EXHIBIT 10.4
CONTRACT OF ACQUISITION
BY AND BETWEEN
WINDROSE MEDICAL PROPERTIES TRUST
("BUYER")
AND
PARK MEDICAL ASSOCIATES, LLC
("SELLER")
DATED THE 7TH DAY OF MAY, 2002
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS..................................................1
1.1 Definitions........................................................1
ARTICLE 2. ▇▇▇▇▇▇▇ MONEY................................................5
2.1 ▇▇▇▇▇▇▇ Money Deposit..............................................5
2.2 Disposition of ▇▇▇▇▇▇▇ Money.......................................6
ARTICLE 3. CLOSING......................................................7
3.1 Closing............................................................7
ARTICLE 4. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS..............7
4.1 Conditions to the Buyer's Obligations to Close.....................7
4.2 Failure of Conditions to Buyer's Obligations.......................9
ARTICLE 5. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.................9
5.1 Conditions Precedent to Seller's Obligation to Close...............9
5.2 Failure of Conditions to Seller's Obligations.....................10
ARTICLE 6. PROVISIONS WITH RESPECT TO CLOSING..........................10
6.1 Closing Costs.....................................................10
6.2 Apportionment of Taxes, Income and Expenses.......................10
6.3 Seller's Closing Deliverables.....................................11
6.4 Other Deliverables to Buyer.......................................12
6.5 Buyer's Closing Deliverables......................................12
ARTICLE 7. INSPECTION PERIOD...........................................13
7.1 Inspection Period.................................................13
7.2 Preliminary Inspection Report.....................................13
7.3 Seller's Preliminary Inspection Report Reply......................14
7.4 Due Diligence Documentation.......................................15
7.5 Land Suitability Studies..........................................15
7.6 Inspection Rights and Obligations of Buyer........................15
7.7 Inspection Obligations of Seller..................................16
7.8 Governmental Authorities..........................................16
7.9 Utility and Other Service.........................................16
7.10 Audit Requirements................................................16
ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS...................17
8.1 Representations and Warranties of Seller..........................17
8.2 Covenants of Seller...............................................24
ARTICLE 9. REPRESENTATIONS AND WARRANTIES OF BUYER.....................25
ARTICLE 10. DAMAGE, DESTRUCTION OR CONDEMNATION.........................26
10.1 Risk of Loss......................................................26
10.2 Condemnation......................................................27
ARTICLE 11. DEFAULT.....................................................27
11.1 Default by Seller and Buyer's Remedies............................27
11.2 Default by Buyer and Seller's Remedies............................27
ARTICLE 12. SURVIVAL AND INDEMNIFICATION................................28
12.1 Survival..........................................................28
12.2 Indemnification...................................................28
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ARTICLE 13. MISCELLANEOUS...............................................29
13.1 Right of Assignment...............................................29
13.2 Notices...........................................................29
13.3 Real Estate Agents................................................30
13.4 Time for Performance..............................................31
13.5 Entire Agreement..................................................31
13.6 Applicable Law....................................................31
13.7 Captions..........................................................31
13.8 Binding Effect....................................................31
13.9 Waiver of Conditions..............................................31
13.10 Multiple Counterpart Originals....................................31
13.11 Attorney's Fees...................................................31
13.12 Severability......................................................32
13.13 Construction of Agreement.........................................32
13.14 IRS Reporting Requirements........................................32
13.15 Calculation of Time...............................................32
13.16 No Recordation....................................................32
13.17 Material Consideration............................................32
EXHIBITS
EXHIBIT A PROPERTY DESCRIPTION
EXHIBIT B DUE DILIGENCE DOCUMENTS
EXHIBIT C PRELIMINARY LEGAL DESCRIPTION OF LAND
EXHIBIT D FORM OF ON-SITE MAINTENANCE AGREEMENT
EXHIBIT E ▇▇▇▇ OF SALE
EXHIBIT F CERTIFICATE OF NON-FOREIGN STATUS
EXHIBIT G SELLER'S CLOSING CERTIFICATE
EXHIBIT H SELLER COUNSEL LEGAL OPINION
EXHIBIT I ASSIGNMENT OF LEASES
EXHIBIT J ESTOPPEL CERTIFICATE
EXHIBIT K ASSIGNMENT OF BUSINESS CONTRACTS, WARRANTIES AND COLLATERAL
EXHIBIT L BUYER'S CLOSING CERTIFICATE
EXHIBIT M BUYER COUNSEL LEGAL OPINION
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CONTRACT OF ACQUISITION
THIS CONTRACT OF ACQUISITION (this "Agreement") for the acquisition of
certain Property (as herein defined) is made and entered into by and between
WINDROSE MEDICAL PROPERTIES TRUST, a Maryland REIT, and/or its assigns
("WINDROSE" or "BUYER"), and PARK MEDICAL ASSOCIATES, LLC, a North Carolina
limited liability company ("SELLER").
RECITALS
WHEREAS, the parties hereto desire that the Seller shall transfer to
Buyer and Buyer shall acquire, on the Closing Date (hereinafter defined), a fee
simple interest in the Property (as defined herein and described on EXHIBIT A);
all in accordance with the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller agree as follows:
ARTICLE 1. DEFINITIONS
1.1 DEFINITIONS.
As used in this Agreement and any Exhibits, the terms listed below
shall have the following meanings:
1.1.1 "Affiliate" shall mean any Person which, directly or indirectly
(including through one or more intermediaries), controls or is controlled by or
is under common control with any other Person, including any subsidiary of a
Person. For purposes of this definition and the definition of "Controlling
Person" below, the term "control" (including the correlative meanings of the
terms "controlled by" and "under common control with"), as used with respect to
any Person, shall mean the possession, directly or indirectly (including through
one or more intermediaries), of the power to direct or cause the direction of
the management and policies of such Person, through the ownership of voting
securities, partnership interests or other equity interests. Without limiting
the generality of the foregoing, when used with respect to any corporation, the
term "Affiliate" shall also include (i) any Person which owns, directly or
indirectly (including through one or more intermediaries), fifty percent (50%)
or more of any class of security of such corporation, (ii) any subsidiary of
such corporation and (iii) any subsidiary of a Person described in clause (i).
1.1.2 "Appraisal" shall mean an MAI appraisal of the Real Property
prepared for Buyer and reasonably acceptable to Buyer showing a value at least
equal to the Acquisition Price for the Property.
1.1.3 "Appurtenances" shall mean all rights, covenants, licenses,
privileges, hereditaments and easements appurtenant to the Land, which are owned
by Seller or required for the use of the Real Property as presently conducted,
including, without limitation, all mineral, oil, gas and other hydrocarbon
substances on and under the Land, as well as all development rights, air rights,
water, water rights and water stock relating to the Land and any other
easements, rights-of-way, rights of ingress or egress or other interests in, on
or to any land, highway, street, road or avenue in, on, across, abutting or
adjoining the Land and any strips and gores adjacent to or lying between the
Land and any adjacent real property and any appurtenances used in connection
with the beneficial use and enjoyment of the Land and all right, title and
interest, if any, of the Seller in any land lying in the bed of any street
opened or proposed in front of or adjoining the Real Property to the center line
thereof.
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1.1.4 "Assessments" shall mean all levies or charges of every kind and
nature, including, but not limited to, assessments for public improvements or
benefits, for any easement or agreement maintained for the benefit of the
Property, association fees, permits, inspection and license fees, general or
special assessments, water, sewer and other utility levies and charges, ground
rents or other rents, excise tax levies, and all other governmental charges of
every kind and nature, whether general or special, ordinary or extraordinary, or
foreseen or unforeseen, in connection with the Property.
1.1.5 "Books and Records" shall mean all books and records of the Seller
related to the ownership, development, leasing or operation of the Real
Property, including, but not limited to, all equipment manuals and
specifications, sales and leasing records, tax bills and records, current and
historical accounting records, property employee records, inventory and
depreciation schedules and correspondence relating to the Property. In lieu of
original documents, Seller may provide true copies of any Books and Records. As
used herein, "Books and Records" shall not include any proprietary materials of
Seller or any books and records maintained by Seller with respect to any
separate business operated by Seller.
1.1.6 "Business Day(s)" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which national banks in the City of
New York, New York are authorized, or obligated, by law or executive order, to
close.
1.1.7 "Buyer's Intended Use" means the current use of the Property as a
medical office building.
1.1.8 "Claim" shall mean any obligation, liability, lien, 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.
1.1.9 "Closing" shall mean the consummation of the transactions
contemplated by this Agreement.
1.1.10 "Closing Date" shall mean the actual day on which the
transactions contemplated by this Agreement are closed with the transfer of
title to the Property and delivery of the Acquisition Price.
1.1.11 "Controlling Person" shall mean (i) any Person(s) which, directly
or indirectly (including through one or more intermediaries), controls the
subject Person and would be deemed an Affiliate of the subject Person, including
any partners, shareholders, principals, members, trustees and/or beneficiaries
of any such Person(s) to the extent the same control the subject Person and
would be deemed an Affiliate of the subject Person, and (ii) any Person(s) which
controls, directly or indirectly (including through one or more intermediaries),
any other Controlling Person(s) and which would be deemed an Affiliate of any
such Controlling Person(s).
1.1.12 "Due Diligence Documentation" shall mean the information to be
provided to Buyer by Seller pursuant to SECTION 7.4 and as set forth on EXHIBIT
B.
1.1.13 "Effective Date" shall mean the date on which this Agreement is
signed and all changes initialed by Seller and Buyer and the ▇▇▇▇▇▇▇ Money has
been deposited by Buyer pursuant to SECTION 2.1.
1.1.14 "Encumbrance Documents" shall mean copies of each document listed
as an exception to title in the Title Commitment.
1.1.15 "Environmental Laws" shall mean any and all federal, state,
municipal and local laws, statutes, ordinances, rules, regulations, guidances,
policies, orders, decrees, judgments, whether statutory
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or common law, as amended from time to time, now or hereafter in effect, or
other legal requirement promulgated, in effect or pertaining to the indoor or
outdoor environment, public health and safety, occupational health or safety or
industrial hygiene, including the use, generation, manufacture, production,
storage, release, discharge, disposal, handling, treatment, removal,
decontamination, cleanup, transportation or regulation of any Hazardous
Material, including the 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 ("▇▇▇▇"), 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, the Federal Insecticide, Fungicide, Rodenticide Act, and the Occupational
Safety and Health Act and all state or federal laws governing underground
storage tanks.
1.1.16 "Environmental Reports" shall mean all Phase I environmental
reports or other environmental reports (including those prepared by or for any
Governmental Authority, insurance carrier, lender or prospective lender or
prospective buyer) with respect to the Property and in the possession of Seller
or reasonably available to Seller without material cost or expense.
1.1.17 "Governmental Authorities" shall mean the United States, the
state, county, parish, city and local political subdivisions in which the Real
Property is located or any other private, charitable or quasi-governmental
entity (including any board of fire underwriters) which exercise jurisdiction
over the Real Property with respect to the Legal Requirements (as herein
defined) or the construction or use of the Real Property including, but not
limited all zoning, use, construction, occupancy, environmental, access
requirements and medical licensing, permitting, certification, licensure or
approval rights for all uses contemplated by Buyer or any Tenant Leases and any
court administrator, agency, department, commission, board, bureau or
instrumentality or any of them which exercise such jurisdiction over the Real
Property or the Buyer's Intended Use of the Real Property.
1.1.18 "Hazardous Materials" shall mean any substance, including without
limitation, asbestos or any substance containing asbestos and deemed hazardous
under any Environmental Laws, the group of organic compounds known as
polychlorinated biphenyls, flammable explosives, radioactive materials,
infectious wastes, biomedical and medical wastes, chemicals known to cause
cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions
or related materials and any items included in the definition of hazardous or
toxic wastes, materials or substances under any Environmental Law.
1.1.19 "Improvements" shall mean all improvements, structures and
buildings including without limitation, Fixtures, landscaping, signage, parking
lots and structures, roads, drainage systems, all utility structures (whether
above or below ground), equipment systems and other infrastructure improvements,
owned by Seller and located on the Real Property as of the Closing Date.
1.1.20 "Land" means the Real Property insured by the Title Policy (as
herein defined) subject to the Permitted Exceptions, together with all
covenants, licenses, privileges and Appurtenances thereto belonging. The
preliminary legal description of the Land is set forth on EXHIBIT C.
1.1.21 "Legal Requirements" shall mean all federal, state, county,
municipal and other governmental statutes, laws (including Environmental Laws),
rules, policies, guidance, codes, orders, authorizations, regulations,
ordinances, permits, licenses, covenants, conditions, restrictions, judgments,
decrees and injunctions affecting: (a) (i) the Real Property or the
construction, use or alteration thereof; (ii) the Seller's interest in the Real
Property prior to the Closing; and (iii) Seller's Personal Property or the use
or alteration thereof, whether now in force or hereafter enacted prior to
Closing; or (b) (i) that
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requires repairs, modifications or alterations in or to the Real Property, (ii)
in any way Materially adversely affect the use and enjoyment thereof, or (iii)
regulate the transport, handling, use, storage or disposal or require the
cleanup or other treatment of any Hazardous Material; or (iv) relate to all
zoning, use, construction, occupancy, environmental, health and safety,
industrial hygiene, access, disabled or handicapped persons and medical services
requirements, licensing, permitting, certification, licensure or approval
jurisdiction for the Real Property. Without limiting the foregoing, Legal
Requirements shall include all covenants, agreements, charters, restrictions and
encumbrances contained in any instruments, either of record or known to Seller,
affecting the Property.
