AGREEMENT OF SALE AND PURCHASE
BY AND BETWEEN
NORTHLAKE CENTER FOR OUTPATIENT SURGERY, L.P.,
a Georgia limited partnership
('SELLER')
AND
CRESCENT CAPITAL TRUST, INC.,
a Maryland corporation
('PURCHASER')
May 27, 1994
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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ARTICLE II AGREEMENTS TO SELL, PURCHASE AND LEASE . . . . . . . . . . . . . . . . . . 6
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2.1 AGREEMENT TO SELL AND PURCHASE . . . . . . . . . . . . . . . . . . . . . . 6
2.2 AGREEMENT TO LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3 AGREEMENT TO SUBLEASE . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 PAYMENT OF PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 INDEPENDENT CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV ITEMS TO BE FURNISHED TO PURCHASER BY SELLER . . . . . . . . . . . . . . . 7
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4.1 DUE DILIGENCE MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 DUE DILIGENCE REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V TITLE AND SURVEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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5.1 TITLE COMMITMENT, EXCEPTION DOCUMENTS AND SURVEY . . . . . . . . . . . . . 8
5.2 REVIEW PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.3 ADDITIONAL EXCEPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS . . . . . . . . . . 9
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6.1 REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . 9
6.2 INDEMNITY OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3 COVENANTS OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER . . . . . . . . . . 13
ARTICLE VII CONDITIONS TO THE PURCHASER'S AND SELLER'S OBLIGATIONS . . . . . . . . . . 14
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7.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS . . . . . . . . . . . . . . . . 15
7.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS . . . . . . . . . . . . . 16
7.3 CONDITIONS TO SELLER'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . 16
7.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS . . . . . . . . . . . . . . 16
ARTICLE VIII PROVISIONS WITH RESPECT TO THE CLOSING . . . . . . . . . . . . . . . . . . 16
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8.1 SELLER'S CLOSING OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 PURCHASER'S CLOSING OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . 18
8.3 TITLE COMPANY'S CLOSING OBLIGATIONS . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX EXPENSES OF CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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9.1 ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.2 CLOSING COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE X DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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10.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES . . . . . . . . . . . . . . . . . . 18
10.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES . . . . . . . . . . . . . . . . . . 19
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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11.1 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.2 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.3 ENTIRE AGREEMENT; MODIFICATIONS . . . . . . . . . . . . . . . . . . . . . 20
11.4 APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
11.5 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
11.6 BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.7 EXTENSION OF DATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.8 TIME IS OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.9 WAIVER OF CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.10 OFFER AND ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.11 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.12 RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.13 NO ASSUMPTION OF LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . 22
11.14 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the 'Agreement') is made
and entered into by and between NORTHLAKE CENTER FOR OUTPATIENT SURGERY, L.P.,
a Georgia limited partnership (hereinafter referred to as 'Seller'), and
CAPSTONE CAPITAL TRUST, INC., a Maryland corporation, and/or its assigns
(hereinafter referred to as 'Purchaser'). Seller and Purchaser are sometimes
collectively referred to herein as the 'Parties' and each of the Parties is
sometimes singularly referred to herein as a 'Party'.
WHEREAS, Seller is the owner of the Property (as hereinafter
defined), consisting of certain real property and improvements thereon
including an ambulatory surgery center containing 8,749 square feet, more or
less, as more particularly described on Exhibit A attached hereto and made a
part hereof for all purposes by this reference; and
WHEREAS, Seller desires to sell and Purchaser desires to
purchase the Property, and simultaneously therewith, to enter into a lease
transaction pursuant to which Purchaser shall lease to Lessee (as hereinafter
defined), and Lessee shall lease from Purchaser, 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:
'Assignment of Ground Lease' means an assignment of lease
substantially in the form of Exhibit F attached hereto executed by Seller and
Purchaser, in which Seller absolutely and unconditionally assigns its interests
in the Ground Lease, and Purchaser absolutely and unconditionally assumes
Seller's obligations under the Ground Lease.
'Best of Seller's Knowledge' means the actual knowledge of the
officers of Seller, without any independent investigation or inquiry.
'Bill of Sale' means a bill or bills of sale in the form
attached as Exhibit B hereto, and sufficient to transfer to Purchaser all of
the items set forth therein.
'Business Agreement' means any management agreement, service
contract, easement, covenant, restriction or other agreement relating to the
operation or maintenance of the Property.
'Business Day(s)' means calendar days other than Saturdays,
Sundays and legal holidays.
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'Certificate of Non-Foreign Status' means a certificate dated
as of the Closing Date, addressed to Purchaser and duly executed by Seller, in
the form of Exhibit C attached hereto.
'Claim' means any obligation, liability, lien, encumbrance,
loss, damage, cost, expense or claim, including, without limitation, any claim
for damage to property or injury to or death of any person or persons.
'Closing' means the consummation of the sale and purchase
provided for herein, to be held at the offices of Sirote & Permutt, P.C., 2222
Arlington Avenue South, Birmingham, Alabama or such other place as the Parties
may mutually agree.
'Closing Certificate' means a certificate in the form of
Exhibit D wherein Seller shall represent that the representations and
warranties of Seller contained in this Agreement are true and correct as of the
Closing Date as if made on and as of the Closing Date, except with respect to
those matters that may be disclosed in writing to and accepted by Purchaser
prior to the Closing Date.
'Closing Date' means the closing date contemplated by the
Escrow Agreement but no later than June 30, 1994 unless otherwise agreed upon
by the Parties.
'Deed' means a special (limited) warranty deed substantially
in the form of Exhibit E attached hereto (as the same may be modified to comply
with local law and custom), executed by Seller, as grantor, in favor of
Purchaser, as grantee, conveying the Improvements to Purchaser, subject only to
the Permitted Exceptions.
'Disclosure Schedule' has the meaning set forth in Section
6.1(q).
'Due Diligence Materials' means the information to be provided
by Seller to Purchaser pursuant to the provisions of Section 4.1 hereof.
'Effective Date' means the later of the two dates on which
this Agreement is signed and all changes initialed by Seller and Purchaser, as
indicated by their signatures below; provided that in the event only one Party
dates its signature, then the date of its signature shall be the Effective
Date.
