AGREEMENT
BY AND BETWEEN
ORNDA HEALTHCORP,
a Delaware corporation
('OrNda')
AND
MIDWAY ACQUISITION COMPANY, INC.
an Alabama corporation
('Midway')
April 19, 1994
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II AGREEMENTS TO CAUSE CONVEYANCE, PURCHASE AND LEASE . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 AGREEMENT TO CAUSE CONVEYANCE AND PURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 AGREEMENT TO LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 PAYMENT OF PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 INDEPENDENT CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV ITEMS TO BE FURNISHED TO MIDWAY BY ORNDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 DUE DILIGENCE MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V TITLE AND SURVEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 PRELIMINARY TITLE REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 REVIEW PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 ADDITIONAL EXCEPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 REPRESENTATIONS AND WARRANTIES OF ORNDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.2 COVENANTS OF ORNDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF MIDWAY . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VII CONDITIONS TO THE MIDWAY'S AND ORNDA'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.1 CONDITIONS TO THE MIDWAY'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.2 FAILURE OF CONDITIONS TO MIDWAY'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7.3 CONDITIONS TO ORNDA'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7.4 FAILURE OF CONDITIONS TO ORNDA'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VIII PROVISIONS WITH RESPECT TO THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 ORNDA'S CLOSING OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.2 MIDWAY'S CLOSING OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8.3 TITLE COMPANY'S CLOSING OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IX EXPENSES OF CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.1 ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.3 CLOSING COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE X DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.1 ORNDA'S DEFAULT; MIDWAY'S REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.2 MIDWAY'S DEFAULT; ORNDA'S REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.1 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.2 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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11.3 ENTIRE AGREEMENT; MODIFICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11.4 APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.5 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.6 BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.7 TIME IS OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.8 WAIVER OF CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.9 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.10 RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.11 NO ASSUMPTION OF LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.12 NO LEGAL OR BENEFICIAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.13 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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AGREEMENT
THIS AGREEMENT (the 'Agreement') is made and entered into as
of April 19, 1994, by and between ORNDA HEALTHCORP, a Delaware corporation
(hereinafter referred to as 'OrNda'), and MIDWAY ACQUISITION COMPANY, INC., an
Alabama corporation (hereinafter referred to as 'Midway'). OrNda and Midway
are sometimes collectively referred to herein as the 'Parties' and each of the
Parties is sometimes singularly referred to herein as a 'Party'.
WHEREAS, Summit Properties, a California general partnership
(the 'Facility Partnership'), is the owner of certain real property and
improvements thereon located at 5901 West Olympic Boulevard, Los Angeles,
California, more particularly described on Exhibit A attached hereto and made a
part hereof for all purposes by this reference, consisting of a 95,940 square
feet, commonly known as Midway Medical Plaza (the 'Facility');
WHEREAS, Sierra Orlando Properties, a California general
partnership (the 'Parking Partnership' and collectively with the Facility
Partnership, the 'Partnerships'), is the owner of that certain real property
and improvements thereon located at 5975 West Olympic Boulevard, Los Angeles,
California, more particularly described on Exhibit A-1 attached hereto,
consisting of a seven story parking structure containing approximately 199,340
square feet (the 'Parking Structure', and together with the Facility, the 'Real
Property');
WHEREAS, OrNda has entered into that certain Agreement and
Plan of Merger dated as of December 2, 1993 (the 'Merger Agreement') with
Summit Health Ltd. ('Summit'), which is scheduled to close on or about April
19, 1994;
WHEREAS, as a condition to the Merger Agreement, OrNda has
agreed to purchase, or cause to be purchased, certain real estate held by
certain affiliates of Summit, including the Property (as hereinafter defined)
held by the Partnerships; and
WHEREAS, OrNda desires to cause the Property to be sold and
Midway desires to purchase the Property, and simultaneously therewith, to enter
into a lease transaction pursuant to which Midway shall lease to OrNda's
designee, and OrNda's designee shall lease from Midway, the Property.
NOW, THEREFORE, in consideration of the sum of $10.00, the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
ARTICLE I
DEFINITIONS
As used herein (including any Exhibits attached hereto), the
following terms shall have the meanings indicated:
'Approvals' has the meaning set forth in the Closing
Agreements.
