AGREEMENT FOR SALE AND PURCHASE OF PROPERTY EDGEWOOD VISTA 2 SENIOR HOUSING ASSETS PORTFOLIO BETWEEN IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP AND EVI GRAND CITIES, LLC (Seller) AND EDGEWOODVISTA SENIOR LIVING, INC., EDGEWOOD PROPERTIES...

AGREEMENT FOR SALE AND PURCHASE OF PROPERTY

EDGEWOOD VISTA 2  SENIOR HOUSING ASSETS PORTFOLIO

BETWEEN 

IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP AND EVI GRAND CITIES, LLC (Seller)

 

 

AND

EDGEWOODVISTA SENIOR LIVING, INC.,  EDGEWOOD PROPERTIES MANAGEMENT LLC,  AND EDGEWOOD PROPERTIES, LLLP (Buyer)

 

 

 

 

 

 

 

 

 

 

AGREEMENT FOR SALE AND PURCHASE OF PROPERTY 

EDGEWOOD VISTA 2  SENIOR HOUSING ASSETS PORTFOLIO

 

This AGREEMENT FOR SALE AND PURCHASE OF PROPERTY (this “Agreement”) is made and entered into effective as of the later date of signature set forth on the signature page (the “Contract Date”), by and between IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP (the “Seller”), and EDGEWOODVISTA SENIOR LIVING, INC., a  North Dakota corporation,  EDGEWOOD PROPERTIES MANAGEMENT LLC, a North Dakota limited liability company, and EDGEWOOD PROPERTIES, LLLP, a North Dakota limited liability limited partnership (collectively, the “Buyer”).  The current notice address of each party is set forth in Section 15 below.

In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

Section 1.Definitions.  For purposes of this Agreement, each of the following terms, when used herein with an initial capital letter, shall have the meaning ascribed to it as follows:

Section 2.Agreement to Sell and to Purchase; Other Purchase Agreements.    

 

2.1  Agreement to Sell and to Purchase.  Subject to and in accordance with the terms, conditions and provisions hereof, Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the Property from Seller.

 

2.2 Other Purchase Agreements.  Buyer and Seller acknowledge that Buyer and Seller, their affiliates and/or subsidiaries are also party(ies) to those certain other Agreements for Sale and Purchase of Property, identified on Exhibit 3 attached hereto (each referred to as a “Purchase Agreement” and, collectively, as the “Purchase Agreements”), relating to the sale of certain senior housing properties more particularly described and defined in the Purchase Agreements.  Buyer and Seller further acknowledge that they intend for the Closing of this transaction to require the Closing of the transactions contemplated in the Purchase Agreements and for the closing of the transactions contemplated in the Purchase Agreements to require the Closing of this transaction.  Buyer and Seller agree that in the event Buyer elects to terminate this Agreement for any reason as expressly permitted pursuant to the provisions hereof (other than termination as a result of (i) the willful or intentional breach or default under this Agreement by Seller or (ii) Seller's failure to remove a Financial Encumbrance as defined in Section 5.3), then such termination shall be deemed a termination of all Purchase Agreements; provided, however, Seller in its sole discretion may waive the termination of any or all Purchase Agreements and elect to proceed with the transaction pursuant to the remaining terms and conditions of such Purchase Agreement(s).

 

Section 3.▇▇▇▇▇▇▇ Money. 

3.1Deposit and Disposition.  Simultaneous with the execution and delivery of this Agreement, Buyer is depositing with Closing Agent the cash sum of Three Hundred One Thousand Fifty-four and 91/100 Dollars ($301,054.91) (the “▇▇▇▇▇▇▇ Money”).  If this Agreement is not terminated by Buyer before the Inspection Date (as defined in Section 6.3), Buyer shall increase the ▇▇▇▇▇▇▇ Money by depositing an additional Four Hundred Fifty-one Thousand Five Hundred Eighty-two and 36/100 Dollars ($451,582.36) with Closing Agent within two (2) business days after the Inspection Date.  The ▇▇▇▇▇▇▇ Money shall be held by Closing Agent until disbursed as set forth in this Agreement.  Buyer shall execute and deliver any appropriate W-9 forms requested by Closing Agent.  If and only if (a) Buyer acquires the Property, and (b) the Closing of the transaction contemplated in this Agreement is the final closing among the Purchase Agreements, then the ▇▇▇▇▇▇▇ Money shall be paid to Seller and applied as a credit against the Consideration.  If the Closing of the transaction contemplated in this Agreement is not the final closing among the Purchase Agreements, then the ▇▇▇▇▇▇▇ Money shall not be applied as a credit against the Consideration in this transaction, but shall rather be applied as a credit against the consideration of such final closing.  If all of the conditions precedent set forth in this Agreement are not met or resolved, or if Buyer terminates this Agreement as expressly permitted pursuant to the provisions hereof, then Closing Agent shall return the ▇▇▇▇▇▇▇ Money to Buyer, subject to Section 3.3 below.  If all of the conditions precedent set forth in this Agreement have been satisfied or waived by Buyer, and if thereafter Buyer fails to acquire the Property pursuant to the terms of this Agreement, then the ▇▇▇▇▇▇▇ Money shall be delivered to Seller and shall be retained by Seller as liquidated damages.  If there is a dispute between Buyer and Seller as to the distribution of the ▇▇▇▇▇▇▇ Money, or if for any other reason Closing Agent in good faith elects not to make any such disbursement, then Closing Agent shall continue to hold the ▇▇▇▇▇▇▇ Money until otherwise directed by written instructions executed both by Seller and Buyer, or by a final judgment of a court of competent jurisdiction.  Upon request, Buyer and Seller shall execute Closing Agent’s standard ▇▇▇▇▇▇▇ money escrow agreement; provided, however, that if there is any conflict or inconsistency between such escrow agreement and this Agreement, then this Agreement shall control. 

3.2Investments.  Following the collection of the ▇▇▇▇▇▇▇ Money, Closing Agent shall, at the written request of Buyer, invest the ▇▇▇▇▇▇▇ Money in:  (a) obligations of the United States government, its agencies or independent departments; (b) certificates of deposit issued by a banking institution with assets in excess of $1 billion and with which Closing Agent has a substantial banking relationship; or (c) either a

non-interest bearing account providing F.D.I.C. insurance in the full amount of the ▇▇▇▇▇▇▇ Money, or an interest-bearing account at a banking institution with assets in excess of $1 billion, and with which Closing Agent has a substantial banking relationship.    No investment of the ▇▇▇▇▇▇▇ Money shall have a maturity date beyond the Closing Date.

3.3 Non-Refundable ▇▇▇▇▇▇▇ Money.  Except as specifically set forth in this Agreement, the ▇▇▇▇▇▇▇ Money shall be non-refundable to Buyer in accordance with the following schedule: 

 

Section 4.Consideration and Prorations.