'Engineering Documents' means all site plans, surveys, soil
and substrata studies, architectural drawings, plans and specifications,
engineering plans and studies, floor plans, landscape plans, and other plans
and studies that relate to the Land, the Improvements or the Fixtures and are
in Seller's possession or control.
'Escrow Agreement' has the meaning set forth in Section 8.1
hereof.
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'Exception Documents' means true, correct and legible copies
of each document listed as an exception to title on the Title Commitment.
'Fixtures' means all permanently affixed equipment, machinery,
fixtures, and other items of real and/or personal 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,
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, but
specifically excluding any and all equipment, personalty and trade fixtures
(including medical equipment, whether affixed or not) which is used by Seller
in operating the ambulatory surgery center located on the Property.
'Ground Lease' means that certain Ground Lease dated
____________________, executed by J. T. Honea, Sr. and J. T. Honea, Jr., as
landlord and Seller as tenant as amended by that certain amendment dated
____________________, for the lease of the Land.
'Hazardous Materials' means 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, medical
waste, chemicals known to cause cancer or reproductive toxicity, pollutants,
effluents, contaminants, emissions or related materials and items included in
the definition of hazardous or toxic wastes, materials or substances under any
Hazardous Materials Law.
'Hazardous Materials Law' means any law, regulation or
ordinance relating to environmental conditions, medical waste 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.
'Independent Consideration' means the sum of $100.00.
'Improvements' means all buildings, improvements, structures
and Fixtures now or on the Closing Date located on the Land, including, without
limitation, landscaping, parking lots and structures, roads, drainage and all
above ground and underground utility structures, equipment.
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systems and other so-called 'infrastructure' improvements, but specifically
excluding any and all equipment, personalty and trade fixtures (including
medical equipment, whether affixed or not) which is used by Seller in operating
the ambulatory surgery center located on the Property.
'Intangible Property' means all intangible property or any
interest therein now or on the Closing Date owned or held by Seller in
connection with the Land, the Improvements or the Fixtures, including all
leases, contract rights, agreements, 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 the Fixtures, or any part thereof, provided 'Intangible Property' shall not
include the general corporate trademarks, service marks, logos or insignia of
Seller.
'IPO' has the meaning set forth in Section 7.1(j) hereof.
'Land' means the real property more particularly described on
Exhibit A attached hereto and made a part hereof, together with all covenants,
licenses, privileges and benefits thereto belonging, and any easements,
rights-of-way, rights of ingress or egress or other interests of Seller in, on,
or to any land, highway, street, road or avenue, open or proposed, in, on,
across, in front of, abutting or adjoining such real property including,
without limitation, any strips and gores adjacent to or lying between such real
property and any adjacent real property.
'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, health and safety, disabled or handicapped persons.
'Lease' means a lease agreement in the form set forth on
Exhibit G attached hereto and made a part hereof, which shall be executed and
delivered by Lessee and Purchaser at the Closing, and pursuant to the terms of
which Purchaser shall lease the Property to Lessee following the Closing.
'Lease Assignment' means an Assignment of Rents and Leases
substantially in the form attached hereto as Exhibit H, to be executed by
Purchaser and Lessee at the Closing, pursuant to the terms of which Lessee
shall assign to Purchaser all of its right, title and interest in and to the
Sublease.
'Lessee' means Surgical Health Corporation, a Delaware
corporation, which is the corporate parent company of the general partner of
the Purchaser.
'Party' or 'Parties' have the meanings set forth in the
preamble to this Agreement.
'Permits' means all permits, licenses, approvals,
entitlements, notifications, determinations and other governmental and
quasi-governmental authorizations including, without limitation,
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certificates of occupancy or need, required in connection with the ownership,
planning, development, construction, use, operation or maintenance of the
Property by Seller or Lessee. As used herein, 'quasi-governmental' shall
include the providers of all utilities services to the Property.
'Permitted Exceptions' means those title exceptions or defects
which are approved in writing by Purchaser pursuant to Article V of this
Agreement.
'Property' means, collectively, the Land and all rights,
titles, and appurtenant interests, the Improvements, the Fixtures, the
Intangible Property, the Warranties, the Business Agreements and the
Engineering Documents. As used in the foregoing, 'appurtenant interests' shall
mean those interests which pass by operation of law with the conveyance of the
fee simple estate in the Land and Improvements.
'Purchase Price' means an amount equal to $1,040,000.00.
'Real Property' means the Land, the Improvements and the
Fixtures.
'Review Period' has the meaning set forth in Section 5.2.
'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, except any such liens that secure debts that will be paid
in full by Seller at or prior to Closing. The Search Reports shall be updated,
at Seller's expense, at or within one week prior to Closing.
'Sublease' means a sublease agreement in the form attached
hereto as Exhibit I attached hereto and made a part hereof, which shall be
executed and delivered by Lessee as sublessor and Sublessee at the Closing, and
pursuant to the terms of which Lessee shall sublease the Property to Sublessee
following the Closing.
'Sublessee' means NORTHLAKE CENTER FOR OUTPATIENT SURGERY,
L.P., a Georgia limited partnership.
'Survey' means a current 'as-built' ALTA survey, certified to
ALTA requirements, which shall: (a) include a legal description of the Land by
metes and bounds (which shall include a reference to the recorded plat, if
any), and a computation of the area comprising the Land in both acre, gross
square feet and net square feet (to the nearest one-hundredth of said
respective measurement); (b) accurately (upon Seller's belief, without inquiry)
show the location on the Land of all improvements, building and set-back lines,
fences, evidence of abandoned fences, ponds, creeks, streams, rivers,
officially designated 100-year flood plains and flood prone areas, canals,
ditches, easements, roads, rights-of-way and encroachments; (c) be certified to
the Purchaser, the
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Title Company, and any third-party lender designated by Purchaser; (d) legibly
identify any and all recorded matters shown on the Title Commitment or on said
survey by appropriate volume and page recording references and the survey shall
show the location of all adjoining streets; and (e) be satisfactory to the
Title Company so as to permit it to amend the standard exception for area and
boundaries in the Title Policy.
'Termination Date' means June 30, 1994.
