exv10w2



 







Exhibit 10.2




AGREEMENT OF SALE AND PURCHASE




ORTHOPAEDICS INDIANAPOLIS SURGICAL ASSOCIATES, LLC




An Indiana liability company




as the Seller




and




HEALTHCARE REALTY TRUST INCORPORATED




A Maryland corporation




as the Purchaser




For the Sale and Purchase of:




	 	 	 
	The OrthoIndy Medical Office Building

8450 Northwest Boulevard

Indianapolis, Indiana 46278
	 	The Indiana Orthopaedic Hospital Building

8400 Northwest Boulevard

Indianapolis, Indiana 46278






June 22, 2006




 









 





Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	TABLE OF CONTENTS

	 
	 	 	 	 	 	 
	ARTICLE I
	 	Definitions	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	Agreement to Sell and Purchase	 	 	9	 
	 
	 	 	 	 	 	 
	2.1
	 	Agreement to Sell and Purchase	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	Purchase Price and Earnest Money	 	 	9	 
	 
	 	 	 	 	 	 
	3.1
	 	Payment of Purchase Price	 	 	9	 
	3.2
	 	Earnest Money	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	Items to be Furnished to Purchaser by Seller	 	 	10	 
	 
	 	 	 	 	 	 
	4.1
	 	Due Diligence Materials	 	 	10	 
	4.2
	 	Due Diligence Review	 	 	10	 
	4.3
	 	Permitted Exceptions	 	 	11	 
	4.4
	 	Service Contracts	 	 	11	 
	4.5
	 	Additional Exceptions	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	Representations, Warranties, Covenants and Agreements	 	 	12	 
	 
	 	 	 	 	 	 
	5.1
	 	Representations and Warranties of Seller	 	 	12	 
	5.2
	 	Covenants and Agreements of Seller	 	 	14	 
	5.3
	 	Representations and Warranties of Purchaser	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	Conditions to the Seller’s and Purchaser’s Obligations	 	 	15	 
	 
	 	 	 	 	 	 
	6.1
	 	Conditions to the Purchaser’s Obligations	 	 	15	 
	6.2
	 	Failure of Conditions to Purchaser’s Obligations	 	 	16	 
	6.3
	 	Condition to the Seller’s Obligations	 	 	17	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	Provisions with Respect to the Closing	 	 	18	 
	 
	 	 	 	 	 	 
	7.1
	 	Seller’s Closing Obligations	 	 	18	 
	7.2
	 	Purchaser’s Closing Obligations	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	Expenses of Closing	 	 	19	 
	 
	 	 	 	 	 	 
	8.1
	 	Adjustments	 	 	19	 
	8.2
	 	Closing Costs	 	 	19	 
	8.3
	 	Commissions/Broker’s Fees	 	 	20	 






 









 






Table
of Contents
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE IX
	 	Default and Remedies	 	 	22	 
	 
	 	 	 	 	 	 
	9.1
	 	Seller’s Default; Purchaser’s Remedies	 	 	22	 
	9.2
	 	Purchaser’s Default; Seller’s Remedies	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	Miscellaneous	 	 	23	 
	 
	 	 	 	 	 	 
	10.1
	 	Survival	 	 	23	 
	10.2
	 	Right of Assignment	 	 	23	 
	10.3
	 	Notices	 	 	24	 
	10.4
	 	Entire Agreement; Modifications	 	 	25	 
	10.5
	 	Applicable Law; Venue	 	 	25	 
	10.6
	 	Captions	 	 	25	 
	10.7
	 	Binding Effect	 	 	25	 
	10.8
	 	Time is of the Essence	 	 	25	 
	10.9
	 	Waiver of Conditions	 	 	26	 
	10.10
	 	Severability	 	 	26	 
	10.11
	 	No Recording	 	 	26	 
	10.12
	 	Attorneys’ Fees	 	 	26	 
	10.13
	 	Independent Consideration	 	 	26	 
	10.14
	 	Escrow Agent	 	 	26	 
	10.15
	 	Third-Party Beneficiaries	 	 	27	 






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AGREEMENT OF SALE AND PURCHASE




     THIS AGREEMENT OF SALE AND PURCHASE (this “Agreement”) is made and entered into by and
between ORTHOPAEDICS INDIANAPOLIS SURGICAL ASSOCIATES, L.L.C., an Indiana liability company
(“Seller”), and HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation
(“Purchaser”). Seller and Purchaser are sometimes collectively referred to herein as the
“Parties”.



Recitals




     A. Seller is the owner of the Property (as hereinafter defined).



     B. Seller desires to sell the Property to Purchaser, and Purchaser desires to purchase the
Property from Seller on the terms and conditions contained in this Agreement.



     NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) (“Independent
Consideration”), the mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:



ARTICLE I.

Definitions




     In addition to any other terms defined in the body of this Agreement, as used herein
(including any Exhibits attached hereto), the following terms shall have the meanings indicated in
this Article I:



     “Affidavit” shall have the meaning ascribed to such term in Section 4.3 below.



     “Bill of Sale” shall mean a Bill of Sale and Assignment in the form attached as
Exhibit B hereto, and sufficient to transfer the Personal Property to Purchaser.



     “Business Day(s)” shall mean calendar days other than Saturdays, Sundays and legal
holidays.



     “Certificate of Non-Foreign Status” shall mean a certificate dated as of the Closing
Date, addressed to Purchaser and duly executed by Seller, in the form of Exhibit C attached
hereto.



     “Closing” shall mean the consummation of the Transaction as provided for herein, to be
conducted in escrow by the Title Company, or at such location as the Parties may mutually agree in
writing.



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     “Closing Certificate” shall mean a certificate in the form of Exhibit D
wherein Seller shall represent that the representations and warranties of Seller contained in
Article V of this Agreement are true and correct without exception as of the Closing Date
as if made on and as of the Closing Date.



     “Closing Date” shall mean the actual day on which the Transaction is closed with the
transfer of title to the Property to Purchaser. The Parties agree that the Closing Date shall be
not later than five (5) days following the expiration of the Due Diligence Period, unless extended
as specifically provided in this Agreement.



     “Closing Statement” shall have the meaning ascribed to such term in Section
7.1 below.



     “Deed” shall mean a deed containing special warranties of title by Seller in the form
of Exhibit E, executed by Seller, as grantor, in favor of Purchaser (or its permitted
assignee) as grantee, conveying the Land and Improvements to Purchaser, subject only to the
Permitted Exceptions.



     “Due Diligence Materials” shall have the meaning ascribed to such term in Section
4.1 hereof.