'Business Day(s)' means calendar days other than Saturdays,
Sundays and legal holidays.
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'Closing' means the consummation of the sale and purchase
provided for herein, to be held at the offices of Skadden, Arps, Slate, Meagher
& Flom, 300 South Grand Avenue, Los Angeles, California 90071, or such other
place as the Parties may mutually agree.
'Closing Agreements' means the Sierra Closing Agreement and
the Summit Closing Agreement.
'Closing Date' means April 19, 1994 or such earlier date as
shall be hereafter agreed upon by the Parties.
'Credit Enhancements' means all security deposits, security
interests, letters of credit, pledges, prepaid rent or other sums, deposits or
interests, if any, held by Subsidiary with respect to the Property, the Tenant
Leases or the Tenants.
'Deed' has the meaning set forth in the Closing Agreements.
'Due Diligence Materials' means the information to be provided
by OrNda or the Partnership to Midway pursuant to the provisions of Section 4.1
hereof.
'Effective Date' means the date set forth in the preamble of
this Agreement.
'Exception Documents' means true, correct and legible copies
of each document listed as an exception to title on the Title Commitment.
'Facility Partnership' means Summit Properties, a California
general partnership.
'Guaranty' means a guaranty of performance of the Lease
substantially in the form attached hereto as Exhibit C to be executed by OrNda.
'Independent Consideration' means the sum of $100.00.
'Intangible Property' has the meaning set forth in the Closing
Agreements.
'Lease' means a lease agreement in the form set forth on
Exhibit D attached hereto and made a part hereof, which shall be executed and
delivered by Subsidiary and Midway at the Closing, and pursuant to the terms of
which Midway shall lease the Property to Subsidiary following the Closing.
'Lease Assignment' means an Assignment of Rents and Leases
substantially in the form of Exhibit E attached hereto, to be executed by
Subsidiary as Lessee in favor of Midway as Lessor at Closing, pursuant to the
terms of which (i) Subsidiary shall absolutely and unconditionally assign to
Midway all of its right, title and interest in and to the Tenant Leases, and
(ii) Subsidiary shall assign to Midway the Credit Enhancements, if any, as
security for the obligations of the Subsidiary under the Lease, and any other
obligation of the Subsidiary to Midway.
'Merger Agreement' has the meaning set forth in the recitals
hereof.
'Midway' has the meaning set forth in the Preamble.
'OrNda' has the meaning set forth in the Preamble.
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'Parking Partnership' means Sierra Orlando Properties, a
California general partnership.
'Partnerships' means the Facility Partnership and the Parking
Partnership.
'Party' or 'Parties' have the meanings set forth in the
preamble to this Agreement.
'Permitted Exceptions' has the meaning set forth in the
Closing Agreements.
'Personal Property' has the meaning set forth in the Closing
Agreements.
'Plans' has the meaning set forth in the Closing Agreements.
'Preliminary Title Reports' has the meaning set forth in the
Closing Agreements.
'Property' means, collectively, the Real Property, the
Personal Property and the Intangible Property.
'Purchase Price' means an amount equal to $20,400,000.00.
'Real Property' has the meaning set forth in the Preamble.
'Search Reports' means the initial reports of searches made of
the Uniform Commercial Code Records of the County in which the Property is
located, and of the office of the Secretary of State of the State in which the
Property is located, which searches shall reflect that none of the Property is
encumbered by liens. The Search Reports shall be updated, at Midway's expense,
at or within one week prior to Closing.
'SHL Leases' has the meaning set forth in the Closing
Agreements.
'Service Contracts' has the meaning set forth in the Closing
Agreements.
'Sierra Closing Agreement' means the Real Estate Purchase
Closing Agreement to be executed at the Closing by the Parking Partnership and
Midway substantially in the form attached hereto as Exhibit B.
'Subsidiary' means Midway Hospital Medical Center, Inc., a
California corporation and the wholly-owned subsidiary of OrNda.
'Summit Closing Agreement' means the Real Estate Purchase
Closing Agreement dated the date hereof between Midway and the Facility
Partnership, in substantially the form of Exhibit B-1 hereto.
'Tenant' means the lessees or tenants under the Tenant Leases,
if any.