4.1Consideration.  The “Consideration” shall be the sum of Seventy-one Million Thirty-seven Thousand and 00/100 Dollars ($71,037,000.00), which purchase price shall be allocated to each individual Property as set forth in Exhibit 4.1 attached hereto.  The parties shall make the prorations and allocations set forth in this section as a credit or debit to the Consideration.  The balance of the Consideration shall be paid by Buyer to Escrow Agent, to be released to Seller at Closing, by wire transfer of immediately available funds by not later than 12:00 p.m. Central Time.

4.2Prorations.

4.3 Contingent Payment.  Notwithstanding anything in this Agreement to the contrary, if any of the Properties are sold by Buyer within twelve (12) months after the Closing Date, Buyer shall pay to Seller an amount equal to five percent (5%) of the Consideration allocated to such Property.  The Deeds shall contain a deed restriction granting Seller the right to receive such additional sum from Buyer.

Section 5.    Title and Survey.

5.1Title Commitments.  As soon as reasonably possible after the Contract Date, Seller shall coordinate the Title Company’s delivery to Buyer of the Title Commitments, in the amount of the Consideration.  The Title Commitments shall show the condition of title to the Land and Improvements, shall name Buyer as the proposed insured, and shall include legible copies of all recorded exceptions and covenants, conditions, easements, and restrictions affecting the Property.  The Title Commitments shall also contain the conditions upon which the Title Company will issue the owners title insurance policies at Closing pursuant to the Title Commitment (the “Title Policy”).  However, this condition shall be deemed satisfied if the Title Policies (or any such endorsements or reinsurance and/or coinsurance) is not issued by reason of Buyer’s failing to satisfy (a) the Title Company’s routine underwriting requirements (including the “written or pre-printed requirements” set forth in the applicable commitment) for issuance thereof, or (b) any other requirements of Buyer specified by the Title Company in writing prior to the Inspection Date for issuance thereof. 

5.2New Survey.  Seller shall deliver to Buyer, as part of the Due Diligence Documents, a copy of the most recent surveys of the Property in Seller’s possession (the “Existing Survey”).  In the event Buyer commissions new surveys of the Property (the “New Survey”), then Seller shall provide all cooperation reasonably requested by Buyer regarding the preparation of the New Surveys.  Buyer shall be responsible for all costs associated with the New Surveys.  The New Surveys shall be certified to Seller, Buyer, and the Title Company.  Seller shall receive a signed original of the final New Surveys as soon as it is available and in any event, at or prior to Closing.

5.3Title Notice.  If the Title Commitments or Existing Surveys disclose matters that are not acceptable to Buyer (“Unpermitted Exceptions”), then Buyer shall notify Seller in writing (the “Title Notice”) of Buyer’s objections within the later of (i) ten (10) days after Buyer has received both the Title Commitments and the Existing Surveys, or (ii) ten (10) days prior to the Inspection Date (the “Objection Period”).  Mortgages, deeds of trust, assignment of leases and rents and Uniform Commercial Code financing statements (collectively, referred to as “Financial Encumbrances”) shall be deemed to be objected to and shall be removed prior to or at the Closing.  In the event that Buyer notifies Seller of any objections within the Objection Period, then Seller shall notify Buyer in writing, within ten (10) days following the date of receipt of Buyer’s notice of such objections, that either: (a) the Unpermitted Exceptions will be, prior to Closing, removed from the Commitments, insured over by the Title Company pursuant to an endorsement to the Title Policies, or otherwise cured to Buyer’s reasonable satisfaction; or (b) Seller declines to arrange to have the Unpermitted Exceptions removed, insured over, or otherwise cured.  If Seller fails to deliver such written notice to Buyer within such 10-day period, then Seller shall be deemed to have declined to arrange to have the Unpermitted Exceptions removed, insured over, or otherwise cured.  If Seller declines to arrange to remove, insure over, or otherwise cure any of the Unpermitted Exceptions, then Buyer shall elect, through written notice to Seller within ten (10) days after Buyer’s receipt of Seller’s written declination, to:  (a) terminate this Agreement and receive refund of the ▇▇▇▇▇▇▇ Money irrespective of whether any or all of the ▇▇▇▇▇▇▇ Money has “gone hard” as described in Section 3.3; or (b) waive such objections and take title subject to the Unpermitted Exceptions that Seller

has declined to remove, insure over, or otherwise cure.  The Closing Date shall be adjusted, if necessary, to allow for any elections allowed or required by this Section.

5.4Pre-Closing “Gap” Title Obligations.  Buyer may, at or prior to Closing, notify Seller in writing (the “Gap Notice”) of any objections to title raised by the Title Company after Buyer’s receipt of the initial Title Commitments, or of any material defect shown on the New Surveys that was not disclosed on the Existing Surveys; provided that Buyer must notify the Seller of such objection to title within ten (10) days of being made aware of the existence of any such new objection.  If Buyer sends a Gap Notice to the Seller, Buyer and the Seller shall have the same rights and obligations with respect to such notice as apply to a Title Notice under Section 5.3 hereof.

Section 6.Buyer’s Inspection.

6.1Document Inspection.  Buyer and Seller acknowledge that Buyer (by itself or through such agents, consultants and others as Buyer shall designate) may inspect, test and analyze the Property (provided that any inspections or testing of the Land or Improvements shall be conducted in accordance with Section 6.2 below).  Seller will, within twenty  (20) days after the Contract Date, deliver to Buyer complete copies of the Due Diligence Documents set forth on Exhibit 2.  In addition to the Due Diligence Documents, Seller will make available for Buyer's inspection any appraisals with respect to the Property; provided, however, that said appraisals are subject to confidentiality and are limited to use for mortgage lending sources only.  Buyer hereby agrees that said appraisals shall not be distributed to financing sources other than regulated financial service companies relying on the contents of such appraisals in order to provide mortgage debt. Notwithstanding anything in this Agreement to the contrary, Buyer acknowledges and understands that some of the materials delivered by Seller have been prepared by parties other than Seller or Seller's current property manager.  Seller makes no representation or warranty whatsoever, express or implied, as to the completeness, content, or accuracy of any delivered materials.