     “Due Diligence Period” shall mean that period of time beginning on the Effective Date
and ending on the 28th calendar day thereafter (and subject to extension as described in
Section 4.1 below).



     “Earnest Money” shall mean the sum of $2,500,000.00.



     “Effective Date” shall mean the later of the two (2) dates on which this Agreement is
signed and all changes initialed by the Parties, as indicated by their signatures below.



     “Engineering Documents” shall mean all site plans, soil and substrata studies,
architectural drawings, plans and specifications, engineering plans and studies, floor plans,
landscape plans, and other plans and studies, if any, that relate to the Property which are
currently in the possession of Seller.



     “Exception Documents” shall mean true, correct and legible copies of each document
listed as an exception to title on the Title Commitment.



     “Existing IOH LLC Lease” shall mean the 100% net lease in place as of the Effective
Date between Seller, as landlord, and IOH LLC, as tenant, with respect to the Hospital and related
Improvements.



     “Existing OrthoIndy Lease” shall mean the 100% net lease in place as of the Effective



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Date between Seller, as landlord, and OrthoIndy, as tenant, with respect to the MOB and
related Improvements.



     “Existing Leases” shall mean the Existing IOH LLC Lease and Existing OrthoIndy Lease,
collectively.



     “Fixtures” shall mean all permanently affixed equipment, machinery, fixtures, and
other items of real property, including all components thereof, now and hereafter located in, on or
used in connection with, and permanently affixed to or incorporated into the Improvements or on the
Land, including, without limitation, all furnaces, boilers, heaters, electrical equipment, heating,
plumbing, lighting, ventilating, refrigerating, incineration, air and water pollution control,
waste disposal, air-cooling and air-conditioning systems and apparatus, sprinkler systems and fire
and theft protection equipment, and built-in vacuum, cable transmission, oxygen and similar
systems, all of which, to the greatest extent permitted by law, are hereby deemed by the parties
hereto to constitute real estate, together with all replacements, modifications, alterations and
additions thereto. Fixtures shall not include any trade fixtures owned or leased from third
parties by OrthoIndy or IOH LLC.



     “Hazardous Materials” shall mean any substance, including without limitation, asbestos
or any substance containing asbestos and deemed hazardous under any Hazardous Materials Law, the
group of organic compounds known as polychlorinated biphenyls, flammable explosives, radioactive
materials, infectious wastes, biomedical and medical wastes, chemicals known to cause cancer or
reproductive toxicity, pollutants, effluents, contaminants, emissions or related materials and any
items included in the definition of hazardous or toxic wastes, materials or substances under any
Hazardous Materials Law.



     “Hazardous Materials Law” shall mean any local, state or federal law relating to
environmental conditions and industrial hygiene, including, without limitation, the Resource
Conservation and Recovery Act of 1976 (“RCRA”), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (“CERCLA”), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (“SARA”), the Hazardous Materials Transportation Act, the Federal Water
Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act,
the Safe Drinking Water Act, and all similar federal, state and local environmental statutes,
ordinances and the regulations, orders, or decrees now or hereafter promulgated thereunder.



     “Hospital” shall mean the approximately 117,525 square foot space that Indiana
Orthopaedic Hospital occupies located on the Land.



     “IOH LLC” shall mean Indiana Orthopaedic Hospital, LLC.



     “Improvements” shall mean (a) the Hospital, and (b) the MOB, together with all other



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improvements, structures and Fixtures located on the Land, including, without limitation,
landscaping, parking lots and structures, roads, drainage facilities and all above ground and
underground utility structures, equipment systems and other infrastructure.



     “Independent Consideration” has the meaning set forth in the preamble.



     “Intangible Property” means all Permits and other intangible property or any interest
therein now or on the Closing Date owned or held by Seller in connection with the Land and/or the
Improvements, or with the use thereof, including trade names, water rights and reservations, zoning
rights, business licenses and warranties (including those relating to construction or fabrication)
related to the Land, the Improvements, or any part thereof; provided, however, “Intangible
Property” shall not include the general corporate trademarks, service marks, logos or insignia or
books and records of Seller, and accounts receivable.



     “Land” shall mean the real property described Exhibit A hereto.



     “Laws” means all federal, state and local laws, moratoria, initiatives, referenda,
ordinances, rules, regulations, standards, orders and other governmental requirements, including,
without limitation, those relating to the environment, zoning, land use, planning, health and
safety, disabled or handicapped persons.



     “MOB” shall mean the approximately 58,474 medical office building located on the Land.



     “New IOH LLC Master Lease” shall mean the Master Lease Agreement entered into between
Purchaser, as landlord, and IOH LLC, as tenant, on the Effective Date for the lease of the Hospital
and related Improvements from and after the Closing, the performance of which by each party is
contingent only upon the occurrence of the Closing.



     “New OrthoIndy Master Lease” shall mean the Master Lease Agreement entered into
between Purchaser, as landlord, and OrthoIndy, as tenant, on the Effective Date for the lease of
the MOB and related Improvements from and after the Closing, the performance of which by each party
is contingent only upon the occurrence of the Closing.



     “Objection Notice” shall have the meaning ascribed to such term in Section 4.2
below.



     “OrthoIndy” shall mean Orthopaedics-Indianapolis P.C.



     “Permits” shall mean all permits, licenses, approvals, entitlements and other
governmental, quasi-governmental and non-governmental authorizations including, without limitation,
certificates of occupancy, required in connection with the ownership, planning, development,
construction, use, operation or maintenance of the Land or the Improvements. As



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used herein, “quasi-governmental” shall include the providers of all utility services to the
Land or the Improvements.



     “Permitted Exceptions” shall have the meaning ascribed to such term in Section
4.3.



     “Personal Property” shall mean, collectively, the Intangible Property, Warranties,
Engineering Documents, and Tangible Personal Property.



     “Phase I” shall mean the Phase I Environmental Site Assessment performed by Sagamore
Environmental Services, Inc. dated May 27, 2003, pertaining to the MOB.



     “Property” shall mean, collectively, (a) the Land and the Improvements, together with
all appurtenant interests, and (b) the Personal Property. As used in the foregoing, “appurtenant
interests” shall mean those interests that permissibly pass by operation of law with the conveyance
by Seller of the Land and Improvements.



     “Property Documents” shall mean (i) 2005 year-to-date budget Property level financial
statement detail, (ii) 2003 — 2005 year-to-date OrthoIndy financial statement detail, (iii) 2005
year-to-date financial statement detail and five (5) year proforma for IOH LLC, and (iv) the real
estate tax bills for the Land and Improvements for 2005.