'Tenant Leases' means all leases, subleases and other rental
agreements, if any, (written or verbal, now or hereafter in effect) that grant
a possessory interest in and to any space in the Improvements or that otherwise
have rights with regard to the use of the Land or Improvements, and all Credit
Enhancements, if any, held in connection therewith.
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'Termination Agreement' means an agreement among Subsidiary
and Midway as successors-in-interest to the Partnerships under the SHL Leases
terminating the SHL Leases, substantially in the form of Exhibit F attached
hereto.
'Title Company' means Lawyers Title Insurance Corporation,
whose address is 800 East Colorado Boulevard, Pasadena, California 91101,
Attention: Glen Trowbridge
'Title Policy' means an ALTA Extended Coverage Owner's Policy
of Title Insurance (1970 Form B - 1990 revision), together with CLTA
endorsements numbers 100 (modified), 103.7, 116, 116.1, 116.4, 116.7 and 123.2
with respect to the Facility and 100 (modified), 103.7, 116, 116.1 and 123.2
with respect to the Parking Structure, with liability in the amount of the
Purchase Price, dated as of the Closing Date, issued by the Title Company,
insuring title to the fee interest in the Real Property in Midway, subject only
to the Permitted Exceptions and to the standard printed exceptions included in
the ALTA standard form owner's extended coverage policy of title insurance,
with the following modifications: (a) the exception for ad valorem taxes shall
reflect only taxes for the current and subsequent years; (b) any exception as
to parties in possession shall be limited to rights of tenants in possession,
as tenants only, pursuant to the Lease and the Tenant Leases; and (c) there
shall be no general exception for visible and apparent easements or roads and
highways or similar items (with any exception for visible and apparent
easements or roads and highways or similar items to be specifically referenced
to and shown on the Survey and also identified by applicable recording
information).
'Warranties' has the meaning set forth in the Closing
Agreements.
ARTICLE II
AGREEMENTS TO CAUSE CONVEYANCE, PURCHASE AND LEASE
2.1 AGREEMENT TO CAUSE CONVEYANCE AND PURCHASE. On the
Closing Date, OrNda shall cause the Partnerships to sell, convey, assign,
transfer and deliver to Midway and Midway shall purchase, acquire and accept
from the Partnerships, the Property, for the Purchase Price pursuant to the
terms of the Closing Agreements.
2.2 AGREEMENT TO LEASE. On the Closing Date, and subject
to performance by the Parties of the terms and provisions of this Agreement,
Midway shall lease to Subsidiary and Subsidiary shall lease from Midway, the
Property at the rental and upon the terms and conditions set forth in the
Lease.
ARTICLE III
PURCHASE PRICE
3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price shall
be paid by Midway delivering to the Partnerships at the Closing by wire
transfers or other immediately available funds payable as directed by the
Partnerships in the amount of the Purchase Price, subject to adjustment as
provided in Article IX hereof.
3.2 INDEPENDENT CONSIDERATION. Within one Business Day
following the Effective Date, Midway shall deliver to the OrNda, in funds
immediately forfeitable to OrNda, the Independent Consideration, as independent
consideration for any option granted to Midway by OrNda herein, and based upon
such consideration and the mutual covenants of OrNda and Midway contained
herein, OrNda
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hereby agrees that any such option granted Midway is irrevocable and OrNda
shall not terminate said option without the prior written consent of Midway,
except as may be expressly provided for herein.