6.2Physical Inspection.  Buyer and its consultants and agents shall have the right, from time to time prior to the earlier of the Closing or termination of this Agreement, to enter upon the Property to examine the same and the condition thereof, and to conduct such investigations, inspections, tests and studies as Buyer shall determine to be reasonably necessary.  Buyer agrees to conduct such activities during normal business hours to the extent practicable.  Buyer agrees to pay all costs of such investigations, inspections, tests and studies and to indemnify and hold Seller harmless from and against any claims for injury or death to persons or damage to property arising out of any action of any person or firm entering the Property on Buyer’s behalf as aforesaid (provided that for the avoidance of doubt, the foregoing indemnity shall not be applicable if such claims arise from or are in connection with any such damages to the extent resulting from a pre-existing condition, unless exacerbated or adversely affected by Buyer or any of its employees, consultants, agents, prospective lenders (and their consultants) or representatives, and, in such case, only to the extent so exacerbated), which indemnity shall survive the Closing or any termination of this Agreement without the Closing having occurred.  Prior to performing any environmental investigation of the Property (other than a Phase I environmental site assessment), Buyer shall notify Seller of the name of the environmental consultant that will conduct the investigation.  Buyer shall not have the right to disturb the soil at the Property, or to perform any destructive or invasive testing, without Seller’s prior written consent.  In requesting any such consent, Buyer shall provide Seller with a proposed written work plan describing the investigation, the name of the contractor that will perform the investigation, evidence of insurance coverage for the contractor, and in the case of soil testing a site plan showing where the soil will be disturbed.  Buyer shall provide Seller, at no cost to Seller, within ten (10) days following Buyer’s receipt of same, with a complete copy of any reports related to any such environmental, soil, or destructive/invasive testing.  Neither Buyer nor any of Buyer’s consultants shall release or report the findings of any tests to any state or federal agency or other party without Seller’s prior written consent.

6.3Inspection Period; Seller's Fiduciary Out.  Buyer shall have until that date which is sixty (60) days after the Contract Date (the 60th-day being the  “Inspection Date”) in which to make such investigations, inspections, tests and studies permitted herein with respect to the Property, the Due Diligence Documents, and any other thing or matter relating to the Property as Buyer reasonably deems appropriate, and, at the sole discretion of Buyer, to terminate this Agreement on or before such Inspection Date if Buyer is not, for any reason or for no reason, satisfied with the Property.  If Buyer terminates this Agreement on or before the Inspection Date, then the ▇▇▇▇▇▇▇ Money shall be returned to Buyer and neither party shall have any further obligation to the other except as to provisions herein which are to survive termination.    

6.3.1.Subject to the terms of this Section 6.3, during the period commencing on the Contract Date and continuing until the earlier to occur of the termination of this Agreement pursuant to its terms, or the Closing, the Seller shall not, nor shall it authorize or knowingly permit its directors, officers, employees, affiliates, financial advisors, legal counsel, accountants and other agents and representatives (“Representatives”) to (i) solicit, initiate, cause, or knowingly facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into any agreement, agreement-in-principle or letter of intent with respect to or accept any Acquisition Proposal (or resolve to or publicly propose to do any of the foregoing), or (iii) participate or engage in any negotiations regarding, or furnish to any Person any information with respect to, any Acquisition Proposal.

6.3.2.Notwithstanding anything to the contrary set forth in this Section 6.3 or elsewhere in this Agreement, if, at any time prior to the Inspection Date, (i) Seller receives an Acquisition Proposal from a third party under circumstances in which Seller and its Representatives have complied with their obligations under this Section 6.3 and (ii) Seller’s Board of Directors determines in good faith (after consultation with Seller’s financial advisor and legal counsel) that such Acquisition Proposal is, or reasonably could lead to, a Superior Proposal, Seller may, subject to providing Buyer prior written notice (which notice shall contain a statement to the effect that the Board of Directors has made the determination required by this Section 6.3.2), participate or engage in any negotiations with such third party, or disclose or provide any non-public information or data relating to Seller to, or afford access to the properties, assets, books or records or Representatives of Seller to, any such third party and any potential financing sources of such third party, provided that the provision of any non-public information or data to such third party is pursuant to a confidentiality agreement and a copy of any such non-public information or data is delivered simultaneously to Buyer to the extent it has not previously been so furnished to Buyer.

6.3.3. In addition to any notice obligations contemplated by this Section 6.3, Seller shall as promptly as practicable (and in any event within 48 hours) notify Buyer of Seller's receipt of any Acquisition Proposal.

6.3.4.Notwithstanding anything herein to the contrary, if at any time prior to the Inspection Date Seller has received a Superior Proposal, Seller may terminate this Agreement and all other Purchase Agreements and enter into a definitive written agreement providing for such Superior Proposal simultaneously with the termination of this Agreement. In the event of such termination, (i) all ▇▇▇▇▇▇▇ Money shall be returned to Buyer, irrespective of whether such money has “gone hard” as provided in Section 3.3, and (ii) Seller shall immediately pay to Buyer an aggregate additional amount of $2,000,000 collectively with all other Purchase Agreements (the “Breakage Fee”).

6.4Liability Insurance.  Buyer agrees that it will cause it and any person accessing the Property for purposes of this inspection to be covered by not less than $2,000,000 commercial general liability insurance (with, in the case of Buyer’s coverage, a contractual liability endorsement, in support of

Buyer’s indemnity obligations under this Agreement), insuring all activity and conduct of such person while exercising such right of access, and providing that Seller and its affiliates are additional insureds, issued by a licensed insurance company authorized to do business in each state in which a Property is located and otherwise reasonably acceptable to Seller.

6.5Indemnity.  Buyer agrees to indemnify, defend and hold harmless Seller and its affiliates, members, partners, subsidiaries, shareholders, officers, directors and agents from any actually incurred loss, injury, damage, cause of action, liability, claim, lien, cost or expense, including reasonable attorneys’ fees and costs (collectively, “Damages”), arising from the exercise by Buyer or its employees, consultants, agents or representatives of the right of access under this Agreement or out of any of the foregoing (provided that for the avoidance of doubt, Damages shall not be deemed to have arisen from or in connection with any such access or inspection to the extent resulting from a pre-existing condition, unless exacerbated or adversely affected by Buyer or any of its employees, consultants, agents, prospective lenders (and their consultants) or representatives, and, in such case, only to the extent so exacerbated).  The indemnity in this subsection shall survive the Closing or any termination of this Agreement.

6.6Restoration.  Buyer agrees at its own expense to promptly repair or restore the Property, or, at Seller’s option, to reimburse Seller for any repair or restoration costs, if any inspection or test requires or results in any damage to or alteration of the condition of the Property.  The obligations set forth in this subsection shall survive the Closing or any termination of this Agreement.

6.7Confidentiality.   Buyer agrees to maintain in confidence the information contained in the Due Diligence Documents (the “Transaction Information”).  Buyer shall not disclose any portion of the Transaction Information to any person or entity and shall maintain the Transaction Information in the strictest confidence; provided, however, that Buyer may disclose the Transaction Information:  (a) to Buyer’s agents to the extent that such agents reasonably need to know such Transaction Information in order to assist, and perform services on behalf of, Buyer; (b) to the extent required by any governmental authority; (c) to the extent required by any applicable statute, law, or regulation; and (d) in connection with any litigation that may arise between the parties in connection with the transactions contemplated by this Agreement.  Buyer agrees that the Transaction Information shall be used solely for purposes of evaluating the acquisition and potential ownership and operation of the Property.  In the event this Agreement is terminated for any reason whatsoever, Buyer shall promptly return to Seller the Due Diligence Documents. The undertakings of Buyer pursuant to this Section shall survive the termination of this Agreement, but shall terminate upon Closing if this transaction closes.