'Title Commitment' means a current commitment issued by the
Title Company to the Purchaser 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' means First American Title Insurance Company,
whose address is 6065 Roswell Road, N.E., Suite 120, Atlanta, Georgia
30328-4011, Attention: Mr. Rob Reeder.
'Title Policy' means an ALTA Extended Coverage Owner's Policy
of Title Insurance (1970 Form B - 1990 revision), together with such
endorsements thereto as are reasonably and customarily required by
institutional purchasers of real property similar to the Property, 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 Purchaser, 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 areas and boundaries shall be deleted; (b) the exception for ad
valorem taxes shall reflect only taxes for the current and subsequent years;
(c) any exception as to parties in possession shall be limited to the rights of
Sublessee under the Sublease; (d) 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, if any); and (d) all other
exceptions shall be modified or endorsed in a manner reasonably acceptable to
Purchaser.
'Warranties' means all warranties, representations and
guaranties with respect to the Property, whether express or implied, which
Seller now holds or under which Seller is the beneficiary.
ARTICLE II
AGREEMENTS TO SELL, PURCHASE AND LEASE
2.1 AGREEMENT TO SELL AND PURCHASE. On the Closing Date
and subject to performance by the Parties of the terms and provisions of this
Agreement, Seller shall sell, convey, assign, transfer and deliver to Purchaser
and Purchaser shall purchase, acquire and accept from Seller, Seller's
leasehold estate in the Property under the Assignment of Lease, for the
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Purchase Price and subject to the terms and conditions of this Agreement. To
the extent permitted or required by law, Seller shall assign to Purchaser all
of Seller's right, title and interest in and to the Permits.
2.2 AGREEMENT TO LEASE. On the Closing Date, and subject
to performance by the Parties of the terms and provisions of this Agreement,
Purchaser shall lease to Lessee and Lessee shall lease from Purchaser, the
Property at the rental and upon the terms and conditions set forth in the
Lease.
2.3 AGREEMENT TO SUBLEASE. On the Closing Date, and
subject to performance by the Parties of the terms and provisions of this
Agreement, Lessee shall sublease to Sublessee and Sublessee shall sublease from
Lessee, the Property at the rental and upon the terms and conditions set forth
in the Sublease.
ARTICLE III
PURCHASE PRICE
3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price shall
be paid by Purchaser delivering to the Title Company at the Closing a wire
transfer or other immediately available funds payable to the order of the Title
Company in the amount of the Purchase Price, subject to adjustment as provided
in Article IX hereof.
3.2 INDEPENDENT CONSIDERATION. Within three Business
Days following the Effective Date, Purchaser shall deliver to the Seller, the
Independent Consideration, as independent consideration for the right granted
by Seller to Purchaser to examine the Due Diligence Materials and the Property
during the Review Period, and based upon such consideration and the mutual
covenants of Seller and Purchaser contained herein, Seller hereby agrees that
any such right granted Purchaser is irrevocable and Seller shall not terminate
this Agreement prior to the end of the Review Period without the prior written
consent of Purchaser, except as may be expressly provided for herein.
ARTICLE IV
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER
4.1 DUE DILIGENCE MATERIALS. Within 15 days after the
Effective Date, Seller shall deliver to Purchaser or make available to
Purchaser at the Property for its review the following items:
(a) True, correct, complete and legible copies of all
Business Agreements, Warranties, Permits, and Engineering Documents which
Seller has in its possession;
(b) True, correct, complete and legible copies of the
following items:
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(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;
(ii) all existing fire and extended coverage
insurance policies and any other insurance policies pertaining
to the Property;
(iii) all instruments evidencing, governing or
securing the payment of any loans secured by the Property or
related thereto, except with respect to any loans that will be
paid in full at or prior to Closing;
(iv) all environmental studies or impact reports
relating to the Property and in possession or control of
Seller, if any, and any approvals, conditions, orders or
declarations issued by any governmental authority relating
thereto (such studies and reports shall include, but not be
limited to, reports indicating whether the Property is or has
been contaminated by Hazardous Materials) and of which Seller
is aware; and
(v) all litigation files with respect to any
pending litigation, other than the litigation disclosed to
Purchaser under Article VI hereof, and claim files for any
claims made or threatened, the outcome of which might have a
material adverse effect on the Property or the use and
operation of the Property.
4.2 DUE DILIGENCE REVIEW. During the Review Period
Purchaser shall be entitled to review the Due Diligence Materials delivered or
made available by Seller to Purchaser pursuant to the provisions of Section 4.1
above. 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
giving written notice thereof to Seller on or before the expiration of the
Review Period, whereupon this Agreement shall automatically be rendered null
and void, all moneys which have been delivered by Purchaser to Seller or the
Title Company (other than the Independent Consideration) shall be immediately
returned to Purchaser and thereafter neither Party shall have any further
obligations or liabilities to the other hereunder. Alternatively, Purchaser
may give written notice setting forth any defect, deficiency or encumbrance and
specify a time within which Seller may in its sole discretion elect to (but
shall have no obligation whatsoever to do so) remedy or cure such matter
(before or after the expiration of the Review Period). If any defect,
deficiency or encumbrance, so noticed, is not satisfied or resolved to the
satisfaction of Purchaser, in Purchaser's sole discretion, within the time
period specified in such written notice, this Agreement shall automatically
terminate as provided in this section. If no such notice is timely given, then
Purchaser shall be deemed to have waived its right to so terminate. Also,
Purchaser shall treat the Due Diligence Materials as confidential and shall use
them solely for the purpose of evaluating the Property. If this Agreement is
terminated pursuant to the provisions of this Section, Purchaser shall promptly
redeliver to Seller all Due Diligence Materials and shall not retain any
copies, extracts or other reproductions in whole or in part of the Due
Diligence Materials and Purchaser shall also reimburse Seller for
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one-half of the actual out-of-pocket costs and expenses incurred by Seller to
deliver the Due Diligence Materials and the items required by Section 5.1 to
Purchaser, including one-half of Seller's reasonable, actual attorney's fees.
Purchaser shall reimburse Seller for the required amount within ten business
days following Seller's delivery to Purchaser of an invoice for the costs
incurred.