     “Purchase Price” shall mean $65,000,000.00, inclusive of the Earnest Money, and which
shall be adjusted at Closing pursuant Article VIII of this Agreement.



     “Service Contracts” shall mean all service contracts or other agreement or instrument
affecting all or a portion of the Property, a complete list of which is attached hereto as
Exhibit F.



     “Subleases” shall mean all subleases and other occupancy arrangements affecting the
Property or any portion thereof.



     “Survey” shall mean an ALTA/ASCM Land Survey (a) prepared by Civil Design, LLP and
updated not earlier than twenty (20) days prior to the Effective Date, (b) certified to Purchaser
and its designee, (c) keyed to the Title Commitment, and (d) meeting the “Minimum Standard Detail
Requirements for ALTA/ASCM Land Title Surveys” as adopted by the American Land Title Association
and American Congress on Surveying and Mapping in 1992 and which shall include Items 1, 2, 3, 4, 6,
7(a) and (b), 8, 9, 10, 11, and 13 of Table A thereof.



     “Tangible Personal Property” shall mean all furnishings, equipment, tools, machinery,
fixtures, appliances and all other tangible personal property owned by Seller and located on or
about the Land or Improvements or used in connection with the operation thereof, a description of
which shall be attached as Exhibit B to the Bill of Sale. Tangible Personal Property shall not
include any personal property or trade fixtures owned by or leased from any third parties by



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OrthoIndy or IOH LLC.



     “Termination Notice” shall have the meaning ascribed to such term in Section
4.2 below.



     “Termination of Existing IOH LLC Lease” shall mean the Termination of Lease Agreement
between Seller, as landlord, and IOH LLC, as tenant, of the Existing IOH LLC Lease, which shall be
effective upon the Closing of the Transaction and shall provide that IOH LLC shall have no further
duties, obligations, or liabilities under the Existing IOH LLC Lease from and after the termination
of the same.



     “Termination of Existing OrthoIndy Lease” shall mean the Termination of Lease
Agreement between Seller, as landlord, and OrthoIndy, as tenant, of the Existing OrthoIndy Lease,
which shall be effective upon the Closing of the Transaction and shall provide that OrthoIndy shall
have no further duties, obligations, or liabilities under the Existing OrthoIndy Lease from and
after the termination of the same.



     “Title Commitment” shall mean a current commitment for title insurance (a) issued by
the Title Company, (b) in the amount of the Purchase Price, (c) showing Purchaser or its designee
as the proposed insured, and (d) dated not earlier than five (5) days prior to the Effective Date
and down-dated within five (5) days prior to the end of the Due Diligence Period, pursuant to the
terms of which the Title Company shall commit to issue the Title Policy to Purchaser in accordance
with the provisions of this Agreement, and reflecting all matters which would be listed as
exceptions to coverage on the Title Policy.



     “Title Company” shall mean Chicago Title Insurance Corporation (Attn: Michael J.
Sibbing).



     “Title Policy” shall mean a title policy issued by the Title Company in accordance
with the Title Commitment, subject only to the Permitted Exceptions, insuring Purchaser’s fee
ownership interest in the Land and Improvements, with liability in the amount of the Purchase
Price, dated as of the Closing Date.



     “Transaction” shall mean the purchase and sale transaction contemplated by this
Agreement.



     “Warranties” shall mean all warranties, representations and similar agreements
pertaining to the Property.



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ARTICLE II.

Agreement to Sell and Purchase




     2.1 Agreement to Sell and Purchase. On the Closing Date, Seller shall, in
consideration for the Purchase Price and in accordance with the terms of this Agreement, sell and
deliver to Purchaser all of Seller’s rights, title and interest in and to the Property, and
Purchaser shall purchase the same.



ARTICLE III.

Purchase Price and Earnest Money




     3.1 Payment of Purchase Price. The Purchase Price shall be paid by Purchaser at the
Closing via wire transfer in United States currency to the Title Company to be held in escrow for
the benefit of Seller, subject to any adjustments and pro-rations as described in Article VIII
below.



     3.2 Earnest Money. Within three (3) Business Days following the Effective Date,
Purchaser shall deliver the Earnest Money to the Title Company. The disposition of the Earnest
Money shall be governed by the terms of this Agreement.



9









 





ARTICLE IV.

Items to be Furnished to Purchaser by Seller




     4.1 Due Diligence Materials. Seller has, prior to the Effective Date, provided the
Property Documents, the Service Contracts, and the Phase I to Purchaser. Within five (5) Business
Days after the Effective Date, Seller shall deliver (or cause IOH LLC and/or OrthoIndy to deliver,
as the case may be) to Purchaser for its review the following:




     (a) True, correct, complete and legible copies of all Warranties, Permits, and
Engineering Documents;




     (b) True, correct, complete and legible copies of tax statements or assessments for all
personal property taxes assessed against the Personal Property for the current and the two
(2) prior calendar years;




     (c) A complete, itemized and detailed inventory of the Tangible Personal Property;




     (d) True, correct, complete and legible copies of any and all litigation files with
respect to any pending litigation and claim files for any claims made or threatened, the
outcome of which might have an adverse effect on the Property or the use and operation of
the Property;




     (e) True, correct, and complete and legible copies of the Subleases and any and all
agreements or written understandings with respect to the Property or any portion thereof not
already provided;




     (f) The Title Commitment, together with the Exception Documents; and




     (g) The Survey.



     The foregoing, together with the Property Documents and the Phase I, are collectively referred
to in this Agreement as the “Due Diligence Materials”.



     In the event Seller fails to deliver the Due Diligence Materials or any portion thereof to
Purchaser within the five (5) Business Day time period set forth above, the Due Diligence Period
shall automatically be extended on a day-for-day basis by the number of days which elapse between
the expiration of the five (5) Business Day time period and the date upon which Purchaser receives
the last of the Due Diligence Materials.