The parties agree that, prior to Closing, and except for disclosures required by law or governmental regulations applicable to such party, and disclosures to such party’s advisors or consultants, no party may, with respect to this Agreement and the transactions contemplated hereby, make any public announcements or issue press releases regarding this Agreement or the transactions contemplated hereby to any third party without the prior written consent of the other party hereto; provided, however, that notwithstanding anything to the contrary contained in this Agreement, (a) Seller may file a Securities and Exchange Commission's disclosure Form 8-K and/or a Form 10-Q upon the execution and delivery of this Agreement and may disclose any and all necessary material information required to be disclosed thereunder, including without limitation the inclusion of a copy of this Agreement thereto, and (b) after Closing (i) either party may make a press release or other disclosure which shall be subject to the approval of the other party, which approval shall not be unreasonably withheld, denied or conditioned; and (ii) any party or an affiliate of such party may make any public statement, filing or other disclosure which any of them reasonably believes to be required or desirable under applicable securities laws (provided, however, such party shall not disclose the allocated Purchase Price or the specific Properties included in this transaction, unless securities counsel for such party has advised that the same is required by applicable securities laws).    

Section 7.Seller’s Representations, Warranties and Covenants.

Section 8.Buyer’s Representations, Warranties and Covenants.  Buyer represents and warrants that, as of the Contract Date:

Section 9.Conditions to Closing.  Buyer’s obligation to proceed to Closing under this Agreement is subject to:  (a) Seller having made all deliveries as required by Section 10.4 below; (b) Buyer's ownership of the Property shall have been approved by all appropriate state and local regulatory and

licensing authorities and agencies, including receipt by Buyer of all consents, approvals, licenses and certificates as may be necessary for Buyer lawfully to own the Property; (c) all representations and warranties made in this Agreement by Seller will be true as of the Closing Date, as though such representations and warranties had been made on and as of the Closing Date; and (d) Buyer having obtained acquisition debt financing to purchase the Property.  In the event Buyer fails to obtain acquisition debt financing or the necessary approvals to own the Property on or before the Closing Date, then Buyer shall have the right, through written notice to Seller, to terminate this Agreement, and receive a partial refund of the ▇▇▇▇▇▇▇ Money, subject to Section 3 of this Agreement.  Seller’s obligation to proceed to Closing under this Agreement is subject to: (x) Tenant shall have performed all obligations under the Leases through the day preceding the Closing Date, including without limitation the payment of all scheduled Rent and Taxes; (y) Buyer having made all deliveries as required by Section 10.5 below; and (z) the Seller shall have been paid the entire Consideration, subject to adjustments and prorations as set forth herein. 

Section 10.Closing.

10.1Time and Place.  Provided that all of the conditions set forth in this Agreement are theretofore fully satisfied or performed, the Closing shall be held on January 18, 2017, or such later date as may be mutually agreed upon by the parties, but in no event later than April 28, 2017 (the “Closing” or “Closing Date”).  Both parties will use good faith efforts to: (i) close on January 18, 2017, or as soon thereafter as is reasonably possible, and (ii) to close on this Agreement and the other Purchase Agreements on the same date.  In the event that Buyer requests to close on this Agreement on a date different than closing on the other Purchase Agreements, Seller shall be entitled in its sole discretion to determine the order in which the closings will occur.  In the event the Parties are unable to mutually agree upon a Closing Date other than January 18, 2017, then the Closing Date shall be April 28, 2017.  If Closing has not occurred by April 28, 2017, for any reason other than Seller’s material default under this Agreement, then Seller in its sole discretion may at any time thereafter terminate this Agreement and retain any portion of the ▇▇▇▇▇▇▇ Money to which it is entitled pursuant to Section 3 of this Agreement.  Closing shall occur through a mail escrow style closing with the Closing Agent.

10.2Buyer’s Costs.  Buyer shall pay:

10.3Seller’s Costs.  Seller shall pay:

10.4Seller’s Closing Deliveries.  Seller shall obtain and deliver to Buyer at the Closing the following documents (all of which shall be duly executed and, if required for recording, acknowledged, which documents Buyer agrees to execute and acknowledge where required):

10.5Buyer’s Closing Deliveries.  Buyer shall deliver to Seller at Closing:

10.6 Closing Escrow.  Buyer and/or Seller at their option may deposit the respective Closing deliveries described in Sections 10.4 and 10.5 with Closing Agent with appropriate instructions for recording and disbursement consistent with this Agreement.  Except for the Deeds, Buyer and Seller may deliver electronic versions, by facsimile or electronic mail, of the executed documents required to be delivered pursuant to this Agreement at Closing; provided, however, the Buyer and Seller shall deliver originally executed documents promptly after the Closing. 

Section 11.  General Indemnification.  Subject to the express provisions of this Agreement, Buyer agrees to indemnify, to defend, and to hold Seller harmless from all claims, demands, causes of action, and suit or suits of any nature whatsoever arising out of or relating to its ownership and/or operation of the Property and any and all activities relating thereto first accruing after the Closing.

11.1Subject to the express provisions of this Agreement, Seller agrees to indemnify, defend and hold Buyer harmless from all third party claims arising out of or relating to Seller’s ownership of the Property accruing prior to Closing.  As used in the preceding sentence, "third party claims" excludes claims raised by Buyer, any entity or person affiliated with or related to Buyer in any way, and claims raised by any governmental or quasi-governmental entity related to the Property. 

Section 12.Default and Remedies.

12.1Seller’s Default.  Should Seller breach any of Seller’s covenants, representations, or warranties contained in this Agreement, Buyer may, upon ten (10) days’ written notice to Seller, and provided such breach or failure is not cured within such 10-day period:

12.2Buyer’s Default.  In the event Buyer defaults in its obligations to close the purchase of the Property, or in the event Buyer otherwise defaults hereunder prior to Closing, then (a) Seller shall receive the ▇▇▇▇▇▇▇ Money as fixed and liquidated damages, this Agreement shall terminate, and neither party shall have any further liability hereunder, except for those liabilities which expressly survive the termination of this Agreement and Buyer shall immediately direct the Title Company to pay the ▇▇▇▇▇▇▇ Money to Seller; and/or (b) enforce specific performance of this Agreement, in which case the ▇▇▇▇▇▇▇ Money shall apply as a credit towards the purchase price ordered by the court ordering specific performance.  Seller shall have no other remedy for any pre-Closing default by Buyer, including any right to damages.  BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT:  (1) THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO HAVE OCCURRED DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) BUYER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND DOES CONSTITUTE VALID LIQUIDATED DAMAGES.  All of the foregoing shall be without limitation upon the rights and remedies of Seller hereunder, at law or in equity, in the event of a default by Buyer pursuant to Sections 6.2, 6.5, 8, 12.3, or 17.3, or pursuant to any covenant, agreement, indemnity, representation or warranty of Buyer that survives the Closing or the termination of this Agreement.    NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION, IF BUYER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO SELL AND TRANSFER THE PROPERTY OR REFUSES TO CONSENT TO OR INSTRUCT RELEASE OF THE ▇▇▇▇▇▇▇ MONEY TO SELLER IF REQUIRED BY CLOSING AGENT (EACH A “BUYER’S ACTION”), SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION FROM BRINGING AN ACTION AGAINST BUYER SEEKING EXPUNGEMENT OR RELIEF FROM ANY IMPROPERLY FILED LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF ANY BUYER’S ACTION BUT ONLY TO THE EXTENT THAT SELLER IS THE PREVAILING PARTY; AND THE AMOUNT OF ANY SUCH FEES, COSTS AND EXPENSES AWARDED TO SELLER SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN.  NOTHING IN THIS AGREEMENT SHALL, HOWEVER, BE DEEMED TO LIMIT BUYER’S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF BUYER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR FOR ATTORNEYS’ FEES AND COSTS AS PROVIDED BELOW.  NOTWITHSTANDING THE

FOREGOING, BUYER MAY FILE A LIS PENDENS TO THE EXTENT NECESSARY TO PRESERVE A CLAIM FOR SPECIFIC PERFORMANCE.

12.3Attorneys’ Fees to Prevailing Party.  In the event of any litigation between the parties hereto under any of the provisions of this Agreement, the non-prevailing party to such litigation agrees to pay to the prevailing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in such litigation.  The parties agree that the court presiding over the litigation shall determine whether a party is a “prevailing party,” and shall determine the reasonable amount of attorney’s fees and costs recoverable.  The parties agree that the amount of attorneys’ fees and costs which may be awarded must bear a reasonable relationship to, and must be limited by the court to a reasonable amount in view of, the amount recovered by the prevailing party in such matter.

12.4  Cross-Default.  A default by either party under any other Purchase Agreement or the Purchase Agreements shall automatically be deemed to be a default by such party under this Agreement and a default by either party under this Agreement shall automatically be deemed to be a default by such party under the other Purchase Agreements.    

Section 13.Condemnation.  If, between the Contract Date and the Closing Date, any condemnation or eminent domain proceedings are initiated or threatened that might result in the taking of any part of the Improvements or the Land or access to the Land from adjacent roadways, then Buyer at its sole discretion may elect to terminate this Agreement without cost, obligation, or liability on the part of Buyer, in which event this Agreement shall terminate all rights and obligations of the parties hereunder shall cease and the ▇▇▇▇▇▇▇ Money shall be returned to Buyer irrespective of whether any or all of the ▇▇▇▇▇▇▇ Money has “gone hard” as described in Section 3.3.  If this Agreement is not terminated, then Seller shall assign to Buyer all of Seller’s right, title, and interest in and to any award pertaining to the Property made in connection with such condemnation or eminent domain proceedings.  Buyer shall notify Seller within fifteen (15) days after its receipt of written notice from Seller of such condemnation or eminent domain proceeding, whether it elects to exercise its right to terminate.  If Buyer fails to notify Seller of its election within said 15-day period, such failure shall constitute an election not to terminate this Agreement as aforesaid.  The Closing Date shall be adjusted, if necessary, to allow for such election.

Section 14.  Damage or Destruction.  Seller shall bear all risk of loss to the Property until the Closing Date.  If, between the Contract Date and the Closing Date, all or any portion of the Property is damaged or destroyed by fire or other casualty and the cost to repair and restore the Property is more than $2,500,000.00, then Buyer at its sole discretion may elect to terminate this Agreement without cost, obligation, or liability on Buyer’s part, in which event all rights and obligations of the parties hereunder shall cease and the ▇▇▇▇▇▇▇ Money will be returned to Buyer irrespective of whether any or all of the ▇▇▇▇▇▇▇ Money has “gone hard” as described in Section 3.3.  If either this Agreement is not terminable in accordance with the foregoing, or is terminable but is not terminated, then Seller shall, upon Closing, assign to Buyer all of Seller’s right, title, and interest in and to any insurance proceeds, including without limitation any rent loss insurance proceeds (except for proceeds for rent losses prior to Closing), payable as a result of such damage or destruction, plus Seller shall pay to Buyer the amount of any deductible losses under such insurance policies and at Closing shall have no further repair or restoration obligations.  Seller shall advise Buyer regarding the insurance policies covering such damage or destruction and the probable amount of any insurance proceeds payable as a result of such damage or destruction.  Buyer shall notify Seller within fifteen (15) days after receipt of written notice from Seller of such damage or destruction of its election.  If Buyer fails to notify Seller of its election within said 15-day period, such failure shall constitute an election not to terminate this Agreement as aforesaid.  The Closing Date shall be adjusted, if necessary, to allow for such election.

Section 15.Notices.  Wherever any notice or other communication is required or permitted

hereunder, such notice or other communication shall be in writing and shall be delivered by hand, by nationally-recognized overnight express delivery service, or by electronic “email” transfer (conditioned on delivery of a copy of such notice by nationally-recognized overnight express delivery service, which notice shall be deposited for delivery within one business day after delivery of such electronic “email” transfer) to the addresses set out below or at such other addresses as are specified by written notice delivered in accordance herewith:

BUYER:Edgewood Properties, LLLP

▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn:  ▇▇▇ ▇▇▇▇▇▇▇▇

Telephone: (▇▇▇) ▇▇▇-▇▇▇▇

E-mail: ▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

 

With a copy to:▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ P.A.

▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇

Attn:  ▇▇▇▇▇▇▇ ▇. ▇▇▇▇

Telephone: (▇▇▇) ▇▇▇-▇▇▇▇

E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

SELLER:IRET Properties, a North Dakota Limited Partnership

Attn:  General Counsel

▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇ (overnight delivery)

▇▇▇▇▇, ▇▇  ▇▇▇▇▇

Telephone:  (▇▇▇) ▇▇▇-▇▇▇▇

Email:  ▇▇▇▇▇▇@▇▇▇▇.▇▇▇ 

 

With a copy to:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Street LLP

▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn:  ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇

Telephone: (▇▇▇) ▇▇▇-▇▇▇▇

E-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

CLOSING AGENT:▇▇▇▇▇▇▇ Title of Colorado, Inc.

▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn:  ▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Telephone: (▇▇▇) ▇▇▇-▇▇▇▇

E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

Such notices shall be deemed received (a) as of the date of delivery, if delivered by hand by 4:00 p.m. Central on a business day, (b) as of the next business day, if tendered to an overnight express delivery service by the applicable deadline for overnight service, or (c) as of the date of email transmission, if properly transmitted by email prior to 4:00 p.m. Central on a business day.  If a notice is hand delivered or transmitted by email after 4:00 p.m. Central on a business day, then any such notice shall be deemed received as of the next business day.

Section 16.Condition of Property.

Section 17.Miscellaneous.

Section 18.Closing Agent Duties and Disputes.

18.1Other Duties of Closing Agent.  Closing Agent shall not be bound in any way by any other agreement or contract between Seller and Buyer, whether or not Closing Agent has knowledge thereof.  Closing Agent’s only duties and responsibilities with respect to the ▇▇▇▇▇▇▇ Money shall be to hold, in trust, the ▇▇▇▇▇▇▇ Money and other documents delivered to it as agent and to dispose of the ▇▇▇▇▇▇▇ Money and such documents in accordance with the terms of this Agreement.  Without limiting the generality of the foregoing, Closing Agent shall have no responsibility to protect the ▇▇▇▇▇▇▇ Money and shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the ▇▇▇▇▇▇▇ Money or for any diminution in value of the ▇▇▇▇▇▇▇ Money from any cause, other than Closing Agent’s gross negligence or willful misconduct.  Closing Agent may, at the expense of Seller and Buyer, consult with counsel and accountants in connection with its duties under this Agreement.  Closing Agent shall not be liable to the parties hereto for any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel and accountants.  Closing Agent shall not be obligated to take any action hereunder that may, in its reasonable judgment, result in any liability to it unless Closing Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to Closing Agent.

18.2Disputes.  Closing Agent is acting as a stakeholder only with respect to the ▇▇▇▇▇▇▇ Money.  If, after the Inspection Date, there is any dispute as to whether Closing Agent is obligated to deliver the ▇▇▇▇▇▇▇ Money or as to whom the ▇▇▇▇▇▇▇ Money is to be delivered, Closing Agent shall not make any delivery, but shall hold the ▇▇▇▇▇▇▇ Money until receipt by Closing Agent of an authorization in writing, signed by all the parties having an interest in the dispute, directing the disposition of the ▇▇▇▇▇▇▇ Money, or, in the absence of authorization, Closing Agent shall hold the ▇▇▇▇▇▇▇ Money until the final determination of the rights of the parties in an appropriate proceeding.  Closing Agent shall have no responsibility to determine the authenticity or validity of any notice, instruction, instrument, document or other item delivered to it, and it shall be fully protected in acting in accordance with any written notice, direction or instruction given to it under this Agreement and believed by it to be authentic.  If written authorization is not given, or proceedings for a determination are not begun, within 30 days after the date scheduled for the closing of title and diligently continued, Closing Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the ▇▇▇▇▇▇▇ Money with a court of the State of Colorado pending a determination.  Closing Agent shall be reimbursed for all costs and expenses of any action or proceeding, including, without limitation, attorneys’ fees and disbursements incurred in its capacity as Closing Agent, by the party determined not to be entitled to the ▇▇▇▇▇▇▇ Money.  Upon making delivery of the ▇▇▇▇▇▇▇ Money in the manner provided in this Agreement, Closing Agent shall have no further liability hereunder.  In no event shall Closing Agent be under any duty to institute, defend or participate in any proceeding that may arise between Seller and Buyer in connection with the ▇▇▇▇▇▇▇ Money.

18.3Reports.  Closing Agent shall be responsible for the timely filing of any reports or returns required pursuant to the provisions of Section 6045(e) of the Internal Revenue Code of 1986 (and any similar reports or returns required under any state or local laws) in connection with the closing of the transaction contemplated by this Agreement.  This provision shall survive the Closing.

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed and sealed by its duly authorized signatory, effective as of the day and year first above written.

 

[Signature pages to follow]

SIGNATURE PAGE

TO

AGREEMENT FOR SALE AND PURCHASE OF PROPERTY

 

SELLER:

 

IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP

By: IRET, Inc., a North Dakota corporation, its General Partner

 

By: /s/ ▇▇▇▇▇▇▇ ▇. Bosh _____________

Print Name:  ▇▇▇▇▇▇▇ ▇. Bosh

Print Title:  Executive Vice President

 

 

Date:  8-26-2016________________________

 

[Signature pages continue on following page]

 

SIGNATURE PAGE

TO

AGREEMENT FOR SALE AND PURCHASE OF PROPERTY

 

BUYER:

 

 

EDGEWOODVISTA SENIOR LIVING, INC., a Delaware corporation

 

By: /s/ ▇▇▇▇▇▇ Gisi____________________

Print Name:  ▇▇▇▇▇▇ Gisi_______________

Print Title:  President and CEO_________

 

 

Date: 8-24-2016_____________________

 

 

 

 

EDGEWOOD PROPERTIES MANAGEMENT, LLC, a North Dakota limited liability company

 

By: /s/ ▇▇▇ ▇. Strinden________________

Print Name:  ▇▇▇ ▇. Strinden___________

Print Title:  President_________________

 

 

Date: 8-24-2016_____________________

 

 

 

 

EDGEWOOD PROPERTIES, LLLP, a North Dakota limited liability limited partnership

 

By: /s/ ▇▇▇▇▇▇ Gisi____________________

Print Name:  ▇▇▇▇▇▇ Gisi_______________

Print Title:  President

 

 

Date: 8-24-2016_____________________

 

 

[Signature pages continue on following page]

 

SELLER SUBSIDIARY ENTITIES JOINDER SIGNATURE PAGE

TO

AGREEMENT FOR SALE AND PURCHASE OF PROPERTY

 

IN WITNESS WHEREOF, each of the undersigned Seller entities identified on Schedule 1 has caused this Agreement to be executed and sealed by its duly authorized signatory, effective as of the Contract Date.

 

SELLER:

 

EVI Grand Cities, LLC, a North Dakota limited liability company

 

 

By: /s/ ▇▇▇▇▇▇▇ ▇. Bosh______________

Print Name:  ▇▇▇▇▇▇▇ ▇. Bosh

Print Title:  Vice President

 

 

Date: 8-26-2016______________________

 

 

 

 

 

 

 

[Signature pages continue on following page]

 

CONSENT OF CLOSING AGENT

TO

AGREEMENT FOR SALE AND PURCHASE OF PROPERTY

 

The undersigned Closing Agent hereby: (i) acknowledges receipt of the ▇▇▇▇▇▇▇ Money and a copy of the foregoing Agreement, (ii) agrees to act as Closing Agent under said Agreement, (iii) agrees to be the person responsible for reporting the transaction to the Internal Revenue Service under then-current Treasury Regulations, and (iv) be bound by said Agreement in the performance of its duties as Closing Agent.