ARTICLE V
TITLE AND SURVEY
5.1 TITLE COMMITMENT, EXCEPTION DOCUMENTS AND SURVEY.
Within 15 days after the Effective Date, Seller shall deliver or cause to be
delivered to Purchaser, the Title Commitment, Exception Documents, Survey, and
Search Reports.
5.2 REVIEW PERIOD. Purchaser shall have the right to
review the Title Commitment, Exception Documents, Search Reports and Survey for
a period of 45 days from the Effective Date of this Agreement ('Review
Period'); provided, however, that if Purchaser notifies Seller on or before the
expiration of 15 days after the Effective Date that Seller has not delivered to
Purchaser all of the Due Diligence Materials or all of the items required by
Section 5.1 and shall specify which items are missing, the Review Period shall
be extended on a day-for-day basis until Seller delivers to Purchaser the
specified, missing Due Diligence Materials or the specified, missing items
described in Section 5.1 above. In the event any matters appear therein that
are unacceptable to Purchaser, Purchaser shall, within the Review Period notify
Seller in writing of such fact. Upon the expiration of said Review Period,
Purchaser shall be deemed to have accepted all exceptions to title referenced
in the Title Commitment and all matters shown on the Survey except for matters
which are the subject of a notification made under the preceding sentence, and
such accepted exceptions shall be included in the term 'Permitted Exceptions'
as used herein; provided that in no event shall any of the items listed on
Schedule B-1 or C of the Title Commitment constitute Permitted Exceptions for
purposes hereof. In the event that Purchaser objects to any such matters
within the Review Period, Seller shall have 30 days from receipt of such notice
within which to in its sole discretion elect to (but shall have no obligation
whatsoever to do so) eliminate or modify any such unacceptable exceptions or
items. In the event that Seller is unable or unwilling to eliminate or modify
such unacceptable items to the satisfaction of Purchaser on or before the
expiration of said 30-day period, Purchaser may either (a) waive such
objections and accept title to the Property subject to such unacceptable items
(which items shall then be deemed to constitute part of the 'Permitted
Exceptions'), or (b) terminate this Agreement by written notice to Seller,
whereupon this Agreement shall automatically be rendered null and void, all
moneys which have been delivered by Purchaser to Seller or the Title Company
(other than the Independent Consideration) shall be immediately returned to
Purchaser, and thereafter neither Party shall have any further obligations or
liabilities to the other hereunder, except for Purchaser's obligation to pay
one-half of Seller's expenses as set forth in Section 4.2.
5.3 ADDITIONAL EXCEPTIONS. In the event that at any time
the Title Commitment, Exception Documents, Survey or Search Reports are
modified in any material respect that is
9
adverse to Purchaser (other than the deletion or elimination of any item as to
which Purchaser has made an objection or any addition or modification which is
made at the request of Purchaser), Purchaser shall have the right to review and
approve or disapprove any such modification and to terminate this Agreement in
the event that Seller is unable or unwilling to eliminate any such matters to
the satisfaction of Purchaser in accordance with the provisions of Section 5.2
above, except that Purchaser's Review Period as to such additional items shall
be for a period expiring on the date that is the earlier to occur of (a) 15
days following the date of Purchaser's receipt of such modification, and (b)
the Closing Date, and all other time periods referred to in Section 5.2 shall
expire on the date that is the earlier of (i) the final day of the specified
time period as set forth therein, and (ii) the Closing Date.
ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
6.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce
Purchaser to enter into this Agreement and to purchase the Property, Seller
represents and warrants to Purchaser, to the Best of Seller's Knowledge, as
follows:
(a) Seller has and at the Closing Seller will convey,
transfer and assign to Purchaser, title to the Property, subject to the
Permitted Exceptions.
(b) Seller 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 Seller of this Agreement and the consummation by Seller 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, including the Ground Lease, agreement, instrument or
obligation to which Seller 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 Seller 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 Seller or any portion of the Property.
(c) Without the benefit of any estoppel certificates from
any third parties, there are no adverse or other parties in possession of the
Property or of any part thereof except the Seller. No party has been granted
any license, lease or other right relating to the use or possession of the
Property by Seller.
(d) No notice has been received by Seller and Seller is
not aware of any person having received notice from any insurance company that
has issued a policy with respect to any portion of the Property or from any
board of fire underwriters (or other body exercising similar functions),
claiming any defects or deficiencies or requiring the performance of any
repairs, replacements, alterations or other work. No notice has been received
by Seller from any issuing
10
insurance company that any of such policies will not be renewed, or will be
renewed only at a higher premium rate than is presently payable therefor,
except as disclosed to and accepted by Purchaser in writing.
(e) No pending condemnation, eminent domain, assessment
or similar proceeding or charge affecting the Property or any portion thereof
exists.
(f) All of the Improvements (including all utilities)
have been substantially completed and installed and are being used in all
material respects in accordance with all applicable Laws, including the plans
and specifications approved by the governmental authorities having jurisdiction
to the extent applicable. Permanent certificates of occupancy, all licenses,
permits, authorizations and approvals required by all governmental authorities
having jurisdiction, and the requisite certificates of the local board of fire
underwriters (or other body, exercising similar functions) have been issued for
the Improvements, all of the same will be in full force and effect. The
Improvements, as designed and constructed, comply with all statutes,
restrictions, regulations and ordinances applicable thereto.
(g) The existing water, sewer, gas and electricity lines,
storm sewer and other utility systems on the Land are adequate to serve the
utility needs of the Property. All of said utilities are installed and
operating, all installation and connection charges have been paid in full, and
the right to the return of any deposit or contribution in connection therewith
shall inure to Purchaser.
(h) There are no material structural defects in any of
the buildings or other Improvements constituting the Property. The
Improvements, all heating, electrical, plumbing and drainage at, or servicing,
the Property and all facilities and equipment relating thereto are in good
condition and working order and adequate in quantity and quality for the normal
operation of the Property. No part of the Property has been destroyed or
damaged by fire or other casualty. There are no unsatisfied requests for
repairs, restorations or alterations with regard to the Property from any
person, entity or authority, lender, insurance provider or governmental
authority.