1.1.22 "Licenses" shall mean all permits, licenses, approvals,
authorizations, entitlements and other governmental and quasi-governmental
authorizations (including, without limitation, certificates of occupancy),
required in connection with the ownership, operation or maintenance of the Real
Property; but specifically excluding any operating licenses held by Seller with
respect to any separate business conducted by the Seller.
1.1.23 "Material" and "Materially" shall mean a condition,
noncompliance, defect or other fact which would: (a) cost, in the aggregate in
excess of Fifty Thousand Dollars ($50,000.00), and, with respect to any single
defect or fact, would cost in excess of Twenty five Thousand Dollars
($25,000.00), to correct, cure, repair or otherwise bring such condition into
compliance; or (b) result in a loss to Buyer or a reduction in the value of any
of the Property, in the aggregate, in excess of Fifty Thousand Dollars
($50,000.00), and, with respect to any single defect or fact, in excess of
Twenty Five Thousand Dollars ($25,000.00); (c) prevents the uninterrupted use of
the Real Property as presently used.
1.1.24 "Parties" shall mean collectively Buyer and Seller. "Party" shall
mean either Buyer or Seller, as applicable.
1.1.25 "Permitted Exceptions" shall mean (a) only those title exceptions
or defects (including all encumbrances, restrictive covenants, governmental
zoning and use requirements or any other exception to free and unencumbered fee
simple title and use of the Property) that have been approved in writing by
Buyer in the Preliminary Inspection Report (as herein defined); (b) the Mortgage
(as herein defined), if the Mortgagee consents to assumption of the Mortgage ,
and (c) liens, if any, for taxes, assessments and governmental charges not yet
past due and payable or delinquent.
1.1.26 "Person" shall mean any natural person, partnership, trust,
estate, association, limited liability company, corporation, custodian, nominee,
governmental instrumentality or agency, body politic or any other entity in its
own or any representative capacity.
1.1.27 "Personal Property" shall mean all Engineering and Inspection
Materials, Intangible Property, furnishings, equipment, tools, machinery,
appliances and all other tangible personal property (specifically excluding the
Fixtures and Seller's Excluded Assets) which are owned by Seller and located on
the Real Property on the Closing Date.
1.1.28 "Property" shall mean collectively the Land, Improvements, Books
and Records, Business Contracts, Collateral, Warranties the Personal Property,
and the Tenant Leases (all as herein defined) and as may be further described on
EXHIBIT A.
1.1.29 "Real Property" shall mean the Land and the Improvements.
1.1.30 "SEC" shall mean the Securities and Exchange Commission.
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1.1.31 "Seller Parties" means any Affiliate of Seller and any officers,
directors, partners and employees of Seller or any Affiliate of Seller, and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc., its officers, directors, shareholders, and
employees.
1.1.32 "Taxes" shall mean all federal, state and local governmental
taxes, including, but not limited to real estate taxes, and transit or transit
district taxes or assessments, ad valorem, franchise and excise taxes, sales,
use, single business, gross receipts, transaction privilege, rent or similar
taxes of every kind or nature affecting the Property, (including any rental or
similar taxes and license, building, occupancy, permit or similar fees levied in
lieu of or in addition to general real or personal property taxes). Taxes shall
not include any federal or state income tax, any income tax resulting from the
sale or transfer of the Property by the Seller, or any inheritance, gift or
estate taxes of Seller.
1.1.33 "Tenant" shall mean any lessee under the Tenant Leases.
1.1.34 "Tenant Leases" mean all leases, subleases, occupancy agreements,
rental agreements (including lease or rental applications) that are currently in
effect or executed by Seller which commence after the Effective Date and grant a
possessory interest in any space in the Real Property or otherwise affect the
Real Property.
1.1.35 "Title Commitment" shall mean, with respect to the Property, a
current commitment issued by the Title Company to Buyer pursuant to which the
Title Company shall commit to issue the Title Policy to Buyer in accordance with
the provisions of this Agreement, including such Endorsements (as herein
defined) as may be reasonably requested by Buyer and subject only to the
Permitted Exceptions all as set forth by Buyer in the Final Inspection Report.
Any extended coverage, endorsements, modifications or amendments (collectively,
the "Endorsements") to the Title Policy may be obtained by Buyer at Buyer's sole
cost and expense.
1.1.36 "Title Company" shall mean First American Title Company, its
affiliates or such other title insurance company, chosen by Buyer, licensed in
the state in which the Land is located.
1.1.37 "Title Policy" shall mean a 1992 ALTA Owner's Policy of Title
Insurance for the Real Property, together with such endorsements as may be
reasonably requested by Buyer, issued by the Title Company, with a liability
amount equal to the Acquisition Price, dated as of the Closing Date, insuring
Buyer's fee simple title to the Real Property to be good and indefeasible, in
accordance with the Title Commitment.
1.1.38 "Windrose IPO" shall mean an initial public offering of shares of
stock in Windrose, registered and offered to the public in accordance with the
rules and regulations of the SEC and all state agencies having jurisdiction with
respect to such offering.
ARTICLE 2. ▇▇▇▇▇▇▇ MONEY
2.1 ▇▇▇▇▇▇▇ MONEY DEPOSIT.
The sum of Fifty Thousand and No/100 Dollars ($50,000.00) (the
"▇▇▇▇▇▇▇ Money Deposit") shall be paid by Buyer (via wire transfer) to the Title
Company within five (5) Business Days after the Effective Date. If Buyer fails
to timely remit the Deposit within the time period provided, Seller may, at its
option, terminate this Agreement by delivering written notice to Buyer. Buyer
shall not undertake any inspection of the Property until Seller deposits the
▇▇▇▇▇▇▇ Money. If Seller delivers such a termination notice, this Agreement
shall terminate and neither Seller nor Buyer shall have any further rights or
obligations pursuant to this Agreement; provided, however, Buyer shall return
all information supplied by Seller in the Schedules and Exhibits to this
Agreement or, in the alternative,
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certify in writing to Seller that all such materials have been destroyed. The
▇▇▇▇▇▇▇ Money Deposit and any interest thereon are hereinafter referred to as
"▇▇▇▇▇▇▇ Money". The Title Company shall deposit the ▇▇▇▇▇▇▇ Money Deposit into
an interest-bearing money market account maintained at a federally insured bank
located in Charlotte, North Carolina, approved by Buyer and Seller. All interest
earned shall be reported to the Internal Revenue Service as the income of Buyer.
The Buyer shall promptly execute such documents as the Title Company may
reasonably request in order to properly report such income. Such account shall
have no penalty for early withdrawal and Buyer accepts all risks with regard to
the account, specifically including the risk of closure of such bank by state
and/or federal regulators, and all losses occasioned thereby. If the transaction
contemplated hereby is consummated in accordance with the terms and provisions
hereof, the ▇▇▇▇▇▇▇ Money shall be paid, at the option of the Buyer, (a) to
Seller and credited against the Acquisition Price; or (b) returned to Buyer. If
the transaction is not so consummated, the ▇▇▇▇▇▇▇ Money shall be held and
delivered by the Title Company as hereinafter provided.
2.2 DISPOSITION OF ▇▇▇▇▇▇▇ MONEY.
2.2.1 TERMINATION DURING INSPECTION PERIOD. In the event of a
termination of this Agreement by either Seller or Buyer during the Inspection
Period (as herein defined), such Party terminating the Agreement shall send a
copy of such termination to the Title Company and the Title Company shall
deliver the ▇▇▇▇▇▇▇ Money to Buyer upon receipt by the Title Company of written
certification by Buyer to Seller that Buyer has returned to Seller (i) all Due
Diligence Documentation; and (b) all information provided by Seller as part of
the Schedules and Exhibits to this Agreement; or, in the alternative, certifies
to the Seller that all such materials have been destroyed. A copy of Buyer's
certification shall be delivered to Seller.
2.2.2 TERMINATION AFTER INSPECTION PERIOD BY BUYER. In the event of a
termination of this Agreement by Buyer pursuant to SECTION 4.2 or SECTION 11.1,
Buyer shall send a copy of such termination to the Title Company with Buyer's
written certification to Seller that Buyer has returned to Seller (i) all Due
Diligence Documentation; and (b) all information provided by Seller as part of
the Schedules and Exhibits to this Agreement; or, in the alternative, certifies
to Seller that all such materials have been destroyed. A copy of Buyer's notice
shall be delivered to Seller. The Title Company shall deliver the ▇▇▇▇▇▇▇ Money
to Buyer on the tenth (10th) Business Day following delivery of such notice from
Buyer unless before said tenth (10th) Business Day after delivery of Buyer's
notice the Seller delivers to the Title Company written notice that it disputes
the right of the Buyer to receive the ▇▇▇▇▇▇▇ Money. In such event the Title
Company shall interplead the ▇▇▇▇▇▇▇ Money into a court of competent
jurisdiction in Mecklenburg County, North Carolina. All attorneys' fees and
costs and Title Company's costs and expenses incurred in connection with such
interpleader shall be assessed against the Party which is not awarded the
▇▇▇▇▇▇▇ Money or if the ▇▇▇▇▇▇▇ Money is distributed in part to both parties,
then in inverse proportion of such distribution. Notwithstanding the foregoing,
in the event the termination by Buyer is as a result solely of the failure of
the closing and funding of the Windrose IPO as set forth in SECTION 4.1.13, then
Buyer shall have the right to terminate this Agreement, but the ▇▇▇▇▇▇▇ Money
shall be paid to Seller.
2.2.3 TERMINATION AFTER INSPECTION PERIOD BY SELLER. In the event of a
termination of this Agreement by Seller pursuant to SECTION 11.2, Seller shall
send a copy of such termination to the Title Company. A copy of Seller's notice
shall be delivered to Buyer. The Title Company shall deliver the ▇▇▇▇▇▇▇ Money
to Seller on the tenth (10th) Business Day following delivery of such notice
from Seller unless before said tenth (10th) Business Day after delivery of
Seller's notice the Buyer delivers to the Title Company written notice that it
disputes the right of the Seller to receive the ▇▇▇▇▇▇▇ Money. In
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such event the Title Company shall interplead the ▇▇▇▇▇▇▇ Money into a court of
competent jurisdiction in Mecklenburg County, North Carolina. All attorneys'
fees and costs and Title Company's costs and expenses incurred in connection
with such interpleader shall be assessed against the Party which is not awarded
the ▇▇▇▇▇▇▇ Money or if the ▇▇▇▇▇▇▇ Money is distributed in part to both
parties, then in inverse proportion of such distribution.
ARTICLE 3. CLOSING
3.1 CLOSING.
Subject to satisfaction of all conditions precedent to Buyer's and
Seller's obligations to purchase and sell the Property, in accordance with the
terms and conditions of this Agreement, the Closing shall occur on the earlier
of August 30, 2002 or fifteen (15) days following the funding of the Windrose
IPO. The Closing shall be held at the offices of Seller's counsel or at such
location as may otherwise be agreed upon by the Parties. Neither Party shall be
obligated to attend Closing and may submit the documents required of it by mail,
Federal Express, or other delivery service.
ARTICLE 4. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS
4.1 CONDITIONS TO THE BUYER'S OBLIGATIONS TO CLOSE.
The obligations of Buyer to purchase the Property and to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, prior to or at the Closing, of each of the following conditions.
4.1.1 REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of Seller set forth in ARTICLE 8 and in any certificates delivered
pursuant hereto shall be true at all times prior to and as of the Closing.
4.1.2 COMPLIANCE WITH AGREEMENTS. Seller shall have performed and
complied with all of the covenants, agreements and conditions to be performed
and complied with by Seller prior to or at the Closing.
4.1.3 STATUS OF SELLER. Seller shall not be in receivership or have made
any assignment for the benefit of creditors, or admit in writing its inability
to pay its debts as they mature, or have been adjudicated a bankrupt, or have
filed or had filed against it either a petition in voluntary bankruptcy or a
petition seeking reorganization under the federal bankruptcy law or any other
similar law or statute of the United States or any state, which remains
outstanding as of the Closing Date.
4.1.4 MATERIAL CHANGES. No Material change shall have occurred with
respect to the condition, financial or otherwise, of the Property or Seller.
There shall have been no Material damage to the Property which shall interfere
with the operation of the Property nor shall any condemnation or eminent domain
proceedings be pending with respect thereto.
4.1.5 TRANSFER OF PROPERTY. Seller shall sell, convey, assign, transfer
and deliver to Buyer (i) marketable and indefeasible fee simple interest in all
the Land and Improvements, subject only to the Permitted Exceptions, and (ii)
good, marketable and unencumbered title to the Property (other than the Land and
Improvements), subject only to the Permitted Exceptions.
4.1.6 CONVEYANCE OF LAND AND IMPROVEMENTS. The Deed or other conveyance
of the Land and Improvements shall be sufficient to convey good and marketable
fee simple title in form and substance required to cause the Title Company to
issue the Title Policy in accordance with the Title Commitment, subject only to
the Permitted Exceptions and shall be duly executed (and where required by law,
witnessed by the appropriate number of witnesses) and acknowledged and delivered
to Buyer in
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recordable form. Such Deed or other conveyance shall include the appropriate
state and/or county real estate transfer tax declaration, certificate of real
estate value or other affidavit required to be completed under the Legal
Requirements. In addition, the conveyance to Buyer of the Real Property shall
include all right, title and interest of the Seller in and to any Appurtenances.
