AGREEMENT FOR THE SALE OF COMMERCIAL REAL ESTATE
This AGREEMENT FOR THE SALE OF COMMERCIAL REAL ESTATE ("Agreement") is made and
entered this 11th day of December, 2000, by and between HEALTHAXIS INC.
(formerly Provident American Corporation), a Pennsylvania corporation with
offices at 0000 XxXxxx Xxxx, Xxxx Xxxxxxxx, XX 00000 ("Seller") and
XXXXXXXXXX.XXX, INC., a Pennsylvania corporation with offices at 0000 X.
X'Xxxxxx Xxxx., Xxxxxx, XX 00000 ("Buyer").
WHEREAS, Seller wishes to sell and Buyer wishes to purchase the Property as
hereinafter defined including buildings, improvements and appurtenances therein.
NOW, THEREFORE, for and in consideration of the promises, representations,
warranties and covenants herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, the parties agree as follows:
1. PROPERTY. Seller hereby agrees to sell and convey to Buyer, who hereby
agrees to purchase All that certain lot or parcel of land, with the
buildings, contents and improvements thereon erected, Situate in the
Township of East Norriton, County of Xxxxxxxxxx and Commonwealth of
Pennsylvania, bounded and described according to a Subdivision Plan of
Village East, made by Xxxxxxxx Associates, Consulting Engineers and
Surveyors, dated January 30, 1978, last revised November 29, 1978 as
recorded in the Office of the Recorder of Deeds of Xxxxxxxxxx County in
Plan Book A-34, and as further described according to a survey of the
Property made by Xxxxxxxx Associates, Consulting Engineers and Surveyors,
dated December 4, 2000 (the "Property"), as follows, to wit:--
2. TERMS. The Property will be sold according to the following terms:
(a) Purchase Price. Seller acknowledges and agrees to accept as full and
fair consideration the Purchase Price of Four Million Two Hundred and
Fifty Thousand Dollars ($ 4,250,000.00) to be paid to the Seller by
the Buyer by wire transfer of immediately available funds to an
account designated by Seller not less than 48 hours prior to the
Closing Date as hereinafter defined.
(b) Deed. The Property shall be conveyed from Seller to Buyer by fee
simple deed of special warranty.
(c) Transfer Taxes. Transfer Taxes of two percent (2%) of the Purchase
Price shall be divided equally between Seller and Buyer.
(d) Prorations. At Closing the following will be adjusted pro-rata on a
daily basis between Buyer and Seller, reimbursing where applicable:
taxes, rents, water and/or sewer fees together with any lienable
municipal service. Seller will pay up to and including the date of
settlement; Buyer will pay for all days following settlement.
1
3. CLOSING. Provided that Seller's covenants, representations and warranties
set forth herein are true and correct as of the Closing Date (as defined
below) and all inspections, tests, surveys and studies, are acceptable to
Buyer, the closing of the assignment, transfer and conveyance of the
Property (the "Closing"), shall occur no later than December 15, 2000 (the
"Closing Date") at the offices of HealthAxis Inc., 0000 XxXxxx Xxxx, Xxxx
Xxxxxxxx, XX 00000.
4. POSSESSION. Possession is to be delivered by deed, keys and assignment of
existing lease(s), together with any security deposits.
5. LEASES. Seller will not enter into any new leases, written extensions of
existing leases, or additional leases for the Property without the express
written consent of Buyer.
6. INSPECTION. Buyer reserves the right to make a pre-settlement inspection of
the subject property.
7. FIXTURES & PERSONAL PROPERTY. Included in this sale and the Purchase Price
are all existing items permanently installed in the property, free of
liens, including plumbing, heating, lighting fixtures, water treatment
systems, any remaining heating fuels stored on the Property at the time of
settlement and built-in air conditioners; as well as all office and home
furniture, fixtures, partitions, computer and ancillary technology
equipment (printers, faxes, scanners, copiers, etc.), audio-visual
equipment, and office supplies.
8. NOTICES & ASSESSMENTS
(a) Seller represents, as of the acceptance date of this Agreement, that
no public improvement assessments have been made against the premises
which remain unpaid and that no notice by any government or public
authority has been served upon the Seller or anyone on the Seller's
behalf, including notices relating to violations of zoning, building,
safety, or fire ordinances which remain uncorrected unless otherwise
specified herein.
(b) Any notice of improvements or assessments received on or before the
date of Seller's acceptance of this Agreement unless improvements
consist of sewer or water lines not in use, will be the responsibility
of the Seller; any notices received thereafter will be the
responsibility of the Buyer.