     4.2 Due Diligence Review. During the Due Diligence Period, Purchaser shall be
entitled to review the Due Diligence Materials, and to examine, inspect and investigate the



10









 







Property to determine whether it is acceptable to Purchaser. Seller shall grant Purchaser and
those acting by, through, or under Purchaser full and complete access to the books and records of
Seller with respect to the Property, and, provided the Closing occurs, permit Purchaser to retain
copies of such books records. Purchaser and those acting by, through, and under Purchaser, shall
be entitled to make all inspections or investigations desired by Purchaser with respect to the
Property and shall have complete physical access thereto, provided (1) Purchaser and those acting
by, through, and under Purchaser shall schedule any visits to, and inspections of, the Property at
least one day in advance with Seller, and (2) such access shall not unreasonably interfere with IOH
LLC’s or OrthoIndy’s operations at the Property. If Purchaser shall, for any reason in Purchaser’s
sole discretion, disapprove or be dissatisfied with any aspect of such information, or the
Property, then Purchaser shall be entitled to terminate this Agreement by delivering a
Termination Notice (herein so called) to Seller at or before 5:00 p.m. CST on the last day
of the Due Diligence Period. If Purchaser’s written termination is timely made, then the Earnest
Money shall be immediately returned to Purchaser and thereafter neither Party shall have any
further obligations or liabilities to the other hereunder. If Purchaser fails to timely deliver
the Termination Notice, then, except as otherwise provided herein, the Earnest Money shall
thereafter be non-refundable, but shall be credited to the Purchase Price at Closing, and
Purchaser’s right to terminate this Agreement pursuant to this Section 4.2 shall be of no
further force or effect.



     4.3 Permitted Exceptions. The term “Permitted Exceptions” shall mean: (A) the
matters shown as exceptions in the Title Commitment as of the expiration of the Due Diligence
Period and not objected to by Purchaser as described above, or that Purchaser has otherwise agreed
to accept; (B) those items shown on the Survey as of the expiration of the Due Diligence Period and
not objected to by Purchaser as described above, or that Purchaser has otherwise agreed to accept;
(C) Laws existing with respect to the Property; (E) real estate taxes and assessments for the
current and future years, which are not yet due and payable with respect to the Property or any
portion thereof, and (F) the New IOH LLC Master Lease and the New OrthoIndy Master Lease. The term
“Permitted Exceptions” shall expressly not include any of the so-called “standard exceptions” or
“pre-printed” exceptions which are subject to deletion by the Title Company upon receipt of a
standard owner’s affidavit, which Seller shall provide at Closing (the “Affidavit”).
Without limiting the foregoing, the Affidavit shall be in such a form so as to, among other things,
cause the Title Company to omit from the Title Policy all exceptions for unfiled mechanic’s,
materialmen’s or similar liens and to provide “gap” coverage insuring the period from the effective
date of the Title Commitment through the date and time of recording of the Deed.



     4.4 Service Contracts. At or prior to the Closing, Seller shall cause each of the
Service Contracts to either be terminated or assigned to IOH LLC or OrthoIndy, as appropriate.
Seller shall be responsible for any termination fee or other costs associated with such termination
or assignment. Seller shall indemnify, protect, defend and hold Purchaser harmless from and



11









 







against all claims, damages, losses, suits, proceedings, costs and expenses (including, but
not limited to, reasonable attorneys’ fees) arising or accruing under the Service Contracts (or any
of them), whether prior to or after the Closing Date.



     4.5 Additional Exceptions. In the event that at any time the Title Commitment,
Exception Documents, or Survey are modified prior to Closing (other than the deletion or
elimination of any item requested by Purchaser), Purchaser shall have the right to review and
approve or disapprove any such modification and the Due Diligence Period as to such modification
shall be for a period of five (5) Business Days following the date of Purchaser’s receipt of such
modification, and the date of Closing, and all other time periods referred to this Agreement shall
be extended accordingly.



ARTICLE V.

Representations, Warranties, Covenants and Agreements




     5.1 Representations and Warranties of Seller. Seller represents and warrants to
Purchaser as follows:




     (a) Seller has good, marketable, and insurable fee simple title to the Land and
Improvements, and no third party holds any right of first offer, right of first refusal or
other restrictions on Seller’s rights of transfer, nor does there exist any other form of
transfer restriction with respect to the Property.




     (b) No party has been granted any license, lease or other right relating to the use or
possession of the Property, except for IOH LLC and OrthoIndy pursuant to the Existing Leases
and those parties claiming under them pursuant to the Subleases.




     (c) As of the Closing, no brokerage or leasing commissions or other compensation will
be due or payable to any person, firm, corporation or other entity with respect to, or on
account of, the Existing Leases.




     (d) No pending condemnation, eminent domain, assessment or similar proceeding or charge
affecting the Property or any portion thereof exists. Seller has not heretofore received
any notice, and has no knowledge, that any such proceeding or charge is contemplated.
Seller has not received any notice of a proposed increase in the assessed valuation of the
Property.




     (e) Seller has the authority to execute and enter into this Agreement, and shall have,
as of Closing, full right, power and authority to consummate the Transaction. The execution
by Seller of this Agreement and the consummation by Seller of the Transaction does not, and
at the Closing will not, result in any breach of any of the terms or provisions of or
constitute a default or a condition which upon the giving of notice or



12









 







passage of time or both would ripen into a default under any indenture, agreement,
instrument or obligation to which Seller is a party.




     (f) No work has been performed or is in progress at the Property, and no materials will
have been delivered to the Property that might provide the basis for a mechanic’s,
materialmen’s or other lien against the Property or any portion thereof, or amounts due for
such work and material shall have been paid or discharged to Purchaser’s satisfaction as of
Closing.




     (g) There are no actions, suits or proceedings pending or threatened against or
affecting the Property or any portion thereof, either of the Existing Leases or relating to
or arising out of the ownership or operation of the Property, or by any federal, state,
county or municipal department, commission, board, bureau or agency or other governmental
instrumentality, other than those disclosed to Purchaser pursuant to Section 4.1.
All judicial proceedings concerning the Property will be finally dismissed and terminated
prior to the Closing.




     (h) (1) No Hazardous Materials have been installed, used, generated, manufactured,
treated, handled, refined, produced, processed, stored or disposed of, or otherwise present
in, on or under the Property, except such material used in the operation of the Property and
medical businesses of OrthoIndy and IOH LLC, all in accordance with applicable law and which
have been disclosed to Purchaser, (2) no activity has been undertaken on the Property which
would cause (i) the Property to become a hazardous waste treatment, storage or disposal
facility within the meaning of, or otherwise bring the Property within the ambit of any
Hazardous Material Law, (ii) a release or threatened release of Hazardous Material from the
Property within the meaning of, or otherwise bring the Property within the ambit of any
Hazardous Material Law or (iii) the discharge of Hazardous Material into any watercourse,
body of surface or subsurface water or wetland, or the discharge into the atmosphere of any
Hazardous Material which would require a permit under any Hazardous Material Law, (3) no
activity has been undertaken with respect to the Property which would cause a violation or
support a claim under any Hazardous Material Law, (4) no investigation, administrative
order, litigation or settlement with respect to any Hazardous Material is threatened or in
existence with respect to the Property, (5) no notice has been served on Seller, IOH LLC or
OrthoIndy from any entity, governmental body or individual claiming any violation of any
Hazardous Material Law, or requiring compliance with any Hazardous Material Law, or
demanding payment or contribution for environmental damage or injury to natural resources,
and (6) Seller has not obtained and is not required to obtain, and Seller has no knowledge
of any reason Purchaser will be required to obtain, any permits, licenses, or similar
authorizations to occupy, operate or use the Improvements or any part of the Property by
reason of any Hazardous Material Law.