The Seller will execute or obtain and deliver to Buyer, on the applicable
Closing Date on demand, all proper instruments for the conveyance of such title.
4.1.7 COMPLIANCE WITH GOVERNMENTAL AUTHORITIES. The Property shall be
conveyed to Buyer free of all Material violations of applicable law or municipal
ordinances or of any rule or regulation of any federal, state, or local
Governmental Authority having jurisdiction over the Property or the use thereof
for the business presently conducted thereon. The zoning ordinance, general plan
and all other land use regulations of the cognizant municipal jurisdiction and
all private covenants, conditions and restrictions, if any, affecting the
Property shall permit the transfer and use of the Property (and reconstruction
and resumption of use of the Property in the event of damage or destruction
thereof or cessation of use thereof) for the business presently conducted
thereon as a matter of right, for an unlimited time period, and specifically not
merely as a legal non-conforming use or any other status which would by its
terms or by operation of law limit the duration of such use or the right to
rebuild and resume use of the Property for the business presently conducted
thereon in the event of damage, destruction or cessation of use of the Property
for any reason.
4.1.8 HAZARDOUS MATERIALS. The Property shall be conveyed free of
asbestos and other Hazardous Materials except such Hazardous Materials as are
normally present in facilities of the type of presently operated in the Property
provided such Hazardous Materials are being handled, stored, treated and
disposed of in accordance with all Environmental Laws.
4.1.9 ASSUMPTION OF MORTGAGE. The Mortgagee shall consent to the
assumption by Buyer of the Mortgage at the balance of the Mortgage as of the
Closing as shown by the amortization table attached hereto as SCHEDULE 8.1.22
upon terms and conditions reasonably acceptable to Buyer and upon the current
terms and conditions of the Mortgage, subject only to a 1% assumption fee and
other costs not to exceed $15,000. Buyer shall not be obligated as a condition
of such assumption to cause the Mortgagee to release or return any guarantees,
indemnification agreements or deposits made by Seller or Seller's Parties or any
other person.
4.1.10 DELIVERY OF CLOSING DOCUMENTS. Buyer shall have received all of
the deliverables to be delivered to Buyer at Closing as set forth in SECTION 6.3
and SECTION 6.4 in form and substance reasonably acceptable to Buyer and Buyer's
counsel.
4.1.11 MEDICARE AND MEDICAID COMPLIANCE. In the event that any of the
Tenants use of the Property, as a result of the type of medical services
provided by such tenants, are, under applicable Legal Requirements, required to
have a certificate of need or other similar license or other Governmental
Approval (including, but not limited to approval to receive reimbursements from
the Medicare and Medicaid Programs for covered health care services), then Buyer
shall have received evidence reasonably satisfactory to it that such Tenants, if
any, are duly licensed.
4.1.12 THIRD PARTY APPROVALS. All necessary approvals and consents of
third parties to the validity, enforceability and effectiveness of the
transactions contemplated hereby have been obtained.
4.1.13 WINDROSE IPO. The Windrose IPO shall be closed and funded.
4.1.14 FINAL INSPECTION REPORT. Seller's compliance with and
satisfaction of all remedies, actions and requirements of Seller as set forth in
the Final Inspection Report (as herein defined).
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4.2 FAILURE OF CONDITIONS TO BUYER'S OBLIGATIONS.
In the event any one or more of the conditions to Buyer's
obligations to close on the transactions contemplated hereunder are not
completely satisfied prior to or as of the Closing, Buyer, at Buyer's option and
provided Buyer is not in default of its obligations hereunder, may: (a)
terminate this Agreement by giving written notice of termination to Seller and
the Parties shall have no further obligation to each other under this Agreement,
other than the Buyer's Inspection Obligations (defined in SECTION 7.6), which
shall continue until fully performed, and the ▇▇▇▇▇▇▇ Money shall be returned to
Buyer; or (b) proceed to Closing. Provided, however, if the only condition to
Buyer's obligation to close on the transactions that remains unsatisfied as of
the Closing, is the closing and funding of the Windrose IPO as set forth in
SECTION 4.1.13, then Buyer shall have the right to terminate this Agreement, but
the ▇▇▇▇▇▇▇ Money shall be paid to Seller.
ARTICLE 5. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
5.1 CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE.
The obligations of Seller to sell the Property and to consummate
the transactions contemplated by this Agreement are subject to the satisfaction,
prior to or at the Closing, of each of the following conditions.
5.1.1 PAYMENT OF ACQUISITION PRICE. At Closing, Buyer shall pay to
Seller the Acquisition Price (as herein defined). For purposes of this
Agreement, the Acquisition Price shall mean the total consideration to be paid
by Buyer to Seller at Closing for the Property, subject to the terms and
conditions of this Agreement. The Acquisition Price shall be an amount equal to
Five Million, Eight Hundred, and Fifty Thousand Dollars ($5,850,000) adjusted as
set forth herein. The Acquisition Price shall be paid as follows: (a) assumption
of that certain Mortgage (as herein defined) subject to the limitations set
forth in SECTION 4.1.9; and (b) the balance payable to Seller in cash, wired
funds or a certified or cashier's check payable to the order of the Seller
representing the cash portion of the Acquisition Price, adjusted for the
prorations and adjustments provided for herein.
5.1.2 REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of Buyer set forth in ARTICLE 9 and in any certificates delivered
pursuant hereto shall be true at all times prior to and as of the Closing.
5.1.3 COMPLIANCE WITH AGREEMENTS. Buyer shall have performed and
complied with all of the covenants, agreements and conditions to be performed
and complied with by Buyer prior to or as of the Closing.
5.1.4 STATUS OF BUYER. Neither Buyer, nor any Affiliate of Buyer, shall
be in receivership or have made any assignment for the benefit of creditors, or
admitted in writing its inability to pay its debts as they mature, or have been
adjudicated a bankrupt, or have filed or had filed against it either a petition
in voluntary bankruptcy or a petition seeking reorganization under the federal
bankruptcy law or any other similar law or statute of the United States or any
state, which remains outstanding as of the Closing Date.
5.1.5 DELIVERY OF CLOSING DOCUMENTS. Seller shall have received all of
the deliverables to be delivered to Seller at Closing as set forth in SECTION
6.5 in form and substance reasonably acceptable to Seller and Seller's counsel.
5.1.6 ON-SITE MAINTENANCE AGREEMENT. Buyer shall have entered into the
On-Site Maintenance Agreement with the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
9
5.1.7 THIRD PARTY APPROVALS. All necessary approvals and consents of
third parties to the validity, enforceability and effectiveness of the
transactions contemplated hereby have been obtained.
5.1.8 FINAL INSPECTION REPORT. Buyer's compliance with and satisfaction
of all remedies, actions and requirements of Buyer as set forth in the Final
Inspection Report (as herein defined).
5.2 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS.
In the event all of the conditions precedent to Buyer's
obligations to close have been satisfied and Seller is not in default of its
obligations hereunder and any one or more of the conditions to Seller's
obligation to close on the transaction contemplated hereunder are not completely
satisfied prior to or as of the Closing, Seller, at Seller's option, may: (a)
terminate this Agreement by giving written notice of termination to Buyer and
the Parties shall have no further obligation to each other under this Agreement,
other than the Buyer's Inspection Obligations (defined in SECTION 7.6), which
shall continue until fully performed, and the ▇▇▇▇▇▇▇ Money shall be paid to
Seller (provided, however the ▇▇▇▇▇▇▇ Money shall be returned to Buyer if the
conditions set forth in SECTIONS 5.1.6 or 5.1.7 are not satisfied ); or (b)
proceed to Closing.
In the event Seller is not in default of its obligations hereunder
and any one or more of the conditions to Seller's obligation to close on the
transaction contemplated hereunder are not completely satisfied prior to or as
of the Closing, Seller, at Seller's option, may: (a) terminate this Agreement by
giving written notice of termination to Buyer and the Parties shall have no
further obligation to each other under this Agreement, other than the Buyer's
Inspection Obligations (defined in SECTION 7.6), which shall continue until
fully performed, and the ▇▇▇▇▇▇▇ Money shall be paid to Buyer; or (b) proceed to
Closing.
ARTICLE 6. PROVISIONS WITH RESPECT TO CLOSING
6.1 CLOSING COSTS.
Seller and Buyer shall each pay one-half of any escrow fee or
similar fee charged by Title Company for acting as escrow agent. Seller shall
pay all documentary fees, transfer taxes or similar fees or taxes relating to
the conveyance of the Property. Buyer shall pay (i) the cost of all Land
Suitability Studies and inspections of the Property conducted by Buyer; (ii) the
cost of the Title Policy and any endorsements thereto, (iii) the cost of the
Audit; (iv) the cost of the Survey or any update of the Survey, (v) all costs
(subject to the limitations set forth in SECTION 4.1.9) associated with Buyer's
assumption of the Mortgage, and (vi) all recording and filing charges in
connection with the recording of the Deed. Each party shall pay its own
attorneys' fees and expenses, except as otherwise provided in this Agreement.
6.2 APPORTIONMENT OF TAXES, INCOME AND EXPENSES.
The Parties agree that all (i) Taxes and Assessments for the
period ending as of 12:01 a.m. on the Closing Date, and (ii) all expenses
related to the operation of the Property (the "Property Expenses") for the
period ending as of 12:01 a.m. on the Closing Date shall be paid by Seller on
the Closing Date. The Parties further agree that the Seller shall be entitled to
retain all income derived from the Tenant Leases (including, without limitation,
rents and operating expense reimbursements) (the "Property Income") for the
period ending as of 12:01 a.m. on the Closing Date. The Parties further agree
that Buyer shall pay all (i) Taxes and Assessments for the period after 12:01
a.m. on the Closing Date, and (ii) all Property Expenses for the period after
12:01 a.m. on the Closing Date. The Parties further agree that Buyer shall be
entitled to receive all Property Income for the period after 12:01 a.m. on the
Closing Date. At the Closing, all Taxes, Assessments, Property Income, and
Property Expenses
10
that are for the period that begins before Closing and ends after Closing shall
be prorated and accounted for between Seller and Buyer as of 12:01 a.m. on the
Closing Date based on, in the case of the Taxes and Assessments, the latest
mileage rate and assessment available, and in the case of the Property Income
and Property Expenses, the provisions of the Tenant Leases, the Books and
Records, and reasonable estimates of the Property Expenses for the year based
upon historical data prepared in accordance with generally accepted accounting
principals on an accrual basis. The proration of Property Income and Property
Expenses shall be prepared by Buyer's certified public accountants and provided
to Seller at least ten (10) days prior to Closing. Should any part of such
proration be inaccurate or in error based on the actual bills when received, the
adversely-affected Party shall receive from the other Party without prior
demand, a reimbursement from the other Party correcting such proration. All
prorations shall be credited to the appropriate Party at the Closing. All
refundable, non-applied Collateral collected by Seller or held by Seller or
others for the benefit of the Seller for existing Tenant Leases shall be
delivered to Buyer at the Closing. All insurance deposits held by the Mortgagee
shall be returned to Seller or credited to Seller at Closing if retained by the
Mortgagee for the benefit of Buyer. In addition, Seller shall receive credit, at
Closing, for any tax escrows held by the Mortgagee that remain with the
Mortgagee and are applied to the Taxes prorated in accordance with this Section,
but not tax escrows applied to back taxes. All remaining Collateral held by
Mortgagee shall be credited at Closing in accordance with the Final Inspection
Report as agreed upon by Buyer and Seller. The provisions of this Section shall
survive the Closing.
6.3 SELLER'S CLOSING DELIVERABLES.
At the Closing and as a condition of Closing (unless required to
be delivered earlier), Seller shall deliver to the Buyer, the following:
6.3.1 The ▇▇▇▇ of Sale substantially in the form attached as EXHIBIT E
and sufficient to transfer to Buyer the Personal Property duly executed,
acknowledged and delivered by Seller;
6.3.2 The Certificate of Non-Foreign Status substantially in the form
attached hereto as EXHIBIT F, addressed to Buyer duly executed, acknowledged and
delivered by Seller;
6.3.3 The Seller's Closing Certificate, substantially in the form of
EXHIBIT G wherein Seller shall certify that the representations and warranties
of Seller in this Agreement are true and correct as of the Closing Date duly
executed, acknowledged and delivered by Seller;
6.3.4 The Deed duly executed, acknowledged and delivered by Seller. For
purposes of this Agreement, "Deed" shall mean a special warranty deed containing
a warranty of title from Seller against claims arising by, through or under
Seller, but not otherwise and complying with Legal Requirements of the state
where the Land is located executed by Seller, as grantor, to Buyer, as grantee,
which transfers fee simple title to the Land and Improvements to Buyer, subject
only to the Permitted Exceptions. The Deed shall be reasonably acceptable to the
Title Company and Buyer's Counsel.
6.3.5 Possession of the Property, free and clear of any rights of use or
occupancy, except the Permitted Exceptions and the Tenant Leases;
6.3.6 An opinion of Seller's counsel, dated as of the Closing Date,
substantially in the form of EXHIBIT G attached hereto;
6.3.7 The Assignment of Leases substantially in the form set forth on
EXHIBIT I attached hereto duly executed, acknowledged and delivered by Seller;
11
6.3.8 An Estoppel Certificate substantially in the form set forth on
EXHIBIT J attached hereto for each of the Tenants duly executed, acknowledged
and delivered by Seller for each Tenant;
6.3.9 The Assignment of Business Contracts substantially in the form set
forth on EXHIBIT K attached hereto duly executed, acknowledged and delivered by
Seller;
6.3.10 Except for such agreements consented to by Buyer as set forth in
the Final Inspection Report, receipt by Buyer of evidence reasonably
satisfactory to Buyer that all agreements as set forth in SECTION 8.1.12 have
been terminated and are of no further force or effect;
6.3.11 An affidavit and indemnity agreement in form and substance as the
Title Company shall require in order to omit from the Title Policy all
exceptions for mechanic's, materialmen's or similar liens.