 

▇▇▇▇▇▇▇ TITLE GUARANTY COMPANY

 

 

By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇

      ▇▇▇▇▇ ▇. ▇▇▇▇

[Print Name]

     Its: Authorized Agent

Title

 

 

Schedule 1

List of Seller Subsidiary Entities Joining in Agreement

 

Owner of EV ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇:

 

EVI Grand Cities, LLC, a North Dakota limited liability company

 

 

 

Exhibit 1

Legal Description of Land

 

1. EV Fargo [4304-4440 37th Ave. S., Fargo, ND]

 

▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Third Addition to the City of Fargo, a Replat of ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Village Addition to the City of Fargo, situate in the County of Cass and the State of North Dakota.

 

and

 

Lots Three, Four, Six, Seven, Eight and Nine, Block Four, of Vista Village Addition to the City of Fargo, a part of the Southwest Quarter of Section Twenty-seven, Township One Hundred Thirty‑nine North of Range Forty-nine West of the Fifth Principal Meridian, situate in the County of Cass and the State of North Dakota.

 

 

2. ▇▇ ▇▇▇▇▇▇▇▇ [14890 Beaver Dam Rd., Brainerd, MN]

 

Parcel 1:  

 

That part of the North 660.00 feet of the West 660.00 feet of Government Lot Two (2), Section Four (4), Township One Hundred Thirty-three (133), Range Twenty-eight (28), lying Northeasterly of the centerline of Crow Wing County Highway No. 20 (Beaver Dam Road) as said centerline is described in Book 361 of Deeds, page 145.

 

Parcel 2:  

 

That part of Government Lot Three (3), Section Four (4), Township One Hundred Thirty‑three (133), Range Twenty-eight (28), lying Easterly of the following described line: Beginning at an iron pipe marked RLS 3091 on the North line of said Government Lot 3, distant 77.65 feet South 89 degrees 07 minutes 44 seconds West of the Northeast corner of said Government Lot 3; thence South 46 degrees 02 minutes 54 seconds West, 23.00 feet to an iron pipe marked RLS 3091; thence continuing South 46 degrees 02 minutes 54 seconds West 170 feet, more or less, to the centerline of Crow Wing County Highway 20 (Beaver Dam Road), as said centerline is described in Book 361 of Deeds, page 145; thence Southeasterly, along said centerline, 341.0 feet, more or less, to a point on the East line of said Government Lot 3 and there terminating.

 

 

3. EV East Grand Forks [608 5th Ave. NW, East Grand Forks, MN]

 

Parcel 1: 

 

▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ First Resubdivision to the City of East Grand Forks, Minnesota, Polk County, Minnesota, except the North 190 feet thereof.

 

Parcel 2: 

 

The North 190 feet of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ First Resubdivision to the City of East Grand Forks, Minnesota, Polk County, Minnesota.

 

 

4. EV Bismarck [3406 Dominion St., Bismarck, ND]

 

Lot One (1), Block Two (2), Replat of North Hills Twelfth Addition to the City of Bismarck, Burleigh County, North Dakota.

 

 

5.  EV Spearfish [540 Falcon Crest Dr., Spearfish, SD]

 

Block 5 of Falcon Crest Subdivision, being a Subdivision of Tract C and Tract D of ▇▇▇▇▇▇ Addition to the City of Spearfish, all located in the E½NE¼NW¼ and W½NW¼NE¼ of Section 24, T6N, R2E, ▇▇▇▇▇▇▇▇ County, South Dakota, EXCEPT Rolling Hills Addition, according to the Plat filed as Document No. 2002-2843.

 

Exhibit 2

List of Due Diligence Documents

 

To the extent that such documents exist in Seller's possession or control:

 

 

 

 

Exhibit 3

List of Purchase Agreements

 

 

1. Agreement for Sale and Purchase of Property  [Wyoming] by and between LSREF Golden Property 14 (WY), LLC and IRET Properties, a North Dakota Limited Partnership, as Seller, and LSREF Golden OPS 14 (WY), LLC, Edgewood Properties Management LLC, and Edgewood Properties, LLLP, as Buyer.

 

2. Agreement for Sale and Purchase of Property  [Hermantown] by and between IRET Properties, a North Dakota Limited Partnership, as Seller, and EdgewoodVista Senior Living Inc., Edgewood Properties Management, LLC, and Edgewood Properties, LLLP, as Buyer. 

 

3. Agreement for Sale and Purchase of Property  [Edgewood Vista 1] by and between IRET Properties, a North Dakota Limited Partnership, as Seller, and EdgewoodVista Senior Living Inc., Edgewood Properties Management, LLC, and Edgewood Properties, LLLP, as Buyer. 

 

4.  Agreement for Sale and Purchase of Property  [Edgewood Vista 3] by and between IRET Properties, a North Dakota Limited Partnership, ▇▇▇ ▇▇▇▇▇▇▇▇, LLC, EVI Sioux Falls, LLC, and IRET – Minot EV, LLC, as Seller, and EdgewoodVista Senior Living Inc., Edgewood Properties Management, LLC, and Edgewood Properties, LLLP, as Buyer. 

 

5. Agreement for Sale and Purchase of Property  [Sartell] by and between IRET Properties, a North Dakota Limited Partnership and IRET – SH 1, LLC, as Seller, and EdgewoodVista Senior Living Inc., Edgewood Properties Management, LLC, and Edgewood Properties, LLLP, as Buyer.

 

 

Exhibit 4.1

Allocation of Consideration to Individual Property

 

 

 

 

 

 

 

Exhibit 10.4(b)

Form of General Assignment and Assumption Agreement

 

GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT

 

THIS GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT is made and entered into as of __________, 20__, between IRET PROPERTIES, a North Dakota limited partnership and EVI GRAND CITIES, LLC, a North Dakota limited liability company ("Assignor"), and EDGEWOODVISTA SENIOR LIVING, INC., a North Dakota corporation,  EDGEWOOD PROPERTIES MANAGEMENT LLC, a North Dakota limited liability company, and EDGEWOOD PROPERTIES, LLLP, a North Dakota limited liability limited partnership (collectively, "Assignee").

W I T N E S S E T H:

Terms not defined herein shall have the meanings ascribed thereto in the Agreement for Sale and Purchase of Property [Edgewood Vista 2]  dated effective as of August ___, 2016 (the "Agreement"), between Assignor and Assignee.  The Agreement is hereby incorporated by reference.

That Assignor, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby conveys, grants, bargains, sells, transfers, sets over, assigns, releases, delivers and confirms to Assignee, all of Assignor's right, title and interest in and to:

Assignee hereby (i) expressly assumes the obligation for the performance of all of the obligations of Assignor under the Leases and Service Agreements in respect of the period on or after the date hereof (the "Assignee’s Obligations") and (ii) indemnifies, defends and holds harmless Assignor from and against any and all claims, actions, demands, liabilities, suits, causes of action, damages, costs or expenses (including, without limitation, attorneys' fees and disbursements) relating to the Assignee’s Obligations.