(i) No work has been performed or is in progress at the
Property, and no materials will have been delivered to the Property that might
reasonably be expected to provide the basis for a mechanic's, materialmen's or
other lien against the Property or any portion thereof.
(j) There will exist no service contracts, management or
other agreements applicable to the Property other than the Business Agreements
furnished to Purchaser pursuant to Section 4.1. There are no agreements or
understandings (whether oral or written) with respect to the Property or any
portion thereof, to which Seller is a party, other than those delivered to
Purchaser pursuant to Section 4.1
(k) No default or breach by Seller exists under any of
the Business Agreements, or any of the covenants, conditions, restrictions,
rights-of-way or easements affecting the Property or any portion thereof.
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(l) There are no actions, suits or proceedings pending or
threatened against or affecting the Property or any portion thereof or relating
to or arising out of the ownership, or by any federal, state, county or
municipal department, commission, board, bureau or agency or other governmental
instrumentality, other than those set forth on the Disclosure Schedule under
Section 6.1(l). All judicial proceedings concerning the Property will be
finally dismissed and terminated prior to Closing.
(m) No fact or condition exists which would result in the
termination of the current access from the Property to any presently existing
public highways and/or roads adjoining or situated on the Property.
(n) There are no attachments, executions, assignments for
the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy
or under any other debtor relief laws contemplated by or pending or, threatened
against Seller or the Property.
(o) Other than with respect to activities in connection
with or conditions arising strictly from customary and ordinary use, or
maintenance of the Property by Seller in full compliance with any or all
Hazardous Materials Law, and except as disclosed in any environmental studies
or reports delivered by Seller to Purchaser pursuant to Section 4.1 of this
Agreement, Seller is unaware of (i) any Hazardous Materials installed, used,
generated, manufactured, treated, handled, refined, produced, processed, stored
or disposed of, or otherwise on or under the Property; (ii) any activity being
undertaken on the Property which could cause (a) the Property to become a
hazardous waste treatment, storage or disposal facility within the meaning of,
or otherwise cause a violation of any Hazardous Materials Law, (b) a release or
threatened release of Hazardous Materials from the Property within the meaning
of, or otherwise cause a violation of any Hazardous Materials Law or (c) the
discharge of Hazardous Materials into any watercourse, body of surface or
subsurface water or wetland, or the discharge into the atmosphere of any
Hazardous Materials which would require a permit under any Hazardous Materials
Law; (iii) any activity undertaken with respect to the Property which would
cause a violation or support a claim under any Hazardous Materials Law; (iv)
any investigation, administrative order, litigation or settlement with respect
to any Hazardous Materials, being threatened or in existence with respect to
the Property; (v) any notice being served on Seller from any entity,
governmental body or individual claiming any violation of any Hazardous
Materials Law, or demanding payment or contribution for the environmental
damage or injury to natural resources. 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 Materials Law.
(p) The Purchase Price is being allocated to the Real
Property and the portion of the Property which is considered to be personal
property as set forth on Exhibit J attached hereto.
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(q) All documents and information delivered by Seller to
Purchaser 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 and in the disclosure
schedule accompanying this Agreement and initialled by the Parties (the
'Disclosure Schedule'). The Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered paragraphs in this Section 6.1 and Section 6.3.
From time to time after the execution of this Agreement until the Closing,
Seller shall deliver to Purchaser one or more supplemental schedules setting
forth all changes in the schedules, and in previously delivered supplemental
schedules, if any, and in any of the representations and warranties made herein
whether or not previously modified by a schedule, arising out of matters
discovered or occurring prior to the Closing. Purchaser and its counsel shall
have 30 days to object in writing to any material information in any
supplemental schedule; failure by Purchaser to notify Seller within such 30-day
period of any objection to information provided in the supplemental schedule
prior to the Closing shall be deemed to be approval thereof.
6.2 INDEMNITY OF SELLER. Subject to the provisions
provided hereafter limiting the liability of Seller, Seller hereby agrees to
indemnify and defend, at its sole cost and expense, and hold Purchaser, its
successors and assigns, harmless from and against and to reimburse Purchaser
with respect to any and all claims, demands, actions, causes of action, losses,
damages, liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees and court costs) of any and every kind or character,
known or unknown, fixed or contingent, asserted against or incurred by
Purchaser at any time and from time to time by reason of or arising out of the
breach of any representation or warranty of Seller set forth in Section 6.1 of
this Agreement. This obligation of indemnity shall remain in effect only for
one year from the Closing Date; provided that such obligation shall be without
limitation with respect to the violation on or before the Closing Date by
Seller of any Hazardous Material Law. The provisions of this Section 6.2 shall
survive the Closing of the transaction contemplated by this Agreement for one
year from the Closing Date for the benefit of Purchaser, its successors and
assigns. However, notwithstanding any provision of this Agreement to the
contrary, Purchaser may exercise any right or remedy Purchaser may have at law
or in equity should Seller fail to meet, comply with or perform its indemnity
obligations required by this Section 6.2.
6.3 COVENANTS OF SELLER. Seller covenants and agrees
with Purchaser, from the Effective Date until the Closing or earlier
termination of this Agreement:
(a) Upon reasonable notice as to time by Purchaser to
Seller, Purchaser shall be entitled to make all inspections or investigations
desired by Purchaser with respect to the Property or any portion thereof, and,
subject to any security requirements, shall have complete physical access to
the Property, which access by Purchaser shall not interfere with Lessee's or
Sublessee's use and enjoyment of the Property. Seller shall have the right to
have one or more representatives present at any such inspection or
investigation. Purchaser agrees to (i) repair any damages to the Property
13
resulting from its inspection, (ii) prevent any liens from being filed against
the Property resulting from such inspections, and (iii) indemnify Seller from
any and all Claims by Purchaser arising out of such inspections.
(b) Seller shall cause to be maintained in full force
fire and extended coverage insurance upon the Property and public liability
insurance with respect to damage or injury to persons or property occurring on
or relating to operation of the Property in substantially the amounts as are
maintained by Seller on the date of this Agreement.
(c) Seller shall pay when due all bills and expenses of
the Property including any rent or other charges due under the Ground Lease.