6.3.12 All keys, combinations, codes and security information to all
locks and security systems on the Property in Seller's possession;
6.3.13 Any transfer declarations or disclosure documents, duly executed
by the appropriate Parties, required by any state, county or municipal agency in
connection with the recordation of the Deed;
6.3.14 Such instruments or documents as are reasonably required by Buyer
or the Title Company (including, without limitation, corporate resolutions and
certificates of incumbency) to evidence the authority of Seller and of the
Persons executing the various documents on behalf of Seller, to enter into this
Agreement and to consummate the transactions contemplated herein;
6.3.15 Such other documents as are reasonably required by Buyer to carry
out the terms of this Agreement; and
6.3.16 A settlement statement setting forth all of the economics of the
transactions provided for in this Agreement (the "Settlement Statement") duly
executed, acknowledged and delivered by Seller.
6.4 OTHER DELIVERABLES TO BUYER.
At the Closing and as a condition of Closing (unless received
earlier), Buyer shall receive the following:
6.4.1 The On-Site Maintenance Agreement substantially in the form
attached hereto as EXHIBIT D (the "On-Site Maintenance Agreement") duly executed
and delivered by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.;
6.4.2 All documents with respect to the assumption of the Mortgage in
form and substance, reasonably acceptable to the Buyer, duly executed and
delivered by the Mortgagee; and,
6.4.3 All Materially necessary approvals and consents of third parties
to the validity and effectiveness of the transactions contemplated hereby.
6.5 BUYER'S CLOSING DELIVERABLES.
At the Closing and as a condition of Closing, Buyer shall deliver
to the Seller or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc., as applicable, the following:
6.5.1 Cash, wired funds or a certified or cashier's check payable to the
order of the Seller representing the cash portion of the Acquisition Price,
adjusted for the prorations and adjustments provided for herein;
12
6.5.2 Such instruments as are reasonably required by Seller or the Title
Company (including, without limitation, corporate resolutions and certificates
of incumbency) to evidence the authority of Buyer and the Persons executing the
various documents on behalf of Buyer, to consummate the transactions
contemplated in this Agreement and to execute and deliver the closing documents
to be delivered by Buyer;
6.5.3 The Buyer's Closing Certificate, substantially in the form of
EXHIBIT L wherein Buyer shall certify that the representations and warranties of
Buyer in this Agreement are true and correct as of the Closing Date duly
executed, acknowledged and delivered by Buyer;
6.5.4 An opinion of Buyer's counsel, dated as of the Closing Date,
substantially in the form of EXHIBIT M attached hereto;
6.5.5 The Assignment of Leases duly executed, acknowledged and delivered
by Buyer;
6.5.6 Any transfer declarations or disclosure documents, if any required
to be executed by Buyer, duly executed by Buyer, required by any state, county
or municipal agency in connection with the recordation of the Deed;
6.5.7 The On-Site Maintenance Agreement duly executed and delivered by
Buyer to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.;
6.5.8 The Settlement Statement duly executed, acknowledged and delivered
by Buyer; and
6.5.9 Such other documents as are reasonably required by Seller to carry
out the terms of this Agreement.
ARTICLE 7. INSPECTION PERIOD
7.1 INSPECTION PERIOD.
The Inspection Period shall begin on the day Buyer deposits the
▇▇▇▇▇▇▇ Money in accordance with SECTION 2.1 and shall end on the date that the
Parties execute the Final Inspection Report. During the Inspection Period, Buyer
will, as it deems appropriate: (i) acquire such Land Suitability Studies (as
herein defined); (ii) conduct physical inspections, examinations and tests of
the Property; (iii) examine the Books and Records of the Seller applicable to
the Property, including, but not limited to the Tenant Leases, the Mortgage,
depreciation schedules, tax returns, capital budgets and other accounting, tax
and operational information; (iv) review the current and future state of
utilities and other services to the Property; (v) review current governmental
approvals; (vi) if required by Buyer, conduct an Audit (as herein defined) of
Seller and the Property; (vii) perform such other due diligence activities as
reasonably determined by Buyer. Buyer agrees that it will use its good faith
efforts, subject to the provisions of this ARTICLE 7, to notify Seller during
the course of the Inspection Period of any matters which come to the attention
of Buyer that Buyer reasonably anticipates including in its Preliminary
Inspection Report (as herein defined). Seller acknowledges and agrees that it
will use its good faith efforts, subject to the provisions of this ARTICLE 7, to
cooperate with Buyer in its efforts to conduct a complete and thorough due
diligence review of the Property.
7.2 PRELIMINARY INSPECTION REPORT.
On or before June 20, 2002, Buyer shall deliver to Seller, in
writing, either its Preliminary Inspection Report (as herein defined) or notice
that it elects to terminate this Agreement. Buyer's failure to deliver the
Preliminary Inspection Report or Buyer's election to terminate this Agreement to
Seller on or before June 20, 2002 shall be an event of default by Buyer. In the
event Buyer elects to terminate this Agreement, such termination shall be
subject to the provisions of SECTION 2.2.1.
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For purposes of this Agreement, the Preliminary Inspection Report shall mean
Buyer's written report to Seller setting forth and including the following:
7.2.1 A copy of the Title Commitment from the Title Company with all
endorsements reasonably required by Buyer and agreed to by the Title Company.
The Title Commitment shall be marked and/or accompanied with a statement setting
forth the Permitted Exceptions, the exceptions to title that are not acceptable
to Buyer, the additional requirements to be satisfied for the issuance of the
Title Policy in accordance with the Title Commitment or any additional
reasonable requirements of Buyer with respect to title, the Title Policy, the
Deed or any other documents of conveyance of the Property.
7.2.2 A copy of the Survey with a statement by Buyer of such items,
including any certificate deficiencies that are reasonably unacceptable to Buyer
and require additional action or impose additional requirements on Seller.
7.2.3 An analysis of the operational and physical condition of the
Property with a statement of any items that are reasonably unacceptable to Buyer
and require additional action or impose additional requirements on Seller.
7.2.4 An analysis of the Collateral and Buyer's estimate of reasonable
reserves for repairs and replacements and other reserves, including the Buyer's
suggested disposition of all deposits and reserves held by the Mortgagee.
7.2.5 Such other matters that have been made known to Buyer during the
Inspection Period that Buyer reasonably determines require additional action or
impose additional requirements on Seller.
7.2.6 In all matters submitted, where additional action or additional
requirements are required by the Preliminary Inspection Report, Buyer shall
provide its recommended action or requirement that it reasonably believes will
resolve Buyer's objections.
7.2.7 Notwithstanding that the Inspection Period terminates upon the
earlier of the termination of this Agreement or the Parties execution of the
Final Inspection Report, if Buyer delivers a Preliminary Inspection Report to
Seller rather than terminating this Agreement, in no event shall Buyer be
permitted to revise or supplement its Preliminary Inspection Report or add
additional inspection issues to the Final Inspection Report, except as agree to
by Seller.
7.3 SELLER'S PRELIMINARY INSPECTION REPORT REPLY.
Within ten (10) days after Seller's receipt of Buyer's Preliminary
Inspection Report, Seller shall deliver to Buyer, in writing, either its
Preliminary Inspection Report Reply (as herein defined) or notice that it elects
to terminate this Agreement. Seller's failure to deliver the Preliminary
Inspection Report Reply or Seller's election to terminate this Agreement to
Buyer within said ten (10) day period shall be an event of default by Seller. In
the event Seller elects to terminate this Agreement, such termination shall be
subject to the provisions of SECTION 2.2.1. For purposes of this Agreement, the
Preliminary Inspection Report shall mean Seller's written report to Buyer
setting forth Seller's response to each objection and suggested recommended
action or requirement of Seller set forth in the Preliminary Inspection Report.
Within five (5) days after Buyer's receipt of Seller's Preliminary Inspection
Report Response, Buyer shall notify Seller in writing that it (i) accepts
Seller's Preliminary Inspection Report Reply; or, (ii) requests a meeting with
Seller to resolve any remaining matters set forth in the Preliminary Inspection
Report and the Preliminary Inspection Report Response. Such meeting shall be
held either by telephonic means or at such place as mutually agreeable to the
Parties at such time within two (2) days following such request as mutually
agreed to by the Parties. Buyer's
14
failure to (i) deliver it's acceptance of Seller's Preliminary Inspection Report
Reply, or (ii) call for a meeting within said five (5) day period shall be an
event of default by Buyer. At such meeting, the Parties shall either resolve
such matters or either Party may elect to terminate this Agreement in which
event such termination shall be subject to the provisions of SECTION 2.2.1. In
the event the Parties resolve all matters subject to the Preliminary Inspection
Report, such resolution, including all further required action or requirements
of Seller or Buyer, if any, shall be set forth in writing as the Final
Inspection Report. The Inspection Period shall end on the date of the Final
Inspection Report unless sooner ended as a result of a termination of this
Agreement. Each Party's compliance with the Final Inspection Report shall be a
condition precedent to Closing for the other Party.
7.4 DUE DILIGENCE DOCUMENTATION.
Within ten (10) days after the Effective Date, Seller shall
deliver to Buyer for review the Due Diligence Documentation. For purposes of
this Agreement Due Diligence Documentation shall mean the items set forth on
EXHIBIT B.
BUYER ACKNOWLEDGES AND AGREES THAT THE DUE DILIGENCE DOCUMENTATION
IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND THAT NEITHER SELLER, NOR ITS
AFFILIATES, NOR THE PERSON OR COMPANY WHICH PREPARED ANY OF THE DUE DILIGENCE
DOCUMENTATION (COLLECTIVELY, THE "AUTHOR") HAVE MADE OR MAKE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF THE DUE
DILIGENCE DOCUMENTATION. BUYER AGREES THAT NEITHER SELLER, NOR ITS AFFILIATES,
NOR ANY AUTHOR, NOR ANY OTHER PERSON, WILL HAVE ANY LIABILITY TO BUYER OR ANY OF
BUYER'S CONTRACTORS RESULTING FROM THE USE OF THE DUE DILIGENCE DOCUMENTATION.
BUYER FURTHER AGREES THAT BUYER AND BUYER'S CONTRACTORS SHALL INDEPENDENTLY
INSPECT AND INVESTIGATE THE PROPERTY AND VERIFY SUCH INFORMATION WITH RESPECT TO
THE PROPERTY AS SAID PARTIES DEEM NECESSARY OR DESIRABLE TO FULLY EVALUATE THE
PROPOSED TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE PHYSICAL CONDITION
AND ECONOMIC STATUS OF THE PROPERTY. BUYER SHALL NOTIFY ANY OF BUYER'S
CONTRACTORS OF THE PROVISIONS OF THIS PARAGRAPH BEFORE DELIVERING ANY OF THE DUE
DILIGENCE DOCUMENTATION TO ANY OF THEM.
7.5 LAND SUITABILITY STUDIES.
For purposes of this Agreement, Land Suitability Studies shall
mean Buyer's Audit, Appraisal, Engineering Studies, Survey, Title Commitment,
Encumbrance Documents, Environmental Reports, Pest Control Report, UCC Search
Reports, and such other information, reports, inspections and studies
commissioned by Buyer for its approval of the purchase of the Property.
7.6 INSPECTION RIGHTS AND OBLIGATIONS OF BUYER.
7.6.1 Buyer and its authorized agents or representatives (collectively,
"Buyer's Contractors") shall have the right to enter onto the Real Property at
reasonable times during normal business hours (or such other times as Seller may
agree to in writing) to make physical inspections thereof and to conduct such
other inspections and tests, as Buyer deems appropriate in accordance with this
Section. Buyer shall not enter upon the Property without the consent of Seller
which shall not unreasonably withheld or delayed. Buyer and Buyer's Contractors
shall: (i) not unreasonably interfere with the operation and maintenance of the
Real Property; (ii) not damage any part of the Property; (iii) not injure or
otherwise
15
cause bodily harm to Seller, its agents, contractors and employees or any
Tenant, its agents, contractors and employees; (iv) not unreasonably interfere
with any activities conducted on the Real Property by any Tenant. During the
Inspection Period, Buyer shall maintain general liability (occurrence) insurance
in terms and amounts as set forth on SCHEDULE 7.6.1 covering any accident
arising in connection with the presence of Buyer or Buyer's Contractors on the
Real Property. Buyer shall not perform any physical or structural tests without
the written consent of Seller which consent shall not be unreasonably withheld
or delayed. Seller reserves the right for itself and its representatives to be
present for any inspection or test. Buyer shall not permit any liens to attach
to the Property by reason of the exercise of its rights hereunder. In the event
any soil or other tests conducted by Buyer affect the Property, Buyer shall
restore the Property to substantially the same condition in which the same was
found before any tests were undertaken.
7.6.2 Buyer agrees to indemnify and hold Seller and Seller Parties
harmless from and against any and all liens, claims, causes of action, damages
and expenses (including reasonable attorneys' fees) asserted against or incurred
by Seller or Seller Parties arising out of any violation of the provisions of
this Section.
