaction.
(b) The Escrow Agent's duties hereunder shall be
limited to the safekeeping of such money, instruments or other
documents received by the Escrow Agent, and to the disposition of the
same in accordance with the written instruments delivered in this
escrow.
(c) Should any dispute arise between or among
the parties, or should conflicting demands or notices be served upon
the Escrow Agent by the parties or any third parties, the Escrow Agent
may, at its sole option, but without limiting its other rights, do any
or all of the following: (i) stop all proceedings in the performance of
this escrow and withhold the delivery of any documents or funds in its
possession until said conflicts are resolved and proof thereof,
satisfactory to the Escrow Agent, is deposited in escrow; (ii) deliver
the escrow file and all related documents related to the Escrow Agent's
attorney with instructions to attempt to resolve the dispute or
conflict and to pay to said attorney forthwith, out of any funds on
deposit in escrow, his costs and reasonable fees; or (iii) file a suit
in interpleader or for declaratory judgment or for other relief. If
such suit be reasonably brought, the Escrow Agent shall be released and
discharged from any liability and obligation to further perform any
duties in connection with this escrow other than as herein provided.
(d) Where the context of this Agreement
requires, the masculine gender shall include the feminine and neuter
genders, the singular shall include the plural and the words person or
party shall include all entities recognized under the laws of the
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State of Utah. This Agreement may be executed in any number of
counterparts, each of which shall be construed as and be effective as
an original.
(e) This Agreement shall inure to the benefit of
and be binding upon the successors and assigns, of the parties hereto
who agree that time is of the essence for these and all additional or
changed instructions.
(f) The foregoing terms, conditions, provisions
and instructions have been read and are understood and agreed to by
each of the parties hereto, each of whom acknowledge receipt of a copy
thereof.
WHEREAS, the parties hereto have executed this Escrow
Agreement on the date first above stated.
ROCKY MOUNTAIN MEDICAL CENTER, INC.,
a Delaware corporation
By /s/ W. Carl Whitmer
---------------------------------
Name: W. Carl Whitmer
Its: Vice President
BOARD OF EDUCATION OF GRANITE
SCHOOL DISTRICT, a body corporate
of the State of Utah
By /s/ Sarah R. Meier
---------------------------------
Name: Sarah R. Meier
Its: President
ACCEPTED BY ESCROW AGENT this 15th
day of December, 2003
MERRILL TITLE COMPANY,
a Utah corporation
By /s/ Martin W. Merrill
---------------------------------
Name: Martin W. Merrill
Its: President
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EXHIBIT A
TO ESCROW AGREEMENT
BOUNDARY DESCRIPTION/LEGAL DESCRIPTION:
TOGETHER WITH A TEMPORARY EASEMENT AS DEFINED AND DESCRIBED IN THAT CERTAIN
AGREEMENT FOR EASEMENT, DATED NOVEMBER 27, 1990 AND RECORDED NOVEMBER 30, 1990
AS ENTRY NO. 4995245 IN BOOK 6272 AT PAGE 606, SALT LAKE COUNTY RECORDER'S
OFFICE, THE LAND AFFECTED BY THE SAID AGREEMENT IS DESCRIBED AS FOLLOWS:
A PORTION OF LOT 1, BLOCK 1, BURTON PLACE, ACCORDING TO THE OFFICIAL PLAT
THEREOF ON FILE AND OF RECORD IN THE SALT LAKE COUNTY RECORDER'S OFFICE, MORE
PARTICULARLY DESCRIBED AS FOLLOWS: A STRIP OF LAND 4 1/2 FEET WIDE RUNNING
EAST-WEST ALONG AND IMMEDIATELY NORTH OF THE NORTHERN BORDER OF THE EAST 104.00
FEET OF THE HEREIN DESCRIBED PARCEL 1.