Seller shall not voluntarily enter into or assume any new contracts or
obligations with regard to the Property which are in addition to or different
from those furnished and disclosed to Purchaser and reviewed and approved
pursuant to Section 4.1 other than any which may be terminated upon not more
than 30 days prior notice or any providing for a term of 12 months or less and
an annual payment of not more than $10,000.00.
(d) Seller shall not create or voluntarily permit to be
created any liens, easements or other encumbrances affecting any portion of the
Property or the uses thereof without the prior written consent of Purchaser.
(e) Seller will pay, as and when due, all interest and
principal and all other charges payable under any indebtedness secured by the
Property of Seller from the date hereof until Closing and will not knowingly
suffer or permit any material default or amend or modify the documents
evidencing or securing any such indebtedness of Seller to institutional lenders
without the prior consent of Purchaser.
(f) Seller will: (i) give to Purchaser, its attorneys,
accountants and other representatives, during normal business hours and as
often as may be requested, full access to the Property and to all books,
records and files (but excluding information which may be protected by the
attorney-client privilege) relating to the Property; (ii) furnish to Purchaser
all information concerning the Property which the Purchaser, its attorneys,
accountants or other representatives will reasonably request; and (iii)
cooperate with Purchaser in the conducting of such audit to the extent that it
does not materially interfere with Seller's business or require any substantial
out-of-pocket expense and will deliver to the accountants conducting such audit
such information known to Seller as may be reasonably required addressing,
among other things, any irregularities or undisclosed claims or liabilities
that could have a material effect on the results of the audit. Any information
furnished to Purchaser hereunder shall be subject to the confidentiality
provisions contained in Section 4.2.
6.4 REPRESENTATIONS, WARRANTIES AND COVENANTS 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 actions
14
provided for herein, and the joinder of no person or entity will be necessary
to purchase the Property from Seller at Closing, and to lease the Property to
Lessee following Closing.
(b) The execution by Purchaser of this Agreement and the
consummation by Purchaser 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 would ripen into a default under any indenture, agreement, instrument or
obligation to which Purchaser is a party; and does not constitute a violation
of any order, rule or regulation applicable to Purchaser 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
Purchaser.
(c) Purchaser shall have made its own investigation
regarding the physical condition of the Property and all other relevant matters
concerning the condition or status of the Property, including, without
limitation, 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 or any
statements or representations concerning the Property made by Seller (except
for the representations and warranties expressly set forth in Section 6.1
above) provided by or on behalf of Seller; provided that the foregoing
provision shall in no way lessen or diminish the obligation of Seller to
furnish true and correct copies of the Due Diligence Materials to Purchaser as
provided under Article IV hereof.
(d) Purchaser shall indemnify and hold Seller 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 Purchaser.
(e) All documents and information delivered by Purchaser
to Seller 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 and in the Disclosure
Schedule. From time to time after the execution of this Agreement until the
Closing, Purchaser shall deliver to Seller one or more supplemental schedules
setting forth all changes in the schedules, and in previously delivered
supplemental schedules, if any, and in any of the representations and
warranties made herein whether or not previously modified by a schedule,
arising out of matters discovered or occurring prior to the Closing. Seller
and its counsel shall have 30 days to object in writing to any material
information in any supplemental schedule; failure by Seller to notify Purchaser
within such 30-day period of any objection to information provided in the
supplemental schedule prior to the Closing shall be deemed to be approval
thereof.
(f) Immediately upon the conveyance of the Property by
Seller to Purchaser, Purchaser shall lease the Property to Lessee by executing
and delivering to Lessee the Lease in a form identical to that attached hereto
as Exhibit G.
15
(g) Purchaser shall not, so long as the Lease remains in
full force and effect, enter into any agreement, grant any easement or
otherwise encumber the Property without the consent of Lessee, except as
expressly permitted by the Lease.
ARTICLE VII
CONDITIONS TO THE PURCHASER'S AND SELLER'S OBLIGATIONS
7.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The
obligations of Purchaser to purchase the Property from Seller 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 Seller
set forth in this Agreement shall be true as of the Closing in all material
respects except for changes expressly permitted or contemplated by the terms of
this Agreement.
(b) Seller shall execute and deliver to Purchaser all
documents reasonably necessary to convey the Property to Purchaser in
accordance with the terms of this Agreement.
(c) Seller shall not be in receivership or dissolution
proceedings or shall not have made any assignment for the benefit of creditors,
or admitted in writing its inability to pay its debts as they mature, or shall
not have been adjudicated as bankrupt, or shall not 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 which is not removed within 60 days of the
date it is filed.
(d) No material or substantial change shall have occurred
with respect to the condition, financial or otherwise, of the Property or the
Seller.
(e) Neither the Property nor any material part thereof or
interest therein shall have been taken by execution or other process of law in
any action prior to Closing.
(f) Purchaser shall have received, in form acceptable to
Purchaser, evidence of compliance by the Property with all Permits required as
of the Closing Date hereof and such other Permits as may be necessary or
appropriate for the operation of the Property for the current and intended use
and for the transactions contemplated by this Agreement and the Lease.
(g) All necessary approvals, consents, estoppel
certificates and the like of third parties to the validity and effectiveness of
the transactions contemplated hereby shall have been obtained including any
necessary approvals or consents required under the Ground Lease.
16
(h) Purchaser shall have been successful in causing the
formation of a real estate investment trust whose interests have been sold to
the public and in connection therewith has raised capital in an amount not less
than $100,000,000.00 (the 'IPO').
(i) No portion of the Property shall have been destroyed
by fire or casualty.
(j) No condemnation, eminent domain or similar
proceedings shall have been commenced or threatened with respect to any portion
of the Property.
(k) Seller shall have provided such representations,
warranties and consents in form and substance satisfactory to Seller as may be
required by any governmental authority in connection with the IPO, including
but not limited to inclusion of financial statements, financial information and
other required information concerning Seller, or any affiliate in any United
States Securities and Exchange Commission filings.