7.6.3 The obligations of Buyer created pursuant to this SECTION 7.6 are
called "Buyer's Inspection Obligations", and, notwithstanding any other
provision in this Agreement to the contrary, shall survive the Closing or any
termination of this Agreement until fully performed.
7.7 INSPECTION OBLIGATIONS OF SELLER.
Seller shall, in accordance with the provisions of this Section
afford Buyer and Buyer's Contractors reasonable access to Tenants, as
coordinated through Seller, and afford the officers, attorneys, accountants, or
other authorized representatives of Buyer access during normal business hours to
all its Books and Records related to consummation of the transactions
contemplated by this Agreement in order to afford Buyer such opportunity of
inspection, review, examination, and investigation as Buyer shall desire to make
of the affairs related to the Property and Buyer shall (at Buyer's expense) be
permitted to make extracts from, and take copies of, such books, records or
other documentation as may be reasonably necessary for each purpose.
7.8 GOVERNMENTAL AUTHORITIES.
Seller authorizes Buyer to make all inquiries of appropriate
Governmental Authorities with respect to the Property, as Buyer, in its good
faith, using reasonable judgment, deems necessary to confirm the compliance of
the Property with all Legal Requirements applicable to the Property and to
satisfy itself as to the compliance of the Property with the requirements of
such Governmental Authorities for Buyer's Intended Use.
7.9 UTILITY AND OTHER SERVICE.
Seller authorizes Buyer to make all inquiries of appropriate
providers of utility and other services with respect to the Property, as Buyer,
in its good faith, using reasonable judgment, deems necessary to confirm the
present and future availability of all such services reasonably required by
Buyer for Buyer's Intended Use of the Property and the compliance of the
Property with all requirements, rules and regulations of such utility providers
to the Property.
7.10 AUDIT REQUIREMENTS.
Seller acknowledges that Buyer may be required to cause an audit
(the "Audit") to be performed by Buyer's certified public accounting firm with
respect to the Property consistent with the
16
SEC accounting, reporting and disclosure requirements in order to include this
transaction in the Windrose IPO. Seller shall provide Buyer's accountants access
to the Books and Records to perform the required Audit.
ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
As a material inducement to Buyer's decision to enter into this
Agreement, Seller represents and warrants to Buyer, with respect to the
Property, the following, which shall be true and correct on the Effective Date
and on the Closing Date:
8.1.1 LIMITED LIABILITY COMPANY STATUS. Seller is a limited liability
company duly organized and validly existing under the laws of State of North
Carolina and is, or will be on the applicable Closing Date, duly authorized to
do business in the state in which the Property is located in accordance with
local law. P-51 Associates is the managing manager of Seller and has been duly
authorized and empowered by Seller's members to execute this Agreement and all
documents in connection herewith.
8.1.2 AUTHORITY AND BINDING NATURE. Seller has all requisite power and
authority to execute, deliver and perform this Agreement and all instruments and
agreements contemplated hereby. This Agreement has been duly authorized,
executed and delivered by Seller, and all consents required under Seller's
operating agreement and governance documents or from any third party or from any
Governmental Authority, the failure to obtain of which would have a Material
effect on the Property, have been obtained. All documents to be executed by
Seller and delivered to Buyer at Closing, will be duly executed, authorized and
delivered by Seller and will, in accordance with their terms, constitute the
valid, binding, and legal obligations of Seller.
8.1.3 SOLVENCY. Seller is a solvent limited liability company and (a)
has filed all tax returns which are required to be filed by it and paid all
taxes which are required to be paid by it; the failure to file or pay of which
would have a Material effect on the Property, and (b) is not in default in the
payment of any taxes levied or assessed against it or any of its assets, or
under any judgment, order, decree, rule or regulation of any court, arbitrator,
administrative agency or other Governmental Authority to which it may be subject
which would Materially affect the Property. There are no outstanding tax
penalties assessed against the Seller with respect to the Property. Attached
hereto as SCHEDULE 8.1.3 are copies of Seller's last two years' real estate tax
bills and a copy of the most recent real estate appraisal notice.
8.1.4 TITLE. Seller has or at the Closing will have, and will convey,
transfer and assign to Buyer, good, marketable and indefeasible fee simple title
to the Land and Improvements in form and substance required to cause the Title
Company to issue the Title Policy in accordance with the Title Commitment
subject only to the Permitted Exceptions in accordance with the Final Inspection
Report. The Seller has or at the Closing will have, and will convey, transfer
and assign to Buyer, good and marketable title to the Tenant Leases, the Books
and Records, Business Contracts, the Collateral, the Engineering Materials, the
Fixtures, the Intangible Property, the Personal Property and the Warranties .
Seller has not conveyed to any person or entity any rights to acquire any
interest in the Property, except for the Tenant Leases.
8.1.5 VIOLATION OF AGREEMENTS. Neither execution by Seller of this
Agreement nor the consummation by Seller of the transactions contemplated by
this Agreement will (a) 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
17
time would ripen into a default under any agreement, instrument or obligation to
which Seller is a party or by which the Property is bound; (b) to Seller's
knowledge, constitute a Material violation of any law, order, rule or regulation
applicable to Seller or any portion of the Property, of any federal, state or
municipal body, or other governmental or quasi-governmental body having
jurisdiction over Seller or any portion of the Property; or (c) cause the
creation of any Material lien, claim, or encumbrance upon the Property (other
than the Permitted Exceptions in accordance with the Final Inspection Report).
8.1.6 LICENSES AND PERMITS. All Improvements have been substantially
completed and installed in accordance with their plans and specifications
approved by the governmental authorities having jurisdiction and are
transferable to Buyer without the payment of additional fees. Permanent
certificates of occupancy, certificates of need, the requisite certificates of
the local board of fire underwriters (or other similar entities) and any and all
licenses, permits, authorizations and approvals required by all governmental
authorities having jurisdiction, and or any other approvals or authorizations
from Governmental Authorities or other third parties which are necessary to
permit the use of the Property for its current use have been issued and are in
full force and effect and no material default exists under any such items.
Attached hereto as SCHEDULE 8.1.6 is, to the best of Seller's knowledge, a true,
accurate and complete list of all such items. With the delivery of this
Agreement, Seller has provided to Buyer a true, accurate and complete copy of
each item set forth on SCHEDULE 8.1.6.
8.1.7 LITIGATION AND ADMINISTRATIVE PROCEEDINGS. There are no lawsuits
or other proceedings of any kind pending or, to Seller's knowledge, threatened
against Seller relating to the Property, nor does Seller have any knowledge of
any basis for any such action. There are no known outstanding claims or disputes
by Tenants against Seller. There are no pending or, to the Seller's knowledge,
threatened, judicial, municipal or administrative proceedings with respect to,
or in any manner affecting, the Property or any portion thereof, including
without limitation, proceedings for or involving collections, condemnations,
eminent domain, alleged injuries or property damage alleged to have occurred on
the Property or by reason of the construction of the Improvements or use and
operation of the Property, or any present plan or study made known to Seller by
any Governmental Authority, agency or employee thereof which in any way
challenges, affects or would challenge or affect the continued authorization of
the ownership, construction, use and operation of the Property, or any street or
highway servicing or adjacent to the Property. Seller has received no notices of
any lawsuits or other proceedings or judgments relating to the Seller's
violation of any laws, ordinances, regulations, codes, orders or other
requirements specifically affecting the Property, or Seller's ability to carry
out the transactions contemplated in this Agreement. Seller is not aware of any
notice of any claim, requirement or demand of any licensing or certifying agency
or other Governmental Authority supervising or having authority over the
Property to rework or redesign the Property or to provide additional furniture,
fixtures, equipment or inventory so as to conform or comply with any existing
law, code or standard which have not been Materially satisfied prior to the date
hereof.
8.1.8 PARTIES IN POSSESSION. Except for Tenants under the Tenant Leases,
there are no adverse or other parties in possession of the Property or of any
part thereof, except Seller. Except for Tenants under the Tenant Leases, no
party has been granted any lease or other right relating to the use, occupancy,
or possession of the Property (including, but not limited to ground leases,
occupancy agreements or parking leases).
8.1.9 TENANT LEASES. Attached hereto as SCHEDULE 8.1.9 is a list of all
the Tenant Leases. With the delivery of this Agreement, Seller has provided to
Buyer a true, accurate and complete copy of each Tenant Lease set forth on
SCHEDULE 8.1.9. Each Tenant Lease is and at Closing will be (i) in full force
and effect; and (ii) has not been amended, modified or supplemented in any
material way except as
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set forth in the copies of the Tenant Leases provided to Buyer with the
execution of this Agreement. No material default on the part of the Seller
exists under any of the Tenant Leases nor will any exist as of the Closing.
There are no defaults by Tenants under any of the Tenant Leases, except as set
forth on SCHEDULE 8.1.9. As of the Closing, all Tenant improvements, repairs and
other work and obligations, if any, then required to be performed by the Seller
under each of the Tenant Leases will be fully performed and paid for prior to
the Closing. Seller has not committed to any Tenant improvements or allowances,
except as set forth in the Tenant Leases for periods arising after the Closing.
Seller has not accepted the payment of rent or other sums due under any of the
Tenant Leases for more than one (1) month in advance. None of the Tenant Leases
or rents payable thereunder have been assigned, pledged or encumbered, except to
the Mortgagee. All unapplied security deposits, reserve accounts, escrow funds
or other similar payments required by the Tenants have been paid and are held by
Seller in accordance with the terms and provisions of the Tenant Leases.
8.1.10 RENT ROLL. Attached hereto as SCHEDULE 8.1.10 is a true, accurate
and complete listing of each Tenant, space occupied, lease term, options to
renewal by date, current rent, lease expiration date for the Property (herein
the "Rent Roll") as of the Effective Date.
8.1.11 COLLATERAL. Attached hereto as SCHEDULE 8.1.11 is a true,
accurate and complete list of all Collateral identifying amounts by Tenant. For
purposes of this Agreement, Collateral shall mean (i) all security deposits,
escrow deposits, reserve funds, security interests, letters of credit, pledges,
prepaid rent or other sums, deposits or interests held by Seller or by any other
person for the benefit of the Seller with respect to the Property, and (ii) all
of the foregoing held by the Mortgagee with respect to the Mortgage.
8.1.12 LEASING COMMISSIONS AND PROPERTY MANAGEMENT AGREEMENTS. Attached
hereto as SCHEDULE 8.1.12 is a true, accurate and complete list of all property
management agreements, janitorial service, on-site maintenance, brokerage or
leasing commission agreement or any similar agreement requiring an owner of the
Property to pay any fees for property management, on-site maintenance or leasing
commissions or other form of compensation to any party as a result of a Tenant
Lease or other occupancy agreement or to compensate such third party for the
management, maintenance, cleaning, leasing or similar services to the Property
on behalf of the Seller. With the delivery of this Agreement, Seller has
provided to Buyer a true, accurate and complete copy of each Agreement set forth
on SCHEDULE 8.1.12. Except as set forth on SCHEDULE 8.1.12, as of the Closing,
all such agreements shall be terminated by Seller and no property management
compensation, on site maintenance, brokerage or leasing commissions or other
compensation will be due or payable to any person, firm or entity with respect
to the Property or any Tenant Lease (including any extensions or renewals
thereof).
8.1.13 BUSINESS CONTRACTS. Attached hereto as SCHEDULE 8.1.13 is a true,
accurate and complete list of all Business Contracts (as herein defined). With
the delivery of this Agreement, Seller has provided to Buyer a true, accurate
and complete copy of each Business Contract set forth on SCHEDULE 8.1.13. For
purposes of this Agreement, "Business Contracts" shall mean any equipment lease,
maintenance agreement, waste disposal agreement, service contract, vendor or
supply contract, insurance contract, or other agreement entered into by the
Seller and not otherwise described in this Agreement affecting all or a portion
of the Property. Except as set forth on SCHEDULE 8.1.13, all such Business
Contracts are terminable upon thirty (30) days written notice. No default or
breach by Seller exists, or as of the Closing will exist, under any Business
Contract. To Seller's knowledge, no default exists or as of Closing will exist
under any Business Contract by any other party to such Business Contract.
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8.1.14 INVENTORY OF FIXTURES AND MAJOR EQUIPMENT AND SYSTEMS. Attached
hereto as SCHEDULE 8.1.14 is a true, accurate and complete inventory of all
Fixtures and all major equipment and systems owned by Seller and located on the
Property. Except for public utilities, there is no major equipment or systems
not located on the Property required for the operation of the Property. For
purposes of this Agreement, "Fixtures" shall mean all of Seller's permanently
affixed equipment, machinery, fixtures and other items of real and/or personal
property, now and hereafter located in, on or used in connection with the
Property (including, without limitation, all furnaces, boilers, electrical
equipment, heating equipment, 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, built-in vacuum, security and access control systems,
cable transmission, telephone systems and similar systems), but specifically
excluding the Excluded Assets (as herein defined). All Fixtures and Seller's
major equipment and systems shall be in good working order at the Closing,
subject to ordinary wear and tear. Except as set forth on SCHEDULE 8.1.14, there
are no liens or encumbrances (and none will exist as of the Closing) on any of
the Fixtures or major equipment and systems. With the delivery of this
Agreement, Seller has provided to Buyer a true, accurate and complete copy of
each lien or encumbrance set forth on SCHEDULE 8.1.14.