(c) If required by law, Seller will deliver to Buyer, on or before
settlement, a certification from the appropriate municipal department
or departments disclosing notice of any uncorrected violation of
zoning, building, safety or fire ordinances.
2
9. TITLE, SURVEYS & COSTS
(a) The Property is to be conveyed free and clear of all liens,
encumbrances, and easements, EXCEPTING, HOWEVER, the following:
existing deed restrictions, historic preservation restrictions or
ordinances, building, restrictions, ordinances, easements of roads,
easements visible upon the ground, easements of record, privileges or
rights of public service companies, if any; otherwise the title to the
above described real estate will be good and marketable and such as
will be insured by a reputable Title Insurance Company at the regular
rates.
(b) In the event Seller is unable to give a good and marketable title and
such as will be insured by a reputable Title Company at the regular
rates, as specified in paragraph 9(a). Buyer will have the option of
taking such title as Seller can give without changing the price or of
being repaid all monies paid by Buyer to Seller on account of purchase
price and Seller will reimburse Buyer for any costs incurred by Buyer
for those items specified in paragraph 9(c) and in paragraph 9(d)
items (1), (2), (3); and in the latter event there will be no further
liability or obligation on either of the parties hereto and this
Agreement will become VOID.
(c) Any survey or surveys which may be required by the Title Insurance
Company or the abstracting attorney, for the preparation of an
adequate legal description of the Property (or the correction
thereof), will be secured and paid for by Seller. However, any survey
or surveys desired by Buyer will be secured and paid for by Buyer.
(d) Buyer will pay for the following: (1) The premium for mechanics lien
insurance and/or title search, or fee for cancellation of same, if
any: (2) The premiums for flood insurance and/or fire insurance with
extended coverage, insurance binder charges or cancellation fee, if
any: (3) Buyer's customary settlement costs and accruals.
10. RECORDING. This Agreement will not be recorded in the Office of the
Recorder of Deeds or in any other office or place of public record. If
Buyer causes or permits this Agreement to be recorded, Seller may elect to
treat such act as a breach of this Agreement.
11. ASSIGNMENT. This Agreement will be binding upon the parties, their
respective heirs, personal representatives, guardians and successors and,
to the extent assignable, on the assigns of the parties hereto. It is
expressly understood, however, that the Buyer will not transfer or assign
this Agreement without the written consent of the Seller.
12. MAINTENANCE & RISK OF LOSS.
(a) Seller will maintain the Property, and any personal property specified
herein in its present condition, normal wear and tear excepted.
3
(b) Seller will promptly notify the Buyer if, at any time prior to the
time of settlement, all or any portion of the Property is condemned,
destroyed, or damaged as a result of any cause whatsoever.
(c) Seller will bear risk of loss from fire or other causes until time of
settlement. In the event that damage to any property included in this
sale is not repaired or replaced prior to settlement, Buyer will have
the option of rescinding this Agreement and receiving the return of
all deposit monies, if any, or accepting the Property in its then
condition together with the proceeds of any insurance recovery
obtained by Seller or if Seller's claim is pending at the time of
Closing, an assignment of each of such claims of Seller. Buyer is
hereby notified that it may insure its equitable interest in the
Property as of the time this Agreement is accepted.
13. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
Seller hereby represents, warrants and covenants to Buyer as follows:
13.1 Authority. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania and
has full power and lawful authority to enter into this Agreement and all
other documents executed and delivered or to be executed and delivered in
connection herewith (hereinafter collectively referred to with this
Agreement as the "Settlement Documents"). The execution, delivery and
performance of this Agreement and all other Settlement Documents have been
duly and properly authorized pursuant to all requisite corporate action in
accordance with each of its articles of incorporation, bylaws, and the laws
of the Commonwealth of Pennsylvania, and do not and will not violate any
provisions of any law, rule, regulation, order, writ, judgment, injunction
or decree applicable to Seller or result in a breach or default of any
agreement or instrument to which Seller is a party.