7.2 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 as of the Closing, Purchaser, at Purchaser's
option, shall be entitled to: (a) terminate this Agreement by giving written
notice thereto to Seller, whereupon all moneys which have been delivered by
Purchaser to Seller or the Title Company (other than the Independent
Consideration) shall be immediately refunded to Purchaser and neither Purchaser
nor Seller shall have any further obligations or liabilities hereunder except
if such condition is the failure to close and fund the IPO for reasons other
than a default hereunder by Seller, the Purchaser shall reimburse Seller for
all third- party out of pocket expenses incurred by Seller in connection with
the performance of its obligations hereunder, including any reasonable actual
attorney's fees incurred by Seller in connection with the preparation,
negotiation and execution of this Agreement; (b) waive such failure of
condition and proceed to Closing hereunder without any reduction whatsoever in
the Purchase Price; or (c) pursue such other remedies as may be available to
Purchaser pursuant to Section 10.1(b) hereof.
7.3 CONDITIONS TO SELLER'S OBLIGATIONS. The obligations
of Seller to sell the Property to Purchaser 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 Purchaser
contained herein shall be in all material respects true and accurate as of the
Closing Date.
(b) Purchaser shall execute and deliver to Seller all
documents reasonably necessary to convey the Property to Purchaser in
accordance with the terms of this Agreement.
(c) No statute, rule, regulation, order, decree or
injunction shall have been enacted, entered, promulgated or enforced by any
court of competent jurisdiction or United States governmental authority which
prohibits the consummation of the transactions contemplated by this Agreement.
17
(d) All action required to be taken by Purchaser 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.
(e) Seller shall have received duly executed copies of
all required Permits and/or necessary consents and approvals in form and
substance satisfactory to Seller of third parties to the validity and
effectiveness of the transactions contemplated by this Agreement.
7.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In
the event any one or more of the conditions to Seller's obligations are not
satisfied in whole or in part as of the Closing, Seller, at Seller's option,
shall be entitled to: (a) terminate this Agreement by giving written notice
thereto to Purchaser, whereupon all moneys which have been delivered by
Purchaser to Seller or the Title Company (other than the Independent
Consideration) shall be immediately refunded to Purchaser and neither Purchaser
nor Seller 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 SELLER'S CLOSING OBLIGATIONS. Seller, Lessee and
Purchaser shall enter into a mutually acceptable escrow agreement (the 'Escrow
Agreement') with the Title Company prior to the Closing. The Escrow Agreement
will require the Title Company to close the transaction contemplated hereby in
escrow pending closing of and funding under the IPO; provided that the Closing
shall occur no later than the Termination Date. Upon execution of the Escrow
Agreement, Seller shall furnish and deliver to the Title Company for delivery
to Purchaser, pursuant to instructions to be set forth in the Escrow Agreement,
the following:
(a) The Deed, Title Commitment obligating the Title
Company to issue the Title Policy subject only to the Permitted Exceptions,
Bill of Sale, Certificate of Non-Foreign Status, Closing Certificate, the
Guaranty, the Lease Assignment, the Lease, and the Sublease, each duly executed
and acknowledged by Seller, Lessee or Sublessee, as the case may be.
(b) An affidavit, agreement and indemnity executed by
Seller and dated as of the Closing Date, stating that there are no unpaid debts
for any work that has been done or materials furnished to the Property prior to
and as of Closing and stating that Seller shall indemnify, save and protect
Purchaser and its assigns harmless from and against any and all Claims,
including courts costs and reasonable attorneys' fees related thereto, arising
out of, in connection with, or resulting from the same, up to and including the
Closing Date, in form and substance mutually acceptable to Seller and
Purchaser.
(c) Certificates of casualty and fire insurance for the
Property as required pursuant to the Lease showing Purchaser as additional
insured and loss payee thereunder, with appropriate
18
provisions for prior notice to Purchaser in the event of cancellation or
termination of such policies.
(d) Updated Search Reports, dated not more than five days
prior to Closing, evidencing no UCC-l Financing Statements or other filings in
the name of Seller with respect to the Property, except with respect to those
securing a loan which will be paid in full at Closing;
(e) Such affidavits, certificates or letters of indemnity
as the Title Company shall reasonably require in order to omit from its
insurance policy all exceptions for unfiled mechanic's, materialman's or
similar liens.
(f) Any and all transfer declarations or disclosure
documents, duly executed by the appropriate parties, required in connection
with the Assignment of Lease or the Deed by any state, county or municipal
agency having jurisdiction over the Property or the transactions contemplated
hereby.
(g) Such instruments or documents as are necessary, or
reasonably required by Purchaser or the Title Company, to evidence the status
and capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of Seller in connection with the
purchase and sale transaction contemplated hereby.
(h) An opinion of Seller's and Lessee's counsel, dated as
of the Closing Date, in form and substance reasonably satisfactory to
Purchaser, with respect to the formation and existence of Seller, the execution
of this Agreement, and all the related documents and instruments to be executed
by Seller or Lessee.
(i) An assignment of Lease transferring leasehold title
to the Property to Seller from Healthcare Real Estate Holdings II, Inc.
(i) Such other documents as are reasonably necessary to
carry out the terms and provisions of the Escrow Agreement.
8.2 PURCHASER'S CLOSING OBLIGATIONS. Upon the execution
of the Escrow Agreement, Purchaser shall deliver to the Title Company for
delivery to Seller pursuant to the terms of the Escrow Agreement, the
following:
(a) The Lease and the Assignment of Lease, duly executed
and acknowledged by Purchaser.
(b) Such instruments as are necessary, or reasonably
required by Seller or the Title Company to evidence the authority of Purchaser
to consummate the transactions contemplated hereby and to execute and deliver
the closing documents on the Purchaser's part to be delivered.
19
(c) Such other documents as are reasonably required to
carry out the terms and provisions of the Escrow Agreement.
8.3 TITLE COMPANY'S CLOSING OBLIGATIONS. Upon the
closing of the IPO and disbursement of funds thereunder, the Title Company
shall deliver to Seller the Purchase Price together with the items and
documents specified in Section 8.2 and to Purchaser the items and documents
specified in Section 8.1. In the event the IPO does not close prior to June
30, 1994, the Title Company will return the items specified in Section 8.1 to
Seller and the items specified in Section 8.2 to Purchaser, unless otherwise
agreed to by the parties in writing.