ARTICLE IV
ITEMS TO BE FURNISHED TO MIDWAY BY ORNDA
4.1 DUE DILIGENCE MATERIALS. Within 15 days after the
Closing Date, OrNda or the Subsidiary shall deliver or caused to be delivered
to Midway or make available to Midway at the Property for its review (to the
extent provided by the Partnership) the following items to the extent
reasonably available to OrNda or the Subsidiary:
(a) True, correct, complete and legible copies of all
Tenant Leases, Service Contracts, Warranties, Approvals, and Plans;
(b) A true, correct, complete and legible rent roll of
all existing Tenant Leases, if any, setting forth with respect to each of the
Tenant Leases: (i) the premises covered; (ii) the date of such Tenant Lease and
all amendments and modifications thereto; (iii) the name of the Tenant,
licensee or occupant; (iv) the term; (v) the rents and other charges payable
thereunder; (vi) the rents or other charges in arrears or prepaid thereunder,
if any, and the period for which any such rents and other charges are in
arrears or have been prepaid; (vii) the nature and amount of the security
deposits thereunder; if any (viii) options to renew or extend contained in any
of the Tenant Leases; (ix) any free rent, concessions, allowances, rebates or
refunds to which the Tenant, licensee or occupant may have been or be entitled;
(x) certification of any known disputes or claims of breach on the part of the
OrNda; (xi) the status of Tenant improvements to be performed by Subsidiary;
and (xii) the nature and amount of any commissions payable with respect
thereto;
(c) An inventory of the Personal Property owned by the
Partnerships and transferred to Midway pursuant to the Bill of Sale (as defined
in the Closing Agreements);
(d) True, correct, complete and legible copies of the
following items:
(i) tax statements or assessments for all real
estate and personal property taxes assessed against the
Property for the current and the prior two calendar years; and
(ii) 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) Midway acknowledges receipt of the Preliminary Site
Assessment, Midway Medical Facilities in Los Angeles, California, dated
November 18, 1993 as prepared by Western Technologies, Inc.
ARTICLE V
TITLE AND SURVEY
5.1 PRELIMINARY TITLE REPORTS. Midway hereby
acknowledges receipt of the Title Reports, Exception Documents and Surveys
referenced in the Closing Agreements.
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5.2 REVIEW PERIOD. Midway hereby accepts all exceptions
to title referenced in the Preliminary Title Reports and all matters shown on
the Surveys and such accepted exceptions shall in any case be identical to the
Permitted Exceptions set forth in the Closing Agreements.
5.3 ADDITIONAL EXCEPTIONS. In the event that at any time
the Title Commitment, Exception Documents, Surveys or Search Reports are
modified (other than the deletion or elimination of any item as to which Midway
has made an objection), Midway shall have the right to review and approve or
disapprove any such modification and to terminate this Agreement in the event
that OrNda is unable to eliminate any such matters to the satisfaction of
Midway, except that Midway's Review Period as to such additional items shall be
for a period expiring on the Closing Date.
ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
6.1 REPRESENTATIONS AND WARRANTIES OF ORNDA. To induce
Midway to enter into this Agreement and to purchase the Property, OrNda
represents and warrants to Midway, to the best of its knowledge, as follows:
(a) OrNda has duly and validly authorized and executed
this Agreement, and has right, title, power and authority to enter into this
Agreement and, at Closing, to consummate the actions provided for herein. The
execution by OrNda of this Agreement and the consummation by OrNda of the
transactions contemplated hereby do not, and at the Closing will not result in
a breach of any of the terms or provisions of, or constitute a default or a
condition which upon notice or lapse of time or both would ripen into a default
under any indenture, agreement, instrument or obligation to which OrNda is a
party or by which the Property or any portion thereof is bound; and does not
and at the Closing will not, constitute a violation of any order, rule or
regulation applicable to OrNda or any portion of the Property of any court or
of any federal or state or municipal regulatory body or administrative agency
or other governmental body having jurisdiction over OrNda or any portion of the
Property.
(b) The Purchase Price is allocated to the Real Property,
the Intangible Property and the Personal Property as set forth on Exhibit G
attached hereto.
6.2 COVENANTS OF ORNDA. OrNda shall indemnify and hold
Midway harmless from and against any claims for any brokerage fee or
commission, finder's fee or financial advisory fee arising from or related to
the transactions contemplated by this Agreement and which is asserted by any
person or entity claiming to have acted as agent or a representative of OrNda.
6.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF MIDWAY.
Midway represents and warrants to OrNda that:
(a) Midway 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 actions provided for herein, and the joinder of
no person or entity will be necessary to purchase the Property from OrNda at
Closing, and to lease the Property to the Subsidiary following Closing.
(b) The execution by Midway of this Agreement and the
consummation by Midway of the transactions contemplated herein 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 notice or lapse of time or
both
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would ripen into a default under any indenture, agreement, instrument or
obligation to which Midway is a party; and does not constitute a violation of
any order, rule or regulation applicable to Midway or any portion of the
Property of any court or of any federal or state or municipal regulatory body
or administrative agency or other governmental body having jurisdiction over
Midway.