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     (i) The sale of the Property as contemplated by this Agreement will not cause a change
in any licensing or similar requirements affecting the use or operations of the Property,
violate any Laws with respect to the use or operations at the Property, or necessitate the
filing with any governmental or quasi-governmental authority of any notice regarding a
change in ownership of the Property.




     (j) There are no other agreements or understandings (whether oral or written) with
respect to the Property or any portion thereof, other than those delivered (or to be
delivered) pursuant to Section 4.1 above and the Existing Leases.




     (k) The Property is free of violations of Laws; and the Improvements and their use
comply with all Laws, except that certain structural issues exist that are disclosed in the
Building Condition Report prepared by Breland Group, LLC and issued to Purchaser, and which
issues are being resolved.




     (l) The Property Documents are true, complete and accurate in all material respects.



     To the extent circumstances first arise after the Effective Date but before Closing which
would render one or more of the above representations and warranties no longer materially true and
correct, Seller shall promptly (but no later than at Closing) deliver written notice to Purchaser
of such changed circumstances. In such event, Purchaser may elect to (i) accept the Property
regardless of such change, and consummate the purchase and sale of the Property, or (ii) terminate
this Agreement by giving Seller written notice thereof within ten (10) Business Days after
Purchaser’s receipt of Seller’s notice of any such change. The Closing Date shall be postponed, if
necessary, to afford Purchaser the benefit of the full ten (10) Business Day period. If Seller has
not received any such notice of termination from Purchaser within the ten (10) Business Day period,
Purchaser shall be deemed to have elected option (i). If this Agreement is terminated in
accordance with this Section, the Earnest Money shall be refunded to Purchaser, this Agreement
shall terminate, and neither Party shall have any further duty or obligation hereunder. If
Purchaser elects option (i), then such representations and warranties shall be deemed to have been
amended or modified as set forth in Seller’s notice.



     5.2 Covenants and Agreements of Seller. Seller covenants and agrees with Purchaser,
from the Effective Date until the Closing or earlier termination of this Agreement:




     (a) Seller shall: (i) operate the Property in the ordinary course of business
consistent with past practices; (ii) enter into no new agreements or understanding (whether
oral or written) with respect to the Property except as shall be approved in writing by
Purchaser; and (iii) fully maintain (or cause IOH LLC and/or OrthoIndy, as



14









 







the case may be, to fully maintain) the Property in at least as good condition and
repair as existed on the Effective Date.




     (b) Seller shall cause to be maintained in full force property insurance upon the
Improvements and Tangible Personal Property and general liability insurance with respect to
damage or injury to persons or property occurring on or relating to operation of the
Property in at least such amounts as are maintained by Seller on the Effective Date.




     (c) Seller shall pay (or cause IOH LLC and/or OrthoIndy, as the case may be, to pay)
when due all bills and expenses of the Property.




     (d) Seller shall not, without the prior written consent of Purchaser, create or
voluntarily permit to be created any liens, easements or other conditions affecting any
portion of the Property or the uses thereof.



     5.3 Representations and Warranties of Purchaser. Purchaser represents and warrants to
Seller that:




     (a) Purchaser has duly and validly authorized and executed this Agreement, and has full
right, power and authority to enter into this Agreement and to consummate the Transaction,
and the joinder of no person or entity will be necessary to purchase the Property at
Closing;




     (b) The execution by Purchaser of this Agreement and the consummation by Purchaser or
its assigns of the Transaction do not, and at the Closing will not, result in any breach of
any of the terms or provisions of or constitute a default or a condition which upon the
giving of notice or passage of time or both would ripen into a default under any indenture,
agreement, instrument or obligation to which Purchaser is a party.



ARTICLE VI.

Conditions to the Seller’s and Purchaser’s Obligations




     6.1 Conditions to the Purchaser’s Obligations. The obligation of Purchaser to
purchase the Property from Seller is subject to the satisfaction of each of the following
conditions within the time periods set forth in each condition, or, if no such time period is set
forth, at the Closing:




     (a) The representations and warranties of Seller set forth in this Agreement shall be
true, complete and correct, or shall be deemed modified as provided in Section 5.1
above.



15









 






     (b) Purchaser shall have received the New IOH LLC Master Lease executed by IOH LLC, and
IOH LLC shall remain irrevocably committed to perform its obligations under the New IOH LLC
Master Lease (contingent only upon the Closing of the Transaction) and shall not have
repudiated the same.




     (c) Purchaser shall have received the New OrthoIndy Master Lease executed by OrthoIndy
and OrthoIndy shall remain irrevocably committed to perform its obligations under the New
OrthoIndy Master Lease (contingent only upon the Closing of the Transaction) and shall not
have repudiated the same.




     (d) Purchaser shall have received an Assignment of Rents and Leases executed by IOH LLC
in the form called for in the New IOH LLC Master Lease, and IOH LLC shall remain irrevocably
committed to perform its obligations under such Assignment of Rents and Leases (contingent
only upon the Closing of the Transaction) and shall not have repudiated the same.




     (e) Purchaser shall have received an Assignment of Rents and Leases executed by
OrthoIndy in the form called for in the New OrthoIndy Master Lease, and OrthoIndy shall
remain irrevocably committed to perform its obligations under such Assignment of Rents and
Leases (contingent only upon the Closing of the Transaction) and shall not have repudiated
the same.




     (f) Seller shall have timely delivered, performed, observed and complied with, all of
the items, instruments, documents, covenants, agreements and conditions required by this
Agreement to be delivered, performed, observed and complied with by it.




     (g) The Title Company shall remain committed to issue the Title Policy in the form of
the Title Commitment as it existed as of the expiration of the Due Diligence Period.




     (h) Purchaser shall have received an updated Phase I (and, if necessary in the opinion
of Purchaser, a Phase II Environmental Report) covering the Land and Improvements, which
shall be addressed to Purchaser and its designee, and which must be in a form and content
acceptable to Purchaser.




     (i) No part of the Property shall have been damaged or destroyed.




     (j) No part of the Property shall have been condemned or be under threat of
condemnation.