8.1.15 INVENTORY OF PERSONAL PROPERTY. Attached hereto as SCHEDULE
8.1.15 is a true, accurate and complete list of all inventory of personal
property such as maintenance equipment, appliances, mechanical equipment,
furniture and supplies currently owned by the Seller and used in the operation
of the Property and all Fixtures owned by Seller, except to the extent included
in SCHEDULE 8.1.14. Except as set forth on SCHEDULE 8.1.15, all personal
property shall be conveyed to Buyer at Closing, subject to ordinary wear and
tear. Except as set forth on SCHEDULE 8.1.15, there are no liens or encumbrances
(and, except as set forth on SCHEDULE 8.1.15, none will exist as of the Closing)
on any of the Fixtures or major equipment and systems. With the delivery of this
Agreement, Seller has provided to Buyer a true, accurate and complete copy of
each lien or encumbrance set forth on SCHEDULE 8.1.15.
8.1.16 WARRANTIES. Attached hereto as SCHEDULE 8.1.16 is a true,
accurate and complete list of Warranties (as herein defined). With the delivery
of this Agreement, Seller has provided to Buyer a true, accurate and complete
copy of each express Warranty issued to Seller set forth on SCHEDULE 8.1.16. For
purposes of this Agreement, "Warranties" shall mean all warranties and
guaranties with respect to the Property, whether express or implied, which
Seller now holds or under which Seller is the beneficiary, including, without
limitation, any warranties and guaranties assigned to Seller under the Tenant
Leases.
8.1.17 INTANGIBLE PROPERTY. Attached hereto as SCHEDULE 8.1.17 is a
true, accurate and complete list of Intangible Property (as herein defined).
With the delivery of this Agreement, Seller has provided to Buyer a true,
accurate and complete copy of each item of Intangible Property set forth on
SCHEDULE 8.1.17. For purposes of this Agreement, "Intangible Property" shall
mean all Licenses and other intangible property (including any interest therein)
owned by or issued to Seller or required for the current use of the Real
Property, including the Real Property name and building insignia or logo, if
any, all contract rights, agreements, trade names, water rights, and zoning
rights. Intangible Property shall not include any Excluded Assets (as herein
defined).
8.1.18 EXCLUDED ASSETS. Attached hereto as SCHEDULE 8.1.18 is a true,
accurate and complete list of all of Seller's Assets (the "Excluded Assets")
that are retained by Seller and not subject to the sale contemplated by this
Agreement.
8.1.19 THIRD PARTY STUDIES. Attached hereto as SCHEDULE 8.1.19 is, to
Seller's best knowledge, a true, accurate and complete list of Engineering and
Inspection Materials (as herein defined). For
20
purposes of this Agreement, "Engineering and Inspection Materials" shall mean
(i) all Architectural/Engineering Working Drawings and Specifications for the
Property including, but not limited to all "as built" drawings in Seller's
possession; (ii) any engineering plans and studies, including structural studies
of the Property in the possession of Seller; (iii) all site plans in Seller's
possession; (iv) any soil, substrata studies, or landscape plans in the
possession of Seller; (v) all floor plans in Seller's possession; (vi) any
appraisals of the Property commissioned by Seller and in Seller's possession;
(vii) the most recent inspection and certification reports made by any insurance
carrier, codes or building department, fire marshal, OSHA or any state licensing
authority in the possession of Seller or (vii) any Environmental Reports in
Seller's possession. With the delivery of this Agreement, Seller has provided to
Buyer an accurate and complete copy of each item set forth on SCHEDULE 8.1.19.
Seller makes no representation or warranty as to the professional judgments set
forth in such Third Party Studies. Such Third Party Studies shall be subject to
the disclaimer of Seller set forth in SECTION 7.4.
8.1.20 TITLE POLICY. Attached hereto as SCHEDULE 8.1.20 is a true,
accurate and complete copy of Seller's current title policy with respect to the
Property.
8.1.21 SURVEY. Attached hereto as SCHEDULE 8.1.21 is a copy of the
latest survey in Seller's possession with respect to the Property. Except as
shown on such survey or in Seller's title policy attached hereto as SCHEDULE
8.1.20, Seller has no knowledge of any other restriction, covenant,
appurtenance, easement or other encumbrance with respect to the Property, except
for the Mortgage (as herein defined).
8.1.22 MORTGAGE. The Property is subject to a certain mortgage to G.E.
Capital Corporation (the "Mortgage"). The Property is not subject to any other
encumbrance except for ad valorem taxes not yet due and payable and except as
set forth on the other Schedules to this Agreement. Attached hereto as SCHEDULE
8.1.22 is a true, accurate and complete loan amortization table for the
Mortgage. The Mortgage is and at Closing will be current, in accordance with
SCHEDULE 8.1.22, as to all payments of principal and interest and all other
payments required of Seller with respect to the Mortgage. Seller has with the
delivery of this Agreement provided to Buyer an accurate and complete copy of
each loan document, guarantee, promissory note or other document related to the
Mortgage.
8.1.23 SELLER OCCUPIED SPACE. The Seller does not and, as of the
Closing, will not occupy any space in the Property.
8.1.24 FINANCIAL STATEMENTS. Seller has delivered to Buyer copies of the
following financial statements: (a) the internally prepared balance sheet of
Seller as of December 31, 2001 and related statement of income for the fiscal
year ended on that date,; and (b) the internally prepared balance sheet of
Seller as at March 31, 2002 and related statement of income for the three-month
period ended on that date, together with supporting schedules, certified by the
managing member of Seller. To Seller's knowledge, all of such financial
statements present fairly the financial position of Seller as at the respective
dates of said balance sheets and results of operations of Seller for the
respective periods then ended in conformity with generally accepted accounting
principles applied on a basis consistent with that of the preceding periods
(subject, in the case of interim financial statements, to normal year-end
adjustments consistent with prior periods). No uncollectible accounts receivable
are reflected on any of said balance sheets without provision for an adequate
reserve for uncollectible amounts.
8.1.25 INSURANCE POLICIES. Attached hereto as SCHEDULE 8.1.25 is a true,
accurate and complete list of all insurance policies currently held by Seller on
the Property. With the delivery of this Agreement, Seller has provided to Buyer
a true, accurate and complete copy of each insurance policy set forth on
SCHEDULE 8.1.25. No notice has been received by Seller from any insurance
company that has
21
issued a policy with respect to any portion of the Property or from any board of
fire underwriters (or other body exercising similar functions) (i) claiming any
defects or deficiencies or requiring the performance of any repairs,
replacements, alterations or other work; or (ii) stating that any of such
policies will not be renewed or will be renewed only at a materially higher
premium rate than is presently payable.
8.1.26 CONDEMNATION. Seller has received no notice of and has no
knowledge of (i) any pending or threatened condemnation or transfer in lieu
thereof or impairment of access affecting the Property, or (ii) any proposed or
pending special assessments against the Property, or (iii) any proposed or
pending public improvements which may give rise to Assessments against the
Property.
8.1.27 RISK AREAS AND SOIL CONDITIONS. To Seller's knowledge, the
Property is not located within an area of special risk with respect to natural
or man-made disasters or hazards, such as earth movement, flood, nuclear risk or
hazardous waste. To Seller's knowledge there are no adverse geological or soil
conditions affecting the Property.
8.1.28 UTILITIES. To Seller's knowledge, the existing utilities systems
(including water, sewer, gas and electricity lines and storm sewer) on the Land
(i) are adequate to serve the utility needs of the Property; (ii) enter the Land
through adjoining public streets or through adjoining private land in accordance
with valid public or private easements appurtenant to the Land that will inure
to the benefit of Buyer; and (iii) are installed and operating and all
installation and connection charges have been paid in full. All approvals,
licenses and permits required for said utilities have been obtained and shall be
in force and effect as of the Closing Date.
8.1.29 COMPLIANCE WITH LEGAL REQUIREMENTS. To Seller's knowledge, the
construction, occupancy, operation and use of the Real Property do not
materially violate any applicable Legal Requirement or requirement of any
Governmental Authority.
8.1.30 NON-CONFORMING AND SPECIAL USE. To Seller's knowledge, local
zoning ordinances, general plans and other applicable land use regulations and
all private covenants, conditions and restrictions, if any, permit the transfer
and use of the Property (and reconstruction and resumption of use of the
Property in the event of damage or destruction thereof or cessation of use
thereof) for the business presently conducted thereon as a matter of right for
an unlimited time period, and specifically not merely as a legal non-conforming
use of any other legal status which would by its terms or by operation of law
limit the duration of such use or the right to rebuild and resume use of each
Property for the business presently conducted thereon in the event of damage,
destruction or cessation of use of each Property for any reason.
8.1.31 STRUCTURAL DEFECTS. Except as set forth on SCHEDULE 8.1.31,
Seller has no knowledge of any structural defects in any of the Improvements
and, to Seller's knowledge, all heating, electrical, plumbing and drainage
systems servicing the Property are, and as of the Closing will be, in good
condition and working order. There are no unsatisfied requests for repairs or
alterations with regard to the Property communicated to the Seller from any
person or entity (including but not limited to any Tenant). To the Seller's
knowledge, neither the Property nor any portion therein has been materially
destroyed or damaged by fire or other casualty.
8.1.32 MECHANICS LIENS. No work has been performed at the request of
Seller or is in progress at the request of seller at the Property and no
materials will have been delivered to the Property with respect to work
requested by the Seller that might provide the basis for a mechanic's,
materialmen's or other lien against the Property and all outstanding amounts due
for such work and material shall have paid in full by Seller as of Closing.
22
8.1.33 PUBLIC ROAD ACCESS. The Property currently has and will as of the
Closing have free and unimpeded access to presently existing public highways
and/or roads (either directly or by way of perpetual easements). Means of
ingress and egress, streets, parking and drainage facilities are, to Seller's
knowledge, adequate for the current use of the Property.
8.1.34 FLOOD PLAIN. To Seller's knowledge, no portion of the Real
Property is located in a flood plain or in an area defined as a wetland under
applicable Legal Requirements.
8.1.35 INVOLUNTARY PROCEEDINGS. 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
Seller or pending against Seller or, to Seller's knowledge, threatened against
Seller.
8.1.36 MEDICAL FACILITIES. To Seller's knowledge, each Tenant operating
on the Property is duly and property licensed under all federal, state and local
laws, ordinances and regulations applicable to Tenant's business. There is, to
Seller's knowledge, no investigation or action pending against any Tenant, or to
the knowledge of Seller, recommended by any Governmental Authority having
jurisdiction over any Tenant, either to revoke, withdraw or suspend any Tenant's
license to operate a medical facility on the Property, or to terminate or limit
any Tenant's participation of, or exclude any Tenant from participation in the
Medicare or Medicaid Programs, nor, to Seller's knowledge, is there any decision
not to renew any provider agreement related to any medical facility located on
the Property, or any action of any other type which would have a material
adverse effect on any Tenant's medical facility, its operations, or business
located on the Property.
8.1.36.1 To Seller's knowledge, there has been no admissions
hold or decertification proceeding initiated against any Tenant with respect to
its use of the Property, or to the knowledge of Seller threatened, against any
Tenant's medical facility located on the Property for the prior one (1) year
period.
8.1.36.2 To Seller's knowledge, there are no outstanding
deficiencies or work orders of any Governmental Authority having jurisdiction
over any medical facility located on the Property requiring conformity to any
applicable statute, regulation, ordinance or by-law pertaining to the type of
medical facility presently being operated on the Property, including but not
limited to the Medicare and Medicaid Programs.
8.1.36.3 To Seller's knowledge, no medical facility located on
the Property is in material violation with the conditions and standards of
participation in the Medicare and Medicaid Programs.
8.1.37 ENVIRONMENTAL MATTERS. No Hazardous Materials have been
installed, used, generated, manufactured, treated, handled, refined, produced,
processed, stored or disposed of by the Seller, or, to Seller's knowledge,
otherwise present in, on or under the Property. To Seller's knowledge, no
activity has been undertaken on the Property which would cause (i) the Property
to become a hazardous waste treatment, storage or disposal facility within the
meaning of, or otherwise bring the Property within the ambit of RCRA or any
Environmental Law, (ii) a release or threatened release of Hazardous Material
from the Property within the meaning of, or otherwise bring the Property within
the ambit of, CERCLA or ▇▇▇▇ or any other Environmental Law or (iii) the
discharge of Hazardous Material into any watercourse, body of surface or
subsurface water or wetland, or the discharge into the atmosphere of any
Hazardous Material which would require a permit under any Environmental Law. To
Seller's knowledge, no activity has been undertaken by the Seller with respect
to the Property that would cause a violation or support a claim under any
Environmental Law. No investigation, administrative order,
23
litigation or settlement with respect to any Hazardous Material is, to Seller's
knowledge, threatened or in existence with respect to the Property. No notice
has been served on Seller from any person, entity or governmental body claiming
any violation of any Environmental Law, or requiring compliance with any
Environmental Law, or demanding payment or contribution for environmental damage
or injury to natural resources. Seller has not obtained and is not required to
obtain, any permits, licenses or authorizations to occupy, operate or use the
Property or any part of the Property by reason of any Environmental Law. Seller
has not generated, stored, released, handled or disposed of hazardous waste or
Hazardous Materials on or in the Property or any portion thereof in violation of
any applicable state or federal law. Seller has received no notice and has no
knowledge that any hazardous waste or Hazardous Materials have been generated,
stored, released, handled or disposed of on or in the Property or any portion
thereof in violation of any applicable state or federal law. To Seller's actual
knowledge, the Property has not been used for service station purposes, storage
of petroleum products or other hazardous material or fill material. Seller has
not placed nor is it aware of any underground tanks on the Property.