(c) Midway shall have made its own investigation
regarding anticipated future Property performance, revenues, profits and
expenses and shall not rely on any performance, revenue, profit or expense
projections, forecasts or predictions relating to the Property provided by or
on behalf of OrNda.
(d) Midway shall indemnify and hold OrNda harmless from
and against any claims for any brokerage fee or commission, finder's fee or
financial advisory fee arising from or related to the transactions contemplated
by this Agreement and which is asserted by any person or entity claiming to
have acted as agent or a representative of Midway.
(e) All documents and information delivered by Midway to
OrNda pursuant to the provisions of this Agreement are true, correct and
complete as of the date hereof and will be correct and complete as of the
Closing Date, except as set forth in this Agreement.
ARTICLE VII
CONDITIONS TO THE MIDWAY'S AND ORNDA'S OBLIGATIONS
7.1 CONDITIONS TO THE MIDWAY'S OBLIGATIONS. The
obligations of Midway to purchase the Property from the Partnerships and to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, as of the Closing, of each of the following conditions:
(a) All of the representations and warranties of OrNda
set forth in this Agreement and of the Partnerships in the Closing Agreements
shall be true as of the Closing in all material respects except for changes
expressly permitted or contemplated by the terms of this Agreement or the
Closing Agreements, as the case may be.
(b) OrNda shall have delivered, performed, observed and
complied in all material respects with, all of the items, instruments,
documents, covenants, agreements and conditions required by this Agreement to
be delivered, performed, observed and complied with by OrNda prior to, or as
of, the Closing. The Partnerships shall have delivered, performed, observed
and complied in all material respects with, all of the items, instruments,
documents, covenants, agreements and conditions required by the Closing
Agreements to be delivered, performed, observed and complied with by the
Partnerships prior to, or as of, the Closing.
(c) Neither OrNda nor either Partnership shall be in
receivership or dissolution proceedings or have made any assignment for the
benefit of creditors, or shall have admitted in writing its inability to pay
its debts as they mature, or shall have been adjudicated as bankrupt, or have
filed a petition in voluntary bankruptcy, a petition or answer seeking
reorganization or an arrangement with creditors under the federal bankruptcy
law or any other similar law or statute of the United States or any state, and
no such petition shall have been filed against it.
(d) No portion of the Property shall have been destroyed
by fire or casualty.
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(e) No condemnation, eminent domain or similar
proceedings shall have been commenced or threatened with respect to any portion
of the Property.
7.2 FAILURE OF CONDITIONS TO MIDWAY'S OBLIGATIONS. In
the event any one or more of the conditions to Midway's obligations set forth
in Section 7.1 is not satisfied in whole or in part prior to Closing Date,
Midway, at Midway's option, shall be entitled to: (a) terminate this Agreement
by giving written notice thereto to OrNda, whereupon all moneys which have been
delivered by Midway to OrNda (other than the Independent Consideration) shall
be immediately refunded to Midway and neither Midway nor OrNda shall have any
further obligations or liabilities hereunder; or (b) waive such failure of
condition and proceed to Closing hereunder.
7.3 CONDITIONS TO ORNDA'S OBLIGATIONS. The obligations
of OrNda to cause the Partnership to sell the Property to Midway and to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, as of the Closing Date, of each of the following conditions:
(a) The representations and warranties of Midway
contained herein shall be in all material respects true and accurate as of the
Closing Date.
(b) Midway shall have delivered, performed, observed and
complied in all material respects with all of the items, instruments,
documents, covenants, agreements and conditions required by this Agreement to
be delivered, performed, observed and complied with by Midway as of the Closing
Date.
(c) All action required to be taken by the Midway to
authorize the execution, delivery, and performance of this Agreement and the
other agreements or documents related hereto, and the consummation of the
transactions contemplated hereby, shall have been duly and validly taken.
7.4 FAILURE OF CONDITIONS TO ORNDA'S OBLIGATIONS. In the
event any one or more of the conditions to OrNda's obligations set forth in
Section 7.3 are not satisfied in whole or in part prior to the Closing Date,
OrNda, at OrNda's option, shall be entitled to: (a) terminate this Agreement by
giving written notice thereto to Midway, whereupon all moneys which have been
delivered by Midway to OrNda (other than the Independent Consideration) shall
be immediately refunded to Midway and neither Midway nor OrNda shall have any
further obligations or liabilities hereunder; or (b) waive such failure of
conditions and proceed to Closing hereunder.