     6.2 Failure of Conditions to Purchaser’s Obligations. In the event any one or more of
the conditions to Purchaser’s obligations are not satisfied in whole or in part prior to the



16









 







Closing, and provided such event is not waived by Purchaser as contemplated by this Agreement,
Purchaser, at Purchaser’s option, shall be entitled to: (a) terminate this Agreement by giving
immediate written notice thereto to Seller on or prior to the Closing Date, upon which Purchaser
shall receive a prompt refund of the Earnest Money, and the Parties shall have no further
obligations or liabilities hereunder, or (b) proceed to Closing with rights of specific
performance.



     6.3 Condition to the Seller’s Obligations. The obligations of Seller to sell the
Property is subject to the satisfaction, at all times prior to and as of the Closing, of each of
the following:




     (a) All of the representations and warranties of Purchaser set forth in this Agreement
shall be true, complete and accurate.




     (b) Purchaser shall have timely delivered, performed, observed and complied with, all
of the items, instruments, documents, covenants, agreements and conditions required by this
Agreement to be delivered, performed, observed, and complied with by it.




     (c) Purchaser and OrthoIndy have executed the New OrthoIndy Master Lease.




     (d) Purchaser and IOH LLC have executed the New IOH LLC Master Lease.



17









 





ARTICLE VII.

Provisions with Respect to the Closing




     7.1 Seller’s Closing Obligations. At the Closing, Seller shall execute, acknowledge
(where applicable) and deliver to the Title Company for recording and/or delivery to Purchaser, the
following:




     (a) The Deed;




     (b) The fully executed Termination of Existing IOH LLC Lease;




     (c) The fully executed Termination of Existing OrthoIndy Lease;




     (d) The Certificate of Non-Foreign Status;




     (e) The Closing Certificate;




     (f) The Bill of Sale;




     (g) The Affidavit;




     (h) A closing statement itemizing the Purchase Price and all adjustments thereto as
provided herein (the “Closing Statement”);




     (i) Duplicates of keys, combinations, codes and security information to all locks on
the Property in the possession of Seller;




     (j) Evidence of the existence, organization and authority of Seller and of the
authority of the persons executing documents on behalf of Seller reasonable satisfactory to
Purchaser and the Title Company;




     (k) Evidence reasonably satisfactory to Purchaser that each of the Service Contracts
has either been terminated or assigned to either IOH LLC or OrthoIndy, as appropriate;




     (l) The Title Policy, or, in the alternative, a fully “marked up” Title Commitment
signed by an authorized officer of the Title Company, showing Purchaser as the owner of the
Land and Improvements, subject only to the Permitted Exceptions and irrevocably obligating
the Title Company to issue the Title Policy in the form of such fully “marked up” Title
Commitment; and




     (m) Such other instruments or documents as are necessary or reasonably required by
Purchaser or the Title Company to consummate the transaction contemplated



18









 







hereby, provided, however that no such additional instrument or document may expand any
obligation, covenant, representation or warranty of Seller or result in any new or
additional obligation, covenant, representation or warranty of Seller under this Agreement
beyond those expressly set forth in this Agreement.



     7.2 Purchaser’s Closing Obligations. At the Closing, Purchaser shall execute,
acknowledge (where applicable) and deliver to the Title Company for delivery to Seller:




     (a) The Closing Statement;




     (b) Wired funds for the benefit of Seller representing the cash portion of Purchase
Price due in accordance with Section 3.1 and other applicable provisions herein;




     (c) A Secretary’s Certificate evidencing the authority of the persons executing
documents on behalf of Purchaser, which shall be in a form reasonable satisfactory to Seller
and the Title Company; and




     (d) Such other instruments or documents as are necessary or reasonably required by
Seller or the Title Company to consummate the transaction contemplated hereby, provided,
however that no such additional instrument or document may expand any obligation, covenant,
representation or warranty of Purchaser or result in any new or additional obligation,
covenant, representation or warranty of Purchaser under this Agreement beyond those
expressly set forth in this Agreement.



ARTICLE VIII.

Expenses of Closing




     8.1 Adjustments. Taxes, assessments, water/sewer charges, gas, electric, telephone or
other utilities, and other operating expenses, if any, with respect to the Property and other
customary proratable items shall NOT be prorated at the Closing (and the Purchase Price shall not
be adjusted therefor), as all such items are the responsibility of IOH LLC and/or OrthoIndy
pursuant to the Existing Leases, and shall continue to be the responsibility of IOH LLC and
OrthoIndy pursuant to the New IOH LLC Master Lease and the New OrthoIndy Master Lease,
respectively.



     8.2 Closing Costs.




     (a) Seller shall pay:




     (i) all title examination fees, the costs of the Title Commitment and premiums
for the Title Policy;



19









 






     (ii) the costs of the Survey and any updates thereto;




     (iii) the costs of the Phase I and the updates thereto;




     (iv) Seller’s legal, accounting and other professional fees and expenses, and
the cost of all certificates, instruments, documents and papers required to be
delivered, or to cause to be delivered, by Seller hereunder;




     (v) the charges for or in connection with the recording and/or filing of any
instrument or document provided herein or contemplated by this Agreement or any
agreement or document described or referred to herein; and




     (vi) any and all state, municipal, local or other documentary, transfer taxes,
surtaxes or similar taxes payable in connection with the delivery or recording of
any title transfer instrument or document by Seller provided in or contemplated by
this Agreement.




     (vii) all costs, expenses, and fees, if any, associated with the payoff of any
existing loans affecting the Property or any part thereof.



     (b) Purchaser shall pay any costs incurred with respect to its inspection of the
Property, any costs related to any additional endorsements to the Title Policy requested by
Purchaser, and its legal, accounting and other professional fees and expenses.



     Seller and Purchaser shall evenly split any and all charges by the Title Company for escrow
services for the Earnest Money and disbursements at Closing. All other costs and expenses shall be
paid by the party for whose benefit such costs or expenses are incurred.



     8.3 Commissions/Broker’s Fees. Seller covenants and represents that it has not dealt
with any real estate or other broker, finder, agent or other person with respect to the
Transaction, who may be entitled to any commission or fee related to same, other than Bremner
Healthcare and Cain Brothers RE LLC; and agrees to indemnify, defend and hold Purchaser harmless
from any costs and expenses (including, without any limitation, reasonable attorneys’ fees), if
any, which Purchaser may incur as a result of (a) Seller’s breach of the foregoing representation
and warranty, or (b) any claim by any real estate or other broker, finder, agent or other person
claiming by, through, or under Seller. Seller shall pay Bremner Healthcare and Cain Brothers RE
LLC all compensation to which it may be entitled in connection with the Transaction pursuant to a
separate agreement. Purchaser covenants and represents that it has not dealt with any real estate
or other broker, finder, agent or other person with respect to the Transaction, who may be entitled
to any commission or fee related to same; and agrees to indemnify, defend and hold Seller harmless
from any costs and expenses (including, without any limitation, reasonable attorneys’ fees), if
any, which Seller may incur as a result of (a) Purchaser’s breach of the



20









 







foregoing representation and warranty, or (b) any claim by any real estate or other broker,
finder, agent or other person claiming by, through, or under Purchaser.