Assignor hereby (i) expressly assumes the obligation for the performance of all of the obligations of Assignor under the Leases and Service Agreements in respect of the period prior to the date hereof (the "Assignor’s Obligations") and (ii) indemnifies, defends and holds harmless Assignee from and against any and all claims, actions, demands, liabilities, suits, causes of action, damages, costs or expenses (including, without limitation, attorneys' fees and disbursements) relating to the Assignor’s Obligations. 

This General Assignment and Assumption Agreement shall inure to the benefit of all parties hereto and their respective heirs, successors and assigns.  The indemnification provisions in this General Assignment and Assumption Agreement shall supplement, not replace, any indemnification provisions contained within the Agreement.  This General Assignment and Assumption Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute but one and the same instrument.

IN WITNESS WHEREOF, the parties have executed this General Assignment and Assumption Agreement as of the day and year first above written.

ASSIGNOR:

IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP

By: IRET, Inc., a North Dakota corporation, its General Partner

 

 

By: ________________________________

Print Name:  ▇▇▇▇▇▇▇ ▇. Bosh

Print Title:  Executive Vice President

 

 

EVI Grand Cities, LLC, a North Dakota limited liability company

 

 

By: ________________________________

Print Name:  ________________________

Print Title:  _________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

[Signature pages continue on following page]

ASSIGNEE:

 

EDGEWOODVISTA SENIOR LIVING, INC., a North Dakota corporation

 

By: ________________________________

Print Name:  ________________________

Print Title:  _________________________

 

 

EDGEWOOD PROPERTIES MANAGEMENT, LLC, a North Dakota limited liability company

 

By: ________________________________

Print Name:  ________________________

Print Title:  _________________________

 

 

EDGEWOOD PROPERTIES, LLLP, a North Dakota limited liability limited partnership

 

By: ________________________________

Print Name:  ________________________

Print Title:  _________________________

 

 

 

 

Exhibit 10.4(c)

Form of Non-Foreign Certificate

 

CERTIFICATE OF NON-FOREIGN

STATUS BY ENTITY (NON-INDIVIDUAL) TRANSFEROR

 

1.Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of a U.S. real property interest must withhold tax if the transferor (seller) is a foreign person.

 

▇.▇▇ order to inform _____________________________ (hereinafter referred to as the “Buyer”) that withholding of tax is not required upon disposition of a U.S. real property interest by the seller/transferor named below (hereinafter referred to as the “Seller”), the undersigned hereby certifies and declares by means of this certificate, the following on behalf of the Seller:

 

 

 

 

3.The Seller understands that this certificate may be disclosed to the Internal Revenue Service by the Buyer and that any false statement contained in this certificate may be punished by fine, imprisonment, or both.

 

4.The Seller understands that the Buyer is relying on this certificate in determining whether withholding is required and the Buyer may have liabilities if any statement in this certificate is false.  The Seller hereby indemnifies the Buyer, and agrees to hold the Buyer harmless, from any liability or cost which the Buyer may incur as a result of: (i) the Seller’s failure to pay any U.S. Federal income tax which the Seller is required to pay under applicable U.S. law; or (ii) any false or misleading statement contained herein.

 

Under penalties of perjury, I declare that I have examined this certificate and to the best of my knowledge and belief it is true, correct and complete.  I further declare that I have authority to sign this document on behalf of the Seller.

 

EXECUTED in ▇▇▇▇ County, State of North Dakota, on ____________, 20__.

 

SELLER:

IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP

By: IRET, Inc., a North Dakota corporation, its General Partner

 

 

By: ________________________________

Print Name:  ▇▇▇▇▇▇▇ ▇. Bosh

Print Title:  Executive Vice President

 

 

EVI Grand Cities, LLC, a North Dakota limited liability company

 

 

By: ________________________________

Print Name:  ________________________

Print Title:  _________________________

 

 

 

For federal income tax purposes, the Buyer should not record this certificate with the county recorder, nor should the certificate be filed with the IRS, but it should be kept with the Buyer’s tax records relating to the subject real estate transfer.  

 

Exhibit 10.4(d)

Form of ▇▇▇▇ of Sale

 

▇▇▇▇ OF SALE

 

This ▇▇▇▇ of Sale is made and executed effective as of _________, 20__ (the “Closing Date”), by IRET PROPERTIES, a North Dakota limited partnership and EVI GRAND CITIES, LLC, a North Dakota limited liability company (collectively, “Seller”), to EDGEWOODVISTA SENIOR LIVING, INC., a North Dakota corporation, EDGEWOOD PROPERTIES MANAGEMENT LLC, a North Dakota limited liability company, and EDGEWOOD PROPERTIES, LLLP, a North Dakota limited liability limited partnership (collectively, “Buyer”).

 

RECITALS

 

A.Seller and Buyer have entered into an Agreement for Sale and Purchase of Property  [Edgewood Vista 2], dated effective as of August ___, 2016 (the “Agreement”), pursuant to which Seller has agreed to convey to Buyer one or more certain tracts of land more particularly described and defined as the “Land” in the Agreement (the “Land”), together with such other property interests as constitute the “Property” (as defined in the Agreement).

 

B.Seller desires to assign, to transfer, and to convey to Buyer, subject to the terms and conditions of this ▇▇▇▇ of Sale and of the Agreement, the “Personal Property” (as hereinafter defined).

 

NOW THEREFORE, in consideration of the receipt of good and valuable consideration in hand paid by Buyer to Seller, the receipt and sufficiency of which are hereby acknowledged by Seller, Seller does hereby grant, bargain, sell, assign, transfer, set over, convey, and deliver to Buyer, its legal representatives, its successors, and its assigns, effective as of the Closing Date, all of Seller’s right, title, and interest in and to all fixtures (other than tenant trade fixtures), equipment (excluding construction equipment and materials), apparatus, machinery, appliances, furnishings, and all other tangible personal property owned by Seller that is located on the Land and used in connection with the operation and ownership of the Land and “Improvements” (as defined in the Agreement), and all leasehold improvements located thereon (all such property not so expressly excluded being herein collectively referred to as the “Personal Property”).

IN WITNESS WHEREOF, Seller has executed this ▇▇▇▇ of Sale effective on the date first above written.

 

 

[signature page to follow]

 

SELLER:

 

IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP

By: IRET, Inc., a North Dakota corporation, its General Partner

 

 

By: ________________________________

Print Name:  ▇▇▇▇▇▇▇ ▇. Bosh

Print Title:  Executive Vice President

 

 

EVI Grand Cities, LLC, a North Dakota limited liability company

 

 

By: ________________________________

Print Name:  ________________________

Print Title:  _________________________