ARTICLE VIII
PROVISIONS WITH RESPECT TO THE CLOSING
8.1 ORNDA'S CLOSING OBLIGATIONS. No later than one (1)
day prior to the Closing Date, the parties shall hold a pre-closing, and upon
Closing OrNda shall furnish and deliver, or caused to be furnished and
delivered, to Midway or the Title Company for delivery to Midway, the
following:
(a) The items required by Section 6 of the Closing
Agreements, the Guaranty, the Termination Agreement, the Lease Assignment and
the Lease, each duly executed and acknowledged by OrNda, the Facility
Partnership, the Parking Partnership or the Subsidiary, as the case may be.
(b) An opinion from counsel for the Subsidiary, in a form
substantially the same as set forth on Exhibit H hereof.
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(c) Certificates of casualty and fire insurance for the
Property as required pursuant to the Lease showing Midway as an additional
insured and loss payee thereunder, with appropriate provisions for prior notice
to Midway in the event of cancellation or termination of such policies.
(d) Such affidavits, certificates or letters of indemnity
as the Title Company shall require in order to omit from its insurance policy
all exceptions for unfiled mechanic's, materialman's or similar liens.
(e) Any and all documentary transfer declarations or
disclosure documents, duly executed by the appropriate parties, required in
connection with the Deeds by any state, county or municipal agency having
jurisdiction over the Property or the transactions contemplated hereby.
(f) Such instruments or documents as are necessary, or
reasonably required by Midway or the Title Company, to evidence the status and
capacity of OrNda or the Partnership and the authority of the person or persons
who are executing the various documents on behalf of OrNda or either
Partnership in connection with the purchase and sale transaction contemplated
hereby.
8.2 MIDWAY'S CLOSING OBLIGATIONS. No later than one (1)
day prior to the Closing Date, the parties shall hold a pre-closing, and upon
Closing, Midway shall deliver to OrNda or the Partnerships, as the case may be,
the following:
(a) Wired funds to the account of the Title Company in
the amount of the Purchase Price, as adjusted pursuant to Article IX hereof.
(b) The Lease, duly executed and acknowledged by Midway.
(c) Such instruments as are necessary, or reasonably
required by OrNda, the Partnerships or the Title Company to evidence the
authority of Midway to consummate the transactions contemplated hereby and to
execute and deliver the closing documents on the Midway's part to be delivered.
8.3 TITLE COMPANY'S CLOSING OBLIGATIONS. Upon the
funding of the Purchase Price by the Midway, the Title Company shall (a)
deliver to Midway the Title Policy or its irrevocable commitment to issue same,
(b) cause the following documents to be recorded in the Office of the County
Recorder of Los Angeles, California (the 'Recorder'): (i) the Deeds, (ii) the
SHL Lease Termination Agreement, and (iii) the Memorandum of Lease, and (c) pay
all recording fees and documentary transfer taxes in connection with the
foregoing.
ARTICLE IX
EXPENSES OF CLOSING
9.1 ADJUSTMENTS. There shall be no adjustment of taxes,
assessments, water or sewer charges, gas, electric, telephone or other
utilities, operating expenses, employment charges, premiums on insurance
policies, rents or other normally proratable items, it being agreed and
understood by the Parties that the Subsidiary shall be obligated to pay such
items under the terms of the Lease.
9.2 RENTS. All deposits and prepaid rental collected and
required to be held by Seller under the SHL Leases and all other credits due
from the Partnerships shall be credited to OrNda. The initial
9
rent due by the Subsidiary under the Lease for the period from the Closing Date
through April 30, 1994, shall be paid by Subsidiary upon Closing by wire
transfer to Midway.
9.3 CLOSING COSTS. Midway and OrNda shall pay their own
attorneys' fees. Midway shall be responsible for any additional survey work;
OrNda shall be responsible for the survey costs payable by 'Buyer' to 'Seller'
as provided in the Closing Agreements. All other costs of the Closing shall be
paid as set forth in the Closing Agreement.