21









 





ARTICLE IX.

Default and Remedies




     9.1 Seller’s Default; Purchaser’s Remedies.




     (a) Seller’s Default. Seller shall be in default hereunder if it shall fail to
meet, comply with, or perform any material covenant, agreement or obligation on its part
required within the time limits and in the manner required in this Agreement and shall fail
to cure same within ten (10) Business Days after receipt of written notice from Purchaser.




     (b) Purchaser’s Remedies. In the event Seller shall be in default hereunder
after the expiration of the applicable cure period, then Purchaser may, at Purchaser’s sole
option, either:




     (i) terminate this Agreement by written notice delivered to Seller, in which
case the Earnest Money shall be returned to Purchaser by the Title Company, and this
Agreement shall be of no further force or effect, except for the provisions which by
their terms survive the termination of this Agreement; or




     (ii) enforce specific performance of this Agreement against Seller, in which
case it shall be entitled to recovery from Seller its reasonable costs of and
attorney’s fees in connection therewith.


In the event Purchaser terminates this Agreement as provided in Section 9.1(b)(i) above, it
shall be entitled to receive from Seller an amount equal to all costs and expenses incurred by it
with respect to the due diligence performed by it in connection with the Transaction, as well as
all its legal, accounting and other professional fees and expenses incurred in furtherance of the
Transaction; provided, however, Seller’s total liability for such costs shall not exceed the sum of
Thirty-Five Thousand Dollars ($35,000).




     9.2 Purchaser’s Default; Seller’s Remedies.




     (a) Purchaser’s Default. Purchaser shall be in default hereunder if it shall
fail to meet, comply with, or perform any material covenant, agreement or obligation on its
part required within the time limits and in the manner required in this Agreement and shall
fail to cure same within ten (10) Business Days after written notice from Seller.




     (b) Seller’s Remedy. In the event Purchaser shall be in default hereunder
after the expiration of the applicable cure period as provided in this Agreement, Seller
shall be entitled, as its sole and exclusive remedy, to terminate this Agreement and receive
payment of the Earnest Money from the Title Company as full liquidated damages, and



22









 







thereafter Purchaser shall have no further obligations or liability hereunder. The
parties hereto hereby acknowledge that it is impossible to more precisely estimate the
specific damage to be suffered by Seller, and the parties hereto expressly acknowledge and
intend that this provision shall be a provision for the retention of Earnest Money and not
as a penalty. Seller expressly waives (i) any right to specific performance of this
Agreement, and (ii) the defense of lack of mutuality of remedies.



ARTICLE X.

Miscellaneous




     10.1 Survival. All of the representations, warranties, covenants, agreements and
indemnities of Seller and Purchaser contained in this Agreement shall be deemed independent of one
another and shall survive the Closing for a period of one (1) year and shall not be deemed to merge
upon the acceptance of the Deed by Purchaser during that time period.



     10.2 Right of Assignment. Without the prior consent of Seller, Purchaser may assign
all of its rights and obligations under this Agreement to an entity affiliated with Purchaser,
provided that the original Purchaser shall continue to remain liable in such case for the
obligations of the “Purchaser” hereunder.




23









 







     10.3 Notices. All notices, requests and other communications under this Agreement
shall be in writing and shall be either (a) delivered in person, (b) sent by certified mail, return
receipt requested, (c) delivered by a nationally recognized overnight delivery service or (d) sent
by facsimile transmission and addressed as follows:



	 	 	 	 	 
	 

	 	If intended for Purchaser:
	 	Healthcare Realty Trust Incorporated
	 

	 	 	 	3310 West End Avenue, Suite 700
	 

	 	 	 	Nashville, Tennessee 37203
	 

	 	 	 	Attn: Stephen E. Cox, Jr.
	 

	 	 	 	Phone: (615) 269-8118
	 
	 	 	 	 
	 

	 	 	 	Fax: (615) 463-7739
	 

	 	With a copy to:
	 	Baker, Donelson, Bearman, Caldwell & Berkowitz
	 

	 	 	 	211 Commerce Street, Suite 1000
	 

	 	 	 	Nashville, TN 37201
	 

	 	 	 	Attn: Kenneth P. Ezell, Jr.
	 

	 	 	 	Phone: (615) 726-5721
	 

	 	 	 	Fax: (615) 744-5721
	 
	 	 	 	 
	If intended for Seller:	 	Orthopaedics Indianapolis Surgical Associates, LLC
	 

	 	 	 	8450 Northwest Blvd.
	 

	 	 	 	Indianapolis, IN 46278
	 

	 	 	 	Attn: George G. Kellum
	 

	 	 	 	Phone: (317) 802-2064
	 

	 	 	 	Fax: (317) 802-2170
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Cain Brothers RE LLC
	 

	 	 	 	c/o J. Michael Davis
	 

	 	 	 	One North Franklin, Suite 300
	 

	 	 	 	Chicago, Illinois 60606
	 

	 	 	 	Phone: (312) 604-0577
	 

	 	 	 	Fax: (312) 456-9327
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Joseph W. Eke
	 

	 	 	 	9100 Keystone Crossing, Suite 400
	 

	 	 	 	Indianapolis, IN 46240
	 

	 	 	 	Phone: (317) 844-7400
	 

	 	 	 	Fax: (317) 574-9426





or at such other address or facsimile number, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other communication shall be


24









 






deemed to be duly received (1) if delivered in person or by a nationally recognized overnight
delivery service, when left at the address of the recipient, and (2) if sent by facsimile, upon
receipt by the sender of an acknowledgment or transmission report generated by the machine from
which the facsimile was sent indicating that the facsimile was sent in its entirety to the
recipient’s facsimile number; provided that if a notice, request or other communication is received
on a day which is not a Business Day, or after 5:00 P.M. on any Business Day at the addressee’s
location, such notice or communication shall be deemed to be duly received by the recipient at 9:00
a.m. on the first Business Day thereafter.