_ PARCEL 1
BEGINNING AT A POINT ON THE WEST LINE OF STATE STREET, SAID POINT ALSO BEING THE
NORTHEAST CORNER OF LOT 6, BLOCK 1, OAKLAND PLACE SUDIVISION, SAID POINT ALSO
BEING NORTH 00 degrees 05'00" EAST 1,756.83 FEET AND SOUTH 89 degrees 55'50"
WEST 66.00 FEET FROM THE FOUND COUNTY MONUMENT AT THE INTERSECTION OF STATE
STREET AND 2700 SOUTH STREET, CITY OF SOUTH SALT LAKE, UTAH AND RUNNING THENCE
SOUTH 00 degrees 05'00" WEST 54.00 FEET ALONG SAID WEST LINE; THENCE SOUTH 89
degrees 55'50" WEST 172.50 FEET TO THE CENTER OF A VACATED ALLEY; THENCE SOUTH
00 degrees 05'00" WEST 111.00 FEET ALONG THE CENTER LINE OF SAID VACATED ALLEY
TO THE NORTH LINE OF THE VACATED OAKLAND AVENUE; THENCE NORTH 89 degrees 55'50"
EAST 172.50 FEET ALONG THE NORTH LINE OF SAID VACATED OAKLAND AVENUE TO THE WEST
LINE OF STATE STREET, SAID POINT ALSO BEING THE SOUTHEAST CORNER OF LOT 1, BLOCK
1, OAKLAND PLACE SUBDIVISION; THENCE SOUTH 00 degrees 05'00" WEST 983.86 FEET
ALONG THE WEST LINE OF SAID STATE STREET TO THE CENTER LINE OF VACATED CRYSTAL
AVENUE; THENCE SOUTH 89 degrees 57'56" WEST 146.00 FEET ALONG THE CENTER LINE OF
SAID CRYSTAL AVENUE; THENCE SOUTH 00 degrees 05'00" WEST 258.82 FEET ALONG THE
EAST LINE OF LOTS 1 AND 106 , OF BLOCK 2, SOUTHGATE PARK, PLAT "A", AND
EXTENDED; THENCE NORTH 89 degrees 59'35" EAST 146.00 FEET TO THE WEST LINE OF
SAID STATE STREET; THENCE SOUTH 00 degrees 05'00" WEST 10.00 FEET ALONG THE WEST
LINE OF STATE STREET TO THE SOUTHEAST CORNER OF LOT 111, OF SAID BLOCK 2,
SOUTHGATE PARK, PLAT "A"; THENCE SOUTH 89 degrees 59'35" WEST 346.00 FEET ALONG
THE SOUTH LINE OF LOTS 1 THROUGH 8 INCLUSIVE AND 111, OF SAID BLOCK 2, SOUTHGATE
PARK, PLAT "A" TO THE SOUTHWEST CORNER OF LOT 8 THEREOF; THENCE NORTH 00 degrees
05'00" EAST 120.00 FEET TO THE NORTHWEST CORNER OF LOT 8, THENCE SOUTH 89
degrees 59'35" WEST
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250.00 FEET ALONG THE NORTH LINE OF LOTS 9 THROUGH 18 OF SAID BLOCK 2, SOUTHGATE
PARK, PLAT "A" TO THE NORTHWEST CORNER OF LOT 18 THEREOF; THENCE SOUTH 00
degrees 05'00" WEST 120.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT 18; THENCE
SOUTH 89 degrees 59'35" WEST 90.47 FEET TO THE EAST LINE OF MAIN STREET; THENCE
NORTH 00 degrees 02'52" EAST 1,452.00 FEET ALONG THE EAST LINE OF MAIN STREET TO
A POINT WHICH IS 35.00 FEET NORTH OF SOUTH LINE OF LOT 23, OF BLOCK 1, BURTON
PLACE; THENCE NORTH 89 degrees 55'50" EAST 81.42 FEET TO A POINT ON THE WEST
LINE OF LOT 20, OF SAID BLOCK 1, BURTON PLACE; THENCE NORTH 00 degrees 02'52"
EAST 75.60 FEET ALONG THE WEST LINE OF SAID LOT 20 TO THE NORTHWEST CORNER
THEREOF; THENCE NORTH 89 degrees 55'50" EAST 275.00 FEET ALONG THE NORTH LINE OF
LOTS 10 THROUGH 20 INCLUSIVE, OF SAID BLOCK 1, BURTON PLACE TO THE NORTHEAST
CORNER OF SAID LOT 10; THENCE SOUTH 00 degrees 05'00" WEST 110.60 FEET TO THE
SOUTHEAST CORNER OF SAID LOT 10; THENCE NORTH 89 degrees 55'50" EAST 1.00 FEET
TO THE NORTHWEST CORNER OF LOT 12, OAKLAND PALCE SUBDIVISION; THENCE SOUTH 00
degrees 05'00" WEST 1.50 FEET THENCE NORTH 89 degrees 55'50" EAST 91.00 FEET;
THENCE NORTH 00 degrees 05'00" EAST 1.50 FEET; THENCE NORTH 89 degrees 55'50"
EAST ALONG THE SOUTH LINE OF LOTS 6 THROUGH 1, BLOCK 1, OF SAID BURTON PLACE
239.00 FEET TO THE POINT OF BEGINNING.
_ PARCEL 2
ALL OF LOTS 1 THROUGH 8, INCLUSIVE, ALL OF LOTS 13 THROUGH 21, INCLUSIVE , THE
EAST 15 FEET OF LOT 22, ALL OF LOTS 89 THROUGH 96, INCLUSIVE, ALL OF LOTS 101
THROUGH 106, INCLUSIVE, AND ALL OF LOT 108, IN BLOCK 1, SOUTHGATE PARK, PLAT
"A", ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE AND OF RECORD IN SALT LAKE
COUNTY RECORDER'S OFFICE.
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EXHIBITS C-H
The form and content of Exhibits C through H, inclusive, shall be agreed upon by
the parties, in the discretion of each, on or before the Due Diligence Deadline.
If the parties fail to agree on the form and content of any of those documents
on or before the Due Diligence Deadline, then this Agreement may be terminated
by either party and (1) the parties thereafter shall have no further obligation
to each other hereunder (except as provided in Section 10.2 of this Agreement)
and (2) the Escrow Agent shall return the deposit to Granite.
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