13.2 Due Diligence Materials. Seller agrees to, and shall, deliver to Buyer
copies of any and all documents, agreements, reports, studies, test
results, licenses and permits pertaining to the Property known to or in the
possession or control of Seller, including, without limitation, (i) any
as-built, boundary or other survey of the Property, (ii) the final plans
and specifications for any building erected on the Property including,
without limitation the approximately 45,000 square foot office building
situate thereon (the "Building") and any other improvements on the
Property, (iii) the certificate(s) of occupancy issued by the applicable
governmental authority for the Building and any other improvements on the
Property (all of which are in good standing and in full force and effect),
(iv) any engineering, architectural other inspection reports with respect
to the Property, the Building or any other improvements on the Property,
(v) any soil borings on the Property, (vi) any environmental studies or
test results of or on the Property, (vii) any site plans for the Property,
(viii) any zoning, land use or other permits or approvals applicable to the
Property (all of which are in good standing and in full force and effect),
(ix) any occupational or similar licenses applicable to the Property which
are in good standing and in full force and effect, (x) all roof, HVAC
system and other warranties applicable to the Building or any other
4
improvements on the Property which are in good standing and in full force
and effect, and (xi) all service contracts applicable to the Property which
are in good standing and in full force and effect, together with all
material correspondence relating to any of the foregoing. Prior to the
Closing Date, Buyer and its agents, employees and contractors shall have
the right at any time during usual business hours to enter upon the
Property, the Building and any other improvements on the Property for
purposes of undertaking any such surveys, studies or tests thereof deemed
necessary or desirable by Buyer. Buyer shall return to Seller all such
materials delivered to it by Seller if the transfer and conveyance of the
Property to Buyer does not close. Further, Buyer shall repair any damage
done to the Property and restore the same to its former condition. Buyer
shall indemnify Seller, and hold it harmless, of, from and against any and
all loss, damage or liability, action, suit or proceeding, and all costs
and expenses (including attorney's fee), incurred in connection therewith,
arising from or out of any action taken or performed at, adjacent to or
affecting the Property, or damage caused to any part of the Property, or to
any person, by Buyer prior to Closing.
13.3 Title to Property and Legal Proceedings. (i) There are no pending or,
to Seller's knowledge, threatened claims, suits, judgments, arbitration
proceedings, administrative claims, executions or other legal or equitable
actions or proceedings against Seller; (ii) Seller is the owner of good and
marketable, fee simple title to the Property, free and clear of all
restrictions, liens and encumbrances of any kind whatsoever except those
referred to in paragraph 9(a) hereof; (iii) there are no mortgages, liens,
claims of lien or other encumbrances against the Property or any portion
thereof; (iv) there are no outstanding contracts, agreements or options for
the sale, lease, sublease or other alienation of the Property or any
portion thereof; (v) Seller's fixtures and personal property aare free and
clear of all liens and encumbrances, and (vi) there are no unfulfilled
obligations under any contracts, leases, subleases or other agreements with
respect to the Property that cannot be terminated as of Closing.
13.4 Outstanding Debts. Neither Seller nor any other person has any
outstanding debts or obligations in connection with Seller's ownership and
operation of the Property except for ad valorem, real estate and personal
property taxes for the year 2000 which are either not yet due or payable or
the final payment date for which has not yet passed, and the amount of
which is estimated to be $0, which estimate is based upon the Appraisal and
the actual Property taxes for the year 1999.
13.5 No Leases or Agreements to Sell. Except for the leases, subleases or
similar agreements, true and complete copies of which are attached hereto
as Exhibit "A" (the "Leases"), there are no leases, subleases or similar
agreements with respect to the Property or any portion thereof, or to sell
the Property or any portion thereof.
13.6 Condemnation or Annexation Proceedings. There are no pending or, to
Seller's knowledge, threatened condemnation proceedings or annexation
proceedings affecting the Property, and there are no governmental
assessments not disclosed herein or any agreements to convey any portion of
the Property or any rights thereto to any person or entity not disclosed
herein, including, without limitation, any government or governmental
agency.
5
13.7 Compliance with Laws. Seller has not received notice from, nor has
knowledge of, any governmental entity claiming that Seller, any other
person, or the Property, or any portion thereof, is not presently in
compliance with any laws, ordinances, rules or regulations bearing upon the
use or operation of the Property, including specifically, but without
limitation, any such notice relating to zoning laws or building codes or
regulations, development approvals or the Americans with Disabilities Act,
and that all permits, licenses or other evidences of authority to use and
operate the Property as it is presently being operated are current, valid
and in full force and effect.