8.1.38 FULL DISCLOSURE. Excepting the Due Diligence Documentation for
which Seller makes no representation or warranty, neither this Agreement nor any
certificate, statement or other document furnished or to be furnished to Buyer
by or on behalf of Seller in connection with the transactions contemplated
herein contains or will contain any untrue statement of a Material fact or omits
or will omit to state a Material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances under
which it was made.
8.2 COVENANTS OF SELLER.
Seller covenants and agrees with Buyer with respect to the
Property, from the Effective Date until the Closing or earlier termination of
this Agreement:
8.2.1 MAINTAIN INSURANCE. To maintain in full force and effect the fire
and extended coverage insurance upon the Property and public liability insurance
with respect to damage or injury to persons or property which are maintained by
Seller on the Effective Date.
8.2.2 EXCLUSIVE AGREEMENT. To not negotiate or discuss the sale,
financing or other disposition of the Property with any Person or entity other
than Buyer, either through Seller's agents, employees, directors, partners or
directors.
8.2.3 NON-SOLICITATION. The Seller agrees that the Seller and Seller's
Parties shall not, with the intent or effect of having a Tenant terminate its
Tenant Lease of a portion of the Property, actively solicit or recruit existing
Tenants or entertain requests from existing Tenants of the Property for other
properties owned or managed by Seller or Seller's Parties or for properties or
properties where the Seller or Seller's Parties represent the owner as leasing
agent or property manager, currently or in the future, for a period of five (5)
years from the Closing. Notwithstanding any other provisions of this Agreement,
this covenant shall survive the Closing for five (5) years.
8.2.4 OPERATE PROPERTY. After the expiration of the Inspection Period,
except as approved in writing by Buyer, which approval will not be unreasonably
withheld or delayed, to (i) operate the Property in the ordinary course of
Seller's business consistent with historical business practices; (ii) not enter
into new Tenant Leases; (iii) not grant rent concessions to any Tenants; (iv)
not collect rents from Tenants in advance for more than one (1) month; and (v)
not to amend any agreement or other instrument related to any Property or its
business to which it is a party or by which it or any of the Property may be
bound (vi) maintain and repair the Property (vii) to pay all income and
withholding taxes and all ad valorem and other taxes and/or assessments upon its
Property and business as they
24
become due (viii) not to dispose of or encumber any Property (ix) not to do any
act or omit any act which would cause a breach of any contract, commitment or
obligation which would have a material adverse affect on the financial condition
of any Property; (x) not to commit or make any capital expenditure, capital
addition or capital improvement related to any Property; (xi) to give all
notices and obtain all approvals from Governmental Authorities required by law
for the transfer of the Property to Buyer and (xii) not enter into any new
contracts or agreements with regard to the Property which are in addition to the
Business Contracts disclosed to Buyer pursuant to SECTION 7.1. In the event that
Seller takes any action that requires Buyer's written approval under this
Section after the expiration of the Inspection Period, but such action is taken
by Seller prior to the expiration of the Inspection Period, Seller shall provide
Buyer written notice of such action.
8.2.5 INFORMATION. To furnish to Buyer all information concerning the
Property which the Buyer, its agents, consultants or representatives shall
reasonably request and promptly advise Buyer in writing of any material adverse
change in its financial position, assets, or earnings.
8.2.6 COMPLIANCE WITH LEGAL REQUIREMENTS. Seller shall take all action
as may be necessary to comply timely with any and all rules, regulations or
orders of any Governmental Authority Materially affecting the Property,
including orders of any board of fire underwriters or other similar bodies in
connection with the making of repairs and alterations. The Seller shall
promptly, and in no event later than seventy-two (72) hours from the time of its
receipt, notify Buyer of all such orders and notices of requirement, and of any
other notices, summons, or similar documents.
8.2.7 CHANGE IN CONDITION. At or prior to the applicable Closing, Seller
shall promptly notify Buyer of any Material change in any condition with respect
to the Property made known to Seller or of any event or circumstance of which
Seller becomes aware which makes any representation or warranty of Seller to
Buyer under this Agreement untrue or misleading, or any covenant of Seller under
this Agreement incapable or less likely of being performed it being understood
that the obligation to provide notice to Buyer under this Section shall in no
way relieve Seller of any liability for a breach by Seller of any of its
representations, warranties or covenants under this Agreement.
8.2.8 COOPERATION. Seller agrees to take all actions reasonably
necessary or desirable to effect the transactions contemplated herein including
without limitation assisting Buyer with preparation of historical information
respecting the Property (including, but not limited to accounting and legal
information) required by the SEC to be disclosed in the Windrose IPO or required
by Buyer's accountants and counsel for preparation of all documents required for
the filing of a registration statement, preparation of a prospectus and
consummation of the Windrose IPO. Provided, however, that any expense, copying,
faxing or mailing expense incurred by Seller will be paid by Buyer.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller that:
9.1.1 TRUST STATUS. Buyer is a real estate investment trust duly
organized and validly existing under the laws of State of Maryland and is, or
will be on the applicable Closing Date, duly authorized to do business in the
state in which the Property is located in accordance with local law. ▇.▇. ▇▇▇▇▇▇
is the Executive Vice President of Buyer and has been duly authorized and
empowered by Buyer to execute this Agreement and all documents in connection
herewith.
9.1.2 AUTHORITY AND BINDING NATURE. Buyer has all requisite power and
authority to execute, deliver and perform this Agreement and all instruments and
agreements contemplated hereby. Buyer has duly and validly authorized, executed,
and delivered this Agreement and all consents required under
25
Buyer's governance documents or from any third party or from any Governmental
Authority have been obtained, except that Governmental Approval of the Windrose
IPO has not been obtained. All documents to be executed by Buyer and delivered
to Seller and to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc., as applicable, at Closing, will
be duly executed, authorized and delivered by Buyer and will, in accordance with
their terms, constitute the valid, binding, and legal obligations of Buyer.
9.1.3 SOLVENCY. Buyer is a solvent real estate investment trust and (a)
has filed all tax returns which are required to be filed by it and paid all
taxes which are required to be paid by it, and (b) is not in default in the
payment of any taxes levied or assessed against it or any of its assets, or
under any judgment, order, decree, rule or regulation of any court, arbitrator,
administrative agency or other Governmental Authority to which it may be
subject.
9.1.4 VIOLATION OF AGREEMENTS. Neither execution by Buyer of this
Agreement nor the consummation by Buyer of the transactions contemplated by this
Agreement will (a) 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 would
ripen into a default under any agreement, instrument or obligation to which
Buyer is a party; or (b) constitute a violation of any law, order, rule or
regulation applicable to Buyer, of any federal, state or municipal body, or
other governmental or quasi-governmental body having jurisdiction over Buyer.
9.1.5 ASSUMPTION OF THE MORTGAGE. Buyer represents and warrants to
Seller and Seller Parties that, at the Closing, if permitted by Mortgagee, Buyer
will assume liability for, and agree to comply with, to be bound by, and to
fully perform and discharge all covenants and conditions contained in, all of
the Mortgage loan documents arising for the period from and after the Closing.
9.1.6 FULL DISCLOSURE. Neither this Agreement nor any certificate,
statement or other document furnished or to be furnished to Seller by or on
behalf of Buyer in connection with the transactions contemplated herein contains
or will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which it was made.
ARTICLE 10. DAMAGE, DESTRUCTION OR CONDEMNATION
10.1 RISK OF LOSS.
Risk of loss to the Property from fire or other casualty shall
be borne by Seller until the applicable Closing. If the Property or any portion
thereof is Materially damaged or destroyed by fire or any other casualty prior
to Closing, and the Property is not restored by the Closing, Buyer may elect to
(a) terminate this Agreement and the ▇▇▇▇▇▇▇ Money shall be returned to Buyer;
or (b) proceed with the transaction contemplated herein, in which event the
Acquisition Price shall be reduced by the total cost of such repairs as mutually
agreed upon by the Parties and Seller shall be entitled to such insurance as is
paid on the claim of loss. If the Property or any portion thereof is damaged or
destroyed (but not Materially so) by fire or any other casualty prior to
Closing, and the Property is not restored by the Closing, the Parties shall
proceed with the transaction contemplated herein, but the Acquisition Price
shall be reduced by the total cost of such repairs as mutually agreed upon by
the Parties and Seller shall be entitled to such insurance as is paid on the
claim of loss. In the event this Agreement is terminated, the Parties shall have
no further obligation to each other, except for the Buyer's Inspection
Obligations, which shall continue until fully performed.
26
10.2 CONDEMNATION.
In the event that prior to the applicable Closing all or any
portion of the Property becomes the subject of a condemnation proceeding or
threat thereof by any party having the power of eminent domain, Seller shall
immediately notify Buyer thereof in writing and Buyer may elect to (a) terminate
this Agreement and the ▇▇▇▇▇▇▇ Money shall be returned to Buyer; or (b) proceed
with the transaction contemplated herein, in which event Buyer shall be entitled
to receive all proceeds of any award or payment in lieu thereof. For purpose of
this SECTION 10.2, "threat" shall mean the receipt of written notice by Seller
from a condemning authority. In the event this Agreement is terminated, the
Parties shall have no further obligation to each other, except for the Buyer's
Inspection Obligations, which shall continue until fully performed.
ARTICLE 11. DEFAULT
11.1 DEFAULT BY SELLER AND BUYER'S REMEDIES.
11.1.1 DEFAULT BY SELLER. Seller shall be in default under this
Agreement upon the occurrence of any of the following events: (i) any of
Seller's warranties or representations in this Agreement shall be untrue, either
when made or at Closing, which results in a Material effect on the Property; or
(ii) Seller shall fail to perform any covenant or agreement on its part in the
manner required under this Agreement which results in a Material effect on the
Property. Notwithstanding the foregoing, Seller's default, however denominated,
under this Agreement shall be deemed not to have occurred unless and until
within the earlier of five (5) Business Days of (i) Seller having actual
knowledge of such default or (ii) Buyer giving Seller written notice thereof
such default remains uncured, or, if by its nature its incapable of being fully
cured within five (5) Business Days, Seller has not undertaken to cure,
11.1.2 BUYER'S REMEDIES. In the event of a default by Seller under this
Agreement, provided Buyer is not in default, Buyer may, at Buyer's option, do
any one or more of the following: (i) terminate this Agreement by written notice
delivered to Seller at any time on or before the Closing; (ii) enforce specific
performance of this Agreement against Seller (including reasonable attorneys'
fees and court costs incurred by Buyer in such specific performance action);
and/or (iii) exercise any other right or remedy available to Buyer at law or in
equity by reason of such default (including, but not limited to, the recovery of
attorneys' fees and court costs incurred by Buyer).
11.2 DEFAULT BY BUYER AND SELLER'S REMEDIES.
11.2.1 DEFAULT BY BUYER. Buyer shall be in default under this Agreement
if (a) Buyer shall fail to deliver, at the Closing, any of the items to be
delivered under SECTION 6.5, if and only if: (i) all conditions to Buyer's
obligation to close in ARTICLE 4 have been completely satisfied or waived by
Buyer, (ii) all documents to be delivered to Seller pursuant to ARTICLE 6 have
been delivered to Seller or presented for delivery to Seller; (iii) Seller is
not in default under this Agreement; (iv) Buyer shall not have previously
exercised its right to terminate this Agreement as set forth herein; or (b)
Buyer shall have failed to perform any other covenant or agreement on its part
in the manner required under this Agreement which results in a Material effect
on the Property. Notwithstanding the foregoing, Buyer's default, however
denominated, under SECTION 11.2.1(B) of this Agreement shall be deemed not to
have occurred unless and until within the earlier of five (5) Business Days of
(i) Buyer having actual knowledge of such default or (ii) Seller giving Buyer
written notice thereof it remains uncured, or, if by its nature its incapable of
being fully cured within five (5) Business Days, Buyer has not undertaken to
cure.
27
11.2.2 SELLER'S REMEDY. In the event Buyer shall be in default under
SECTION 11.2.1(A) of this Agreement, Seller, as its sole and exclusive remedy,
shall be entitled to terminate this Agreement by giving written notice of such
termination to Buyer and thereafter neither party shall have any further
obligation to the other under this Agreement, except that Seller shall be
entitled to the ▇▇▇▇▇▇▇ Money. In the event Buyer shall be in default under
SECTION 11.2.1(B) of this Agreement, Seller, may, at Seller's option, do any one
or more of the following: (i) terminate this Agreement by written notice
delivered to Buyer at any time on or before the Closing; and (ii) with respect
to Buyer's Inspection Obligations, enforce specific performance of this
Agreement against Buyer (including reasonable attorneys' fees and court costs
incurred by Seller in such specific performance action). In addition, Buyer
shall return to Seller (i) all Due Diligence Documentation; and (b) all
information provided by Seller as part of the Schedules and Exhibits to this
Agreement; or, in the alternative, certifies to the Seller that all such
materials have been destroyed.
ARTICLE 12. SURVIVAL AND INDEMNIFICATION.
12.1 SURVIVAL.
All of the representations, warranties, covenants, agreements and
indemnities of Seller and Buyer in this Agreement shall survive the Closing, and
shall not be deemed to merge upon the acceptance of the Deed by Buyer, for a
period of two (2) years. Notwithstanding the foregoing, (i) the Buyer's
Inspection Obligations shall survive the Closing or earlier termination of this
Agreement until fully performed, and (ii) in the event the transactions provided
for herein are consummated, the Buyer's representation and warranty regarding
assumption of the Mortgage shall survive until fully performed.