ARTICLE X
DEFAULT AND REMEDIES
10.1 ORNDA'S DEFAULT; MIDWAY'S REMEDIES.
(a) OrNda's Default. OrNda shall be deemed to be in
default hereunder upon the occurrence of any one or more of the following
events: (i) any of OrNda's warranties or representations set forth herein shall
be untrue in any material aspect when made or at Closing; or (ii) OrNda shall
fail in any material respect to meet, comply with, or perform any covenant,
agreement or obligation on its part required within the time limits and in the
manner required in this Agreement.
(b) Midway's Remedies. In the event OrNda shall be deemed
to be in default hereunder Midway may, as its sole remedy: terminate this
Agreement by written notice delivered to OrNda on or before the Closing.
Midway shall not be entitled to seek monetary damages from OrNda or assert any
other remedy against OrNda.
10.2 MIDWAY'S DEFAULT; ORNDA'S REMEDIES.
(a) Midway's Default. Midway shall be deemed to be in
default hereunder upon the occurrence of any one or more of the following
events: (i) any of Midway's warranties or representations set forth herein
shall be untrue in any material respect when made or at Closing; or (ii) Midway
shall fail in any material respect to meet, comply with, or perform any
covenant, agreement or obligation on its part within the time limits and in the
manner required in this Agreement.
(b) OrNda's Remedy. In the event Midway shall be deemed
to be in default hereunder, OrNda, as OrNda's sole and exclusive remedy for
such default, shall be entitled to terminate this Agreement and all rights of
Midway hereunder and to receive the Independent Consideration, it being agreed
between Midway and OrNda that such sum shall be liquidated damages for a
default of Midway hereunder because of the difficulty, inconvenience, and
uncertainty of ascertaining actual damages for such default.
ARTICLE XI
MISCELLANEOUS
11.1 SURVIVAL. All of the representations, warranties,
covenants, agreements and indemnities (but not matters or items identified as
conditions for parties' obligation to close) of OrNda and Midway contained in
this Agreement, to the extent not performed at the Closing, shall survive the
Closing only to the extent provided herein and shall not be deemed to merge
upon the acceptance of the Deeds by Midway.
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11.2 NOTICES. All notices, requests and other
communications under this Agreement shall be in writing and shall be delivered
in person, or delivered by recognized overnight delivery service, addressed as
follows:
If to Midway:
MIDWAY ACQUISITION COMPANY, INC.
One Perimeter Park South
Suite 335S
Birmingham, Alabama 35243
Attention: John W. McRoberts, President
With a copy to:
Mr. Thomas A. Ansley
Sirote & Permutt, P.C.
2222 Arlington Avenue South
Birmingham, Alabama 35205
If intended for OrNda:
ORNDA HEALTHCORP
340 West End Avenue
Suite 700
Nashville, Tennessee 37023-1042
Attention: Russell Tonnies, Vice President
and Treasurer
With a copy to:
Mr. Michael J. Kiely
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue
Los Angeles, California 90071
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. All such notices, requests and
other communications shall be deemed to have been sufficiently given for all
purposes hereof upon delivery if by hand or one day after deposit of a copy
with a recognized overnight delivery service.
11.3 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement
embodies and constitutes the entire understanding between the parties with
respect to the transactions contemplated herein, and all prior or
contemporaneous agreements, understandings, representations and statements
(oral or written) are merged into this Agreement. 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.
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11.4 APPLICABLE LAW. This Agreement and the transactions
contemplated hereby shall be governed by and construed in accordance with the
laws of the state in which the Property is located.
11.5 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.
11.6 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 and personal representatives,
successors, and assigns.
11.7 TIME IS OF THE ESSENCE. With respect to all
provisions of this Agreement, time is of the essence. However, if the first
date of any period which is set out in any provision of this Agreement falls on
a day which is not a Business Day, then, in such event, the time of such period
shall be extended to the next day which is a Business Day.
11.8 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 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.
11.9 BROKERS. Midway and OrNda hereby represent to each
other that neither has discussed this Agreement or the subject matter thereof
with any real estate broker or salesman so as to create any legal rights in any
such broker or salesman to claim a real estate commission or similar fee with
respect to the purchase or sale of the Property. Midway and OrNda each agree
to defend, indemnify and hold the other harmless from any and all claims for
any real estate commissions, leasing fees or similar fees arising out of or in
any way relating to the purchase, sale or lease of the Property based on their
respective acts.