13.8 Environmental Condition. The Property, or any part thereof, contains
no toxic or hazardous substances, wastes or materials (as those terms are
defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended) ("CERCLA"), or any other substance,
waste or material defined, designated, classified or considered to be a
toxic waste, a hazardous or toxic material, or a hazardous, toxic,
radioactive or dangerous substance under any law, rule or regulation
relating to any hazardous or toxic substance or material. There are no
investigations, inquiries, orders, hearings, actions or other proceedings
by or before any governmental agency in connection with any actual or
alleged use, storage, holding, existence, release, emission, discharge,
generation, processing, abatement, removal, disposition, handling or
transportation of any hazardous or toxic substances or material as defined
in CERCLA on or at the Property or any portion thereof. There have never
been, nor presently are, underground storage tanks within the Property or
the occurrence thereon of any releases of any such hazardous or toxic
wastes, substances or materials or petroleum based products as defined in
CERCLA. That the Property contains no asbestos, polychlorinated biphenyls,
lead-based paint or any other substance, the removal or disposal of which
is subject to any law or regulation. No law has been violated in the
handling or disposing of any material or waste or the discharge of any
material into the soil, air, surface, water, or ground water at, on or
above the Property.
13.9 Utilities. The Property is adequately served by potable public water,
public sanitary sewer, electricity, telephone and any other utility
services necessary for the useful service of the Building as an office
building, and such utility systems are fully paid for as of the date of
this Agreement.
13.10 Parking. The Property contains a number of automobile parking spaces
and handicapped spaces sufficient for the use and enjoyment of the Building
as intended and in compliance with all applicable laws.
6
13.11 Drainage. The Property is adequately served by a properly, in good
standing and in full force and effect permitted and installed stormwater
drainage system and is not located in a flood plain.
13.12 Access. The Property lies adjacent to a publicly dedicated
right-of-way and maintains legal access thereto.
13.13 Condition. The Building and all other improvements on the Real
Property, and all material building systems therein (including, without
limitation, the roof, the foundation and all other structural elements, the
HVAC system and all electrical and plumbing facilities) are in good and
working condition and serve effectively for their intended purposes.
13.14 Certificate. Seller shall execute and deliver a Certificate
certifying that all of its covenants, representations and warranties
contained herein are true and complete as of the Closing Date.
13.15 No Broker. Seller and Buyer acknowledge that no licensed real estate
Broker, third party or other agent(s) is entitled to a commission from the
purchase and sale of the Property under this Agreement.
13.16 Survivability. The provisions of this Section will survive the
performance of this Agreement.
14. TIME OF THE ESSENCE. The said time for Closing and all other times referred
to for the performance of any of the obligations of this Agreement are
hereby agreed to be of the essence of this Agreement. For the purposes of
this Agreement, number of days will be counted from the date of execution,
by excluding the day this Agreement was executed and including the last day
of the time period.
15. ARBITRATION OF DISPUTES. Buyer and Seller agree to arbitrate any dispute
between them that cannot be amicably resolved. After written demand for
arbitration by either Buyer or Seller, each party will select a competent
and disinterested arbitrator. The two so selected will select a third. If
selection of the third arbitrator cannot be agreed upon within 30 days,
either party may request that selection be made by a judge of a court of
record in the county in which arbitration is pending. Each party will pay
its chosen arbitrator and bear equally expenses for the third and all other
expenses of arbitration. Arbitration will be conducted in accordance with
the provisions of Pennsylvania Common Law Arbitration, 42 Pa. C.S.A.
ss.7341 et seq. This agreement to arbitrate disputes arising from this
Agreement will survive Closing.
16. ENTIRE AGREEMENT. It is further understood that this agreement contains the
whole agreement between Seller and Buyer, and there are no other terms,
obligations, covenants, representations, statements or conditions, oral or
otherwise, of any kind whatsoever concerning this sale. Furthermore, this
Agreement will not be altered, amended, changed or modified except in
writing executed by the parties.
[Rest of page left intentionally blank]
7
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have hereunder set forth their hands and seals the day and year first above
written.
XXXXXXXXXX.XXX, INC. AS BUYER WITNESS AS TO BUYER
/s/ Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx
--------------------------- ---------------------------
Xxxxxxx Xxxxxx. President & CEO Address: XxxxxxXxxx.xxx, Inc.
XxxxxxXxxx.xxx, Inc. 0000 XxXxxx Xxxx
0000 X. X'Xxxxxx Xxxx. Xxxx Xxxxxxxx, XX 00000
Xxxxxx, XX 00000
000-000-0000 Ph.
000-000-0000
HEALTHAXIS INC. AS SELLER WITNESS AS TO SELLER
/s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
-------------------- ---------------------------
Xxxxxxx Xxxxx, CFO Address: XxxxxxXxxx.xxx, Inc.
HealthAxis Inc. 0000 XxXxxx Xxxx
0000 XxXxxx Xxxx Xxxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxx, XX 00000
8