     10.4 Entire Agreement; Modifications. This Agreement embodies and constitutes the
entire understanding between the parties with respect to the Transaction, and all prior or
contemporaneous agreements, understandings, representations and statements (oral or written) are of
no force or effect. Neither this Agreement nor any provision hereof may be waived, modified,
amended, discharged or terminated except by an instrument in writing signed by the Party against
whom the enforcement of such waiver, modification, amendment, discharge or termination is sought,
and then only to the extent set forth in such instrument. This Agreement, although initially drawn
by one of the Parties hereto, shall not be construed for or against either party as a result
thereof in any dispute pertaining to this Agreement or the Transaction, but this Agreement shall be
interpreted in accordance with language hereof in an effort to reach the result intended thereby.



     10.5 Applicable Law; Venue. THIS AGREEMENT AND THE TRANSACTION SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF INDIANA; AND THE VENUE FOR ANY ACTION
BROUGHT UNDER THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL LIE EXCLUSIVELY IN THE
FEDERAL COURTS IN MARION COUNTY, INDIANA.



     10.6 Captions. The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe, or limit the scope or intent of this Agreement or
any of the provisions hereof.



     10.7 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and assigns; provided, however the delivery of the Agreement by one
party shall not be binding upon either until both parties have fully executed same. This Agreement,
however, may be executed in multiple counterparts, each of which shall be deemed an original and
all of which, together upon full execution, shall constitute one and the same instrument.



     10.8 Time is of the Essence. With respect to all provisions of this Agreement, time
is of the essence. However, if the first or last date of any period which is set out in any
provision



25









 







of this Agreement falls on a day which is not a Business Day, then, in such event, the time of
such period shall start or end, as the case may be, on the next day which is a Business Day.



     10.9 Waiver of Conditions. Any Party may at any time or times, at its election, waive
any of the conditions to its obligations hereunder, but any such waiver shall be effective only if
contained in a writing signed by such Party. No waiver by a Party of any breach of this Agreement
or of any warranty or representation hereunder by the other Party shall be deemed to be a waiver of
any other breach or warranty or representation by such other Party (whether preceding or succeeding
and whether or not of the same or similar nature), and no acceptance of payment or performance by a
Party after any breach by the other Party shall be deemed to be a waiver of any breach of this
Agreement or of any representation or warranty hereunder by such other Party, whether or not the
first Party knows of such breach at the time it accepts such payment or performance. No failure or
delay by a Party to exercise any right it may have by reason of the default of the other Party
shall operate as a waiver of default or modification of this Agreement or shall prevent the
exercise of any right by the first Party while the other Party continues to be so in default.



     10.10 Severability. In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or be construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in full force and effect.



     10.11 No Recording. Neither party shall record this Agreement or any short form,
memorandum or notice thereof in any public or governmental office.



     10.12 Attorneys’ Fees. In the event of any litigation between the Parties under this
Agreement, the prevailing party, in addition to those damages and other awards given such party
therein, shall be entitled to reasonable attorneys’ fees and court costs at all trial and appellate
levels.



     10.13 Independent Consideration. Seller hereby acknowledges the receipt of the
Independent Consideration, which amount the Parties bargained for and agreed to as consideration
for Purchaser’s exclusive right to inspect and purchase the Property and for Seller’s execution,
delivery and performance of this Agreement. The Independent Consideration is in addition to and
independent of any other consideration or payment provided for in this Agreement, is nonrefundable,
and it is fully earned and shall be retained by Seller notwithstanding any other provisions of this
Agreement.



     10.14 Escrow Agent. The Title Company shall promptly deposit the Earnest Money and
hold the same and disburse the same in accordance with this Agreement. The Earnest Money shall be
applied against the Purchase Price at Closing, or refunded to Purchaser or paid to



26









 







Seller if this transaction is not closed, as the case may be, all in accordance with the terms
of this Agreement. In performing any of its duties hereunder, the Title Company shall not be
liable to a party or to any third person for any erroneous delivery to Purchaser or Seller of
monies subject to the escrow, nor shall the Title Company incur any liability to anyone for any
damages, losses or expenses, except for the Title Company’s own willful default, gross neglect or
breach of trust. In the event Title Company has doubts as to its duties or liabilities under this
Agreement, the Title Company may, in its discretion, continue to hold monies in escrow until the
Parties mutually agree on disbursement thereof, or until a court of competent jurisdiction shall
determine the rights of the Parties thereto. Alternatively, the Title Company may elect to deposit
the funds held with a court having jurisdiction of the dispute, and upon notifying the Parties of
such disposition, all liability of the Title Company under this Agreement shall terminate. In the
event of any action between Purchaser and Seller in which the Title Company is made a party by
virtue of serving as the escrow agent under this Agreement, or in the event of any suit in which
the Title Company interpleads the monies in escrow, the Title Company shall be entitled to recover
all costs including a reasonable attorney’s fee through all trials, appeals and other proceedings
from the losing party.



     10.15 Third-Party Beneficiaries. This Agreement is not intended to and shall not
inure to the benefit of any third-party.



(Signatures on the following pages)




27









 








[Signature page — Agreement of Sale and Purchase — Purchaser]




     EXECUTED on the date set forth below to be effective as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	PURCHASER:	 	 
	 
	 	 	 	 	 	 
	 	 	HEALTHCARE REALTY TRUST
INCORPORATED,

a Maryland corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ B. Douglas Whitman II	 	 
	 

	 	 	 	 

	 	 
	 

	 	Printed:	 	B. Douglas Whitman II 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Its:	 	Senior Vice President 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	June 9, 2006 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Purchaser’s Tax Identification Number: 62-1507028	 	 






28









 






[Signature page — Agreement of Sale and Purchase — Seller]




     EXECUTED on the date set forth below to be effective as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	SELLER:	 	 
	 
	 	 	 	 	 	 
	 	 	ORTHOPAEDICS INDIANAPOLIS
SURGICAL ASSOCIATES, LLC,

an Indiana limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ George G. Kellum III	 	 
	 

	 	 	 	 

	 
	 

	 	Printed:	 	George G. Kellum III 	 	 
	 

	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Its:	 	Secretary 	 	 
	 

	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	June 9, 2006	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Seller’s
Tax Identification Number:	35-1988341 	 
	 

	 	 	 	 	 	 	 






29









 






LIST OF EXHIBITS




	 	 	 
	Exhibit A

	 	Legal Description of the Land
	 
	 	 
	Exhibit B

	 	Form of Bill of Sale and Assignment
	 
	 	 
	Exhibit C

	 	Form of Certificate of Non-Foreign Status
	 
	 	 
	Exhibit D

	 	Form of Closing Certificate
	 
	 	 
	Exhibit E

	 	Form of Deed
	 
	 	 
	Exhibit F

	 	List of Service Contracts







30