11.10 RISK OF LOSS. Until the Closing Date, the risk of
loss as between the Parties of any portion of the Property shall be solely that
of OrNda. Risk of loss shall be that of Midway from and after the Closing
Date, at which time OrNda shall deliver or cause to be delivered to Midway
possession of the Property.
11.11 NO ASSUMPTION OF LIABILITIES. Midway shall not
assume any of the existing liabilities, indebtedness, commitments or
obligations of any nature whatsoever (whether fixed or contingent) of OrNda in
respect of the Property or otherwise, except those expressly assumed herein.
11.12 NO LEGAL OR BENEFICIAL INTEREST. The Parties
acknowledge that OrNda has no legal or beneficial interest in the Property as
of the date of this Agreement, other than any indirect interest following
delivery of the Deeds.
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11.13 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
EXECUTED to be effective as of the Effective Date.
MIDWAY ACQUISITION COMPANY, INC.
an Alabama corporation
/s/ John W. McRoberts
------------------------------------------
John W. McRoberts
President
Date April 19, 1994
--------------------------------------
Midway's Tax Identification Number:
------------------------------------------
ORNDA HEALTHCORP
a Delaware corporation
By /s/
----------------------------------------
Its Vice President
---------------------------------------
Date April 19, 1994
--------------------------------------
OrNda's Tax Identification Number:
------------------------------------------
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LIST OF EXHIBITS
Exhibit A - Facility Property Description
Exhibit A-1 - Parking Structure Property Description
Exhibit B - Sierra Closing Agreement
Exhibit B-1 - Summit Closing Agreement
Exhibit C - Guaranty
Exhibit D - Lease
Exhibit E - Assignment of Rents and Leases
Exhibit F - Termination Agreement
Exhibit G - Allocation of Purchase Price
Exhibit H - Subsidiary's Opinion of Counsel
EXHIBITS
To
AGREEMENT
BY AND BETWEEN
ORNDA HEALTHCORP,
a Delaware corporation
('OrNda')
AND
MIDWAY ACQUISITION COMPANY, INC.
an Alabama corporation
('Midway')
April 19, 1994
EXHIBIT A
FACILITY PROPERTY DESCRIPTION
Lots 105, 106, 107, 108, and 109 of Tract 6421, in the City of
Los Angeles, County of Los Angeles, State of California, as per map recorded in
Book 70, Pages 92 and 93 of Maps, in the Office of the County Recorder of said
county.
Except from said Lot 106 that portion described as follows:
Beginning at the Southeast corner of said lot; thence
Northerly along the Easterly line of said Lot 59.02 feet; thence Westerly
parallel with the Southerly line of said lot, 15.66 feet; thence Southerly 60
feet to a point in the Southeasterly line of said lot distant Westerly thereon
27 feet from the point of beginning; thence Easterly along said Southerly line
27 feet to the point of beginning.
EXHIBIT A-1
PARKING STRUCTURE PROPERTY DESCRIPTION
Lots 188, 189, 190, 191, and 192 of Tract No. 6421, in the
City of Los Angeles, in the County of Los Angeles, State of California, as per
map recorded in Book 70, Pages 92 and 93 of Maps, in the Office of the County
Recorder of said County.
EXHIBIT B
SIERRA CLOSING AGREEMENT
EXHIBIT B-1
SUMMIT CLOSING AGREEMENT
EXHIBIT C
GUARANTY
EXHIBIT D
LEASE
EXHIBIT E
ASSIGNMENT OF RENTS AND LEASES
EXHIBIT F
TERMINATION AGREEMENT
EXHIBIT G
ALLOCATION OF PURCHASE PRICE
PERSONAL PROPERTY $ 0
INTANGIBLE PROPERTY $ 0
REAL PROPERTY $20,400,000.00
FACILITY $17,420,000.00
PARKING STRUCTURE $ 2,980,000.00
EXHIBIT H
OPINION OF COUNSEL
5901, 5975 West Olympic Boulevard (Los Angeles, CA) Agreement - OrNda Healthcorp. and Midway Acquisition Co. Inc.
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