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 Lessee shall be obligated to pay such items
under the terms of the Lease.
9.2 CLOSING COSTS. Purchaser shall pay its own
attorneys' fees. Seller shall pay all other costs of closing, including
without limitation all title examination fees and premiums for the Title
Policy, the Search Reports, the Survey, any environmental reports, any
appraisals, any and all state, municipal or other documentary or transfer taxes
payable in connection with the delivery of any instrument or document provided
in or contemplated by this Agreement or any agreement or commitment described
or referred to herein, and 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.
ARTICLE X
DEFAULT AND REMEDIES
10.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
(a) Seller's Default. Seller shall be deemed to be in
default hereunder upon the occurrence of any one or more of the following
events: (i) any of Seller's warranties or representations set forth herein
shall be untrue in any material aspect when made or at Closing; or (ii) Seller
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 and shall fail to cure such
default within ten Business Days following written notice from Purchaser to
Seller.
(b) Purchaser's Remedies. In the event Seller shall be
deemed to be in default hereunder Purchaser may, as its sole remedies: (i)
terminate this Agreement by written notice
20
delivered to Seller on or before the Closing; or (ii) in the event that Seller
shall willfully refuse to close the sale and only in such event, enforce
specific performance of this Agreement against Seller including Purchaser's
reasonable costs and attorneys fees in connection therewith. It is understood
and agreed that termination or specific performance as provided in (i) and (ii)
above constitute Purchaser's sole remedy against Seller, and that Purchaser
shall not be entitled to seek monetary damages from Seller or assert any other
remedy against Seller.
10.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
(a) Purchaser's Default. Purchaser shall be deemed to be
in default hereunder upon the occurrence of any one or more of the following
events: (i) any of Purchaser's warranties or representations set forth herein
shall be untrue in any material respect when made or at Closing; or (ii)
Purchaser 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 and shall fail to cure such default
within ten Business Days following written notice from Seller to Purchaser.
(b) Seller's Remedy. In the event Purchaser shall be
deemed to be in default hereunder, Seller, as Seller's sole and exclusive
remedy for such default, shall be entitled to terminate this Agreement and all
rights of Purchaser hereunder and to retain the Independent Consideration and
receive from Purchaser a sum equal to all third party out-of-pocket expenses
incurred by Seller in performing its obligations under this Agreement including
any reasonable, actual attorneys' fees incurred by Seller in connection with
the preparation, negotiation and execution of this Agreement and the
performance by Seller of its obligations hereunder, it being agreed between
Purchaser and Seller that such sum shall be liquidated damages for a default of
Purchaser 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 Seller and Purchaser contained
in this Agreement, to the extent not performed at the Closing, shall survive
the Closing only for one year after the Closing Date and shall not be deemed to
merge upon the acceptance of the Deed and the Assignment of Lease by Purchaser.
11.2 NOTICES. All notices, requests and other
communications under this Agreement shall be in writing and shall be delivered
in person, sent by certified mail, return receipt requested or delivered by
recognized expedited delivery service, addressed as follows:
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If to Purchaser:
CRESCENT CAPITAL TRUST, 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 Seller:
NORTHLAKE CENTER FOR OUTPATIENT SURGERY, L.P.
c/o Surgical Health Corporation
990 Hammond Drive
Suite 300
Atlanta, Georgia 30328
Attention: Gary W. Rasmussen, Senior Vice President - Finance
With a copy to:
Mr. Mark C. Rusche
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
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 receipt at such address, or if mailed, upon deposit of a
copy in a post office of official depository of the United States Postal
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
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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.
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 EXTENSION OF DATES. Notwithstanding anything to the
contrary contained in this Agreement, if Seller shall fail to deliver any
document or item required pursuant to any of the terms and provisions of
Article IV and/or Article V within the applicable time period required,
Purchaser, at its option, shall have the right to extend the date of expiration
of the Review Period, and correspondingly the date of Closing, by the number of
days elapsing from the date such items were required to be delivered and the
date such items were actually delivered to Purchaser; provided that Purchaser
shall have given Seller written notice of the missing items within 15 days of
the Effective Date (as provided in Section 5.2) and provided Purchaser shall
give Seller notice of its intent to extend such dates within five Business Days
following Seller's receipt of the last of the items set forth on Purchaser's
notice letter. Nothing herein shall diminish Seller's obligation to timely
furnish such items.
11.8 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.
11.9 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 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
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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.
11.10 OFFER AND ACCEPTANCE. This Agreement shall
automatically terminate at 5:00 pm. on June 1, 1994, unless, prior to such
time, Purchaser has returned to Seller, and Seller shall have returned to
Purchaser, two fully-executed copies of this Agreement.
11.11 BROKERS. Purchaser and Seller 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. Purchaser
and Seller 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.
11.12 RISK OF LOSS. Until the Closing Date, the risk of
loss of any portion of the Property shall be solely that of Seller. Risk of
loss shall be that of Purchaser from and after the Closing Date, at which time
Seller shall deliver to Purchaser possession of the Property.
11.13 NO ASSUMPTION OF LIABILITIES. Purchaser shall not
assume any of the existing liabilities, indebtedness, commitments or
obligations of any nature whatsoever (whether fixed or contingent) of Seller in
respect of the Property or otherwise, except those expressly assumed herein.
11.14 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.
[Signatures Begin On Next Page]
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EXECUTED to be effective as of the Effective Date.
PURCHASER:
CAPSTONE CAPITAL TRUST, INC.,
a Maryland corporation
/s/ John W. McRoberts
--------------------------------------
John W. McRoberts
President
Date May 27, 1994
----------------------------------
Purchaser's Tax Identification Number:
63-1115479
--------------------------------------
SELLER:
NORTHLAKE CENTER FOR OUTPATIENT
SURGERY, L.P.,
a Georgia limited partnership
By SHC Northlake, Inc.,
Georgia corporation
Its general partner
By /s/
------------------------------------
Its Vice President
-----------------------------------
Date 5-27-94
----------------------------------
Seller's Tax Identification Number:
58-2010069
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Agreement of Sale and Purchase (Tucker, GA) - Northlake Center for Outpatient Surgery LP and Crescent Capital Trust Inc.
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