12.2 INDEMNIFICATION.
Each Party (the "Indemnifying Party") hereby agrees, at its sole
cost and expense, to indemnify, defend and hold and to pay, on demand, the other
Party, its successors and assigns (the "Indemnified Party"), harmless from and
against 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 type, known
or unknown, asserted against or incurred by the Indemnified Party at any time
arising out of (i) the breach of any representation or warranty of the
Indemnifying Party set forth in this Agreement, (ii) the failure of the
Indemnifying Party to perform any obligation required to be performed by the
Indemnifying Party pursuant to this Agreement; (iii) the ownership,
construction, occupancy, operation, use and maintenance of the Property, in the
case of the Seller, prior to the Closing Date, and, in the case of the Buyer,
after to the Closing Date; (iv) the violation of any Environmental Law, in the
case of the Seller, prior to the Closing Date, and, in the case of the Buyer,
after to the Closing Date; (v) any and all matters arising out of any act,
omission or circumstance occurring, in the case of the Seller, on or prior to
the Closing Date, and, in the case of the Buyer, after to the Closing Date on
the Property (including, without limitation, the presence or release on or from
the Property of Hazardous Materials). The obligation of Indemnifying Party to
indemnify, defend and hold the Indemnified Party harmless as aforementioned
shall survive the Closing of the transaction contemplated by this Agreement and
shall continue thereafter in full force and effect for the benefit of the
Indemnified Party, its successors and assigns for a period of two (2) years,
except indemnification obligations regarding (i) the Buyer's Inspection
Obligations, and (ii) if applicable, the Buyer's assumption of the Mortgage
shall continue in full force and effect without regard to any time limitation.
The obligations of indemnity provided above are subject to the
following terms, conditions and limitations:
28
(a) The aggregate obligation of indemnity of either Party will
not exceed the Acquisition Price as adjusted herein; provided, however, such
limitation will not apply in the case of actual fraud by the indemnifying Party;
(b) Neither Party shall have an indemnity obligation until the
aggregate amount of Losses exceeds Fifty Thousand Dollars ($50,000) (the
"Basket"). Once the Basket is exceeded, the indemnifying Party's obligation will
include not only the excess over the Basket, but also the Basket itself. In the
event the Loss is the result of a default measured by being Material as defined
herein, then for the purposes of determining whether the aggregate Losses exceed
the Basket, a Loss resulting from a Material default shall be counted as the
full amount of such Loss without regard to the Material standard. For example,
if a Loss from a single Material breach of a representation or warranty occurred
in the amount of Twenty Five Thousand Dollars ($25,100), this Loss when
aggregated with other Losses for purposes of determining the Basket shall be
counted as $25,100.
(c) The foregoing limitations shall not apply to a Loss suffered
by Seller as a result of (i) Buyer's default under its Inspection Obligations or
(ii) a claim by the Mortgagee against Seller for obligations under the Mortgage
for the period subsequent to the Closing.
(d) No loss, damage or expense will be deemed to have been
sustained by a Party to the extent of insurance proceeds paid to said Party as a
result of the event giving rise to such right of indemnification; provided,
however, no Party will have any obligation to carry or maintain any insurance as
a result of this provision, whether or said Party currently has, or as of the
Closing will have, any such insurance in place.
ARTICLE 13. MISCELLANEOUS
13.1 RIGHT OF ASSIGNMENT.
Buyer shall have the right, upon prior written notice to Seller,
to assign this Agreement to (a) an operating partnership formed by Buyer with
Buyer as the sole general partner; (b) a limited liability company formed by
Buyer or its operating partnership for the purposes of this acquisition with
Buyer as the sole managing member; or (c) to the Affiliates of Buyer, (each a
"Permitted Assignee"), provided, at the time of such assignment, Buyer and the
Permitted Assignee shall execute and deliver to Seller a written agreement
pursuant to which Buyer unconditionally assigns its interest in this Agreement
and the ▇▇▇▇▇▇▇ Money to Permitted Assignee and the Permitted Assignee
unconditionally assumes and agrees to perform all of the obligations of Buyer
pursuant to this Agreement. Other than the Permitted Assignee, Buyer shall not
assign any or all of its rights and obligations pursuant to this Agreement
(whether by direct or indirect transfer or assignment) without Seller's prior
written consent, which consent may be withheld or granted in Seller's sole and
absolute discretion.
13.2 NOTICES.
All notices, requests and communications under this Agreement
shall be in writing and shall be either (a) hand delivered, (b) sent by
certified mail, return receipt requested, (c) delivered by a recognized
overnight delivery service, or (d) sent by facsimile transmission and addressed
as follows:
13.2.1 To Buyer:
Windrose Medical Properties Trust
c/o Med Properties Management Group, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
29
Attention: ▇.▇. ▇▇▇▇▇▇
Chief Manager
▇▇▇.▇▇▇.▇▇▇▇ (Phone)
▇▇▇.▇▇▇.▇▇▇▇ (Fax)
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Bone Law, P.L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Phone)
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
To Seller:
Park Medical Associates, LLC
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Phone)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, Marks & ▇▇▇▇▇▇▇, PLLC
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇ (Phone)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or communication sent as above provided shall be
deemed given or delivered: (a) upon receipt if personally delivered (provided
that such delivery is confirmed by the courier delivery service); (b) if sent by
United States Mail, on the date appearing on the return receipt, or if there is
no date on such return receipt, the receipt date shall be presumed to be the
postmark appearing on such return receipt; or (c) on the date of actual delivery
by any overnight or expedited delivery service or actual receipt if sent by
facsimile transmission (provided receipt is confirmed as provided above). Any
Party may notify the other Party of a change in such Party's address by
delivering a written notice to the other Party in accordance with this SECTION
13.2.
13.3 REAL ESTATE AGENTS.
Seller will indemnify, defend and hold Buyer harmless from and
against any and all claims, fees, commissions and suits of any real estate
agent, including, but not limited to ▇▇▇ ▇▇▇▇▇▇▇ Partners, with respect to
services claimed to have been rendered in connection with the execution of this
Agreement or the transaction set forth herein to the extent the real estate
agent claims by, through or under Seller. Buyer will indemnify, defend and hold
Seller harmless from and against any and all claims, fees, commissions and suits
of any real estate agent with respect to services claimed to have
30
been rendered in connection with the execution of this Agreement or the
transaction set forth herein to the extent the real estate agent claims by,
through or under Buyer. Buyer has not employed any broker or real estate agent
with respect to this transaction.
13.4 TIME FOR PERFORMANCE.
Time is of the essence in the performance of this Agreement.
13.5 ENTIRE AGREEMENT.
This Agreement, including, but not limited to the Exhibits hereto
and the documents delivered in connection herewith constitute the entire
understanding between the Parties with respect to the transactions contemplated
herein and all prior or contemporaneous agreements and understandings (oral or
written) are merged into this Agreement. No provision of this Agreement may be
waived, amended or terminated except by a written instrument signed by the Party
against whom enforcement of such waiver, amendment or termination is sought.
13.6 APPLICABLE LAW.
This Agreement and the transactions contemplated hereby shall be
governed by and construed in accordance with the laws of the state of North
Carolina without regard to conflicts of laws.
13.7 CAPTIONS.
The captions in this Agreement are inserted for convenience only
and shall not be construed so as to define or limit the intent of this Agreement
or any of the provisions herein.
13.8 BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the
benefit of the Parties and their respective heirs, executors, administrators,
legal representatives, successors and assigns, subject to the provisions of
SECTION 13.1 of this Agreement.
13.9 WAIVER OF CONDITIONS.
Any Party may, at any time, waive any of the conditions to its
obligations under this Agreement; provided, however, that any such waiver must
be in writing and signed by such Party. No waiver by a Party of any breach of
this Agreement by the other Party shall be deemed to be a waiver of any other
breach by such other Party, 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 by such other Party. No failure or delay by a Party to
exercise any right it may have by reason of a default of the other Party shall
operate as a waiver of default or shall prevent the first Party from exercising
its remedies for such default.
13.10 MULTIPLE COUNTERPART ORIGINALS.
This Agreement may be executed in a number of identical
counterparts, each of which constitutes an original and all of which constitute,
collectively, one agreement; provided, however, that in making proof of this
Agreement, it shall not be necessary for any party hereto to produce or account
for more than one such counterpart.
13.11 ATTORNEY'S FEES.
In the event Buyer or Seller finds it necessary to bring an
action at law or other proceeding against the other party to this Agreement to
enforce any of the terms, covenants or conditions hereof or any instrument
executed pursuant to this Agreement, or by reason of any breach or
31
default hereunder of thereunder, the party prevailing in any such action or
proceeding and any appeal thereupon shall be paid all costs and reasonable
attorneys' fees incurred by the prevailing party.
13.12 SEVERABILITY.
In the event any provision of this Agreement is deemed to be
invalid, illegal or unenforceable, the remainder of the Agreement shall be valid
and enforceable.
13.13 CONSTRUCTION OF AGREEMENT.
The parties acknowledge and agree that they have been represented
by counsel and that each of the parties has participated in the drafting of this
Agreement. Accordingly, it is the intention and agreement of the parties that
the language, terms and conditions of this Agreement are not to be construed in
any way against or in favor of any party hereto by reason of the
responsibilities in connection with the preparation of this Agreement.
13.14 IRS REPORTING REQUIREMENTS.
For the purpose of complying with any information reporting
requirements set forth in the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations thereto, that are or may become applicable as a result of
or in connection with the transaction contemplated by this Agreement, including,
but not limited to, any requirements set forth in Income Tax Regulation Section
1.6045-4 and any successor version thereof (collectively the "IRS Reporting
Requirements"), Seller and Buyer hereby designate and appoint the party closing
this transaction (the "Closer") to act as the "Reporting Person" (as that term
is defined in the IRS Reporting Requirements) to be responsible for complying
with any IRS Reporting Requirements. Without limiting the responsibility and
obligations of the Closer as the Reporting Person, Seller and Buyer hereby agree
to comply with any provisions of the IRS Reporting Requirements that are not
identified therein as the responsibility of the Reporting Person, including, but
not limited to, the requirement that Seller and Buyer each retain an original
counterpart of this Agreement for at least four (4) years following the calendar
year of the Closing.
13.15 CALCULATION OF TIME.
If the time period by which any right, option or election
provided under this Agreement must be exercised, or by which any act required
must be performed, or by which the Closing must be held, expires on a Saturday,
Sunday or legal holiday, then such time period shall be automatically extended
through the close of business on the next regular Business Day.
13.16 NO RECORDATION.
Buyer shall not record this Agreement, without the written
consent of Seller in the office of the clerk of any court of the county in which
the Real Property lies. Such recordation shall at the option of Seller, be an
event of default hereunder and Seller shall be entitled to receive all of the
▇▇▇▇▇▇▇ Money as liquidated damages by reason of such default, and this
Agreement shall be null and void and of no further force and effect except for
Buyer's Inspection Obligations, which shall continue until fully performed.
Notwithstanding the foregoing, Seller acknowledges and agrees that the filing of
information with the SEC or any state or governmental agency in furtherance of
the Windrose IPO shall not be a violation of this Section.
13.17 MATERIAL CONSIDERATION.
Buyer acknowledges that all of its agreements set forth in this
Agreement (not just its agreement to pay the Acquisition Price), including but
not limited to its agreements set forth in ARTICLE 7, are material consideration
for Seller's agreement to the terms of this Agreement and but for those
32
agreements Seller would not agree to the terms of this Agreement. Seller
acknowledges that all of its representations, warranties, covenants and
agreements set forth in this Agreement (not just its agreement to convey the
Property), are material consideration for Buyer's agreement to the terms of this
Agreement and but for those representations, warranties, covenants and
agreements Buyer would not agree to the terms of this Agreement.
[SIGNATURE PAGE FOLLOWS]
33
EXECUTED as of the dates listed below.
BUYER:
WINDROSE MEDICAL PROPERTIES TRUST
A Maryland REIT
BY:
----------------------------
TITLE: Executive V.P.
------------------------
DATE: 5/9/02
------------------------
SELLER:
PARK MEDICAL ASSOCIATES, LLC
A NORTH CAROLINA LIMITED LIABILITY COMPANY
BY: P-51 Associates, a North Carolina general partnership
TITLE: Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc., a North Carolina
corporation
Title: Managing partner
By:
------------------------
Title: CEO
---------------------
DATE: May 7, 2002
----------------------
34
EXHIBIT A
PROPERTY DESCRIPTION
Property shall mean generally the Land and Improvements owned by Seller
and located at:
Park Medical Professional Center
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Property shall include the Books and Records, Business Contracts,
Collateral, Engineering and Inspection Materials, Intangible Property, Personal
Property, and Tenant Leases, all as defined in the Agreement.
i
EXHIBIT B
DUE DILIGENCE DOCUMENTS
BUYER'S LIST OF REQUIRED DOCUMENTS FROM SELLER (IF AVAILABLE)
PROPERTY DESCRIPTIVE INFORMATION:
[ ] Photographs of the Real Property in Seller's possession.
[ ] Map location, legal address.
[ ] Site plan and Floor plans.
[ ] Construction budget (if built in last 5 years), one page summary
only.
[ ] Aerial photographs, if available.
[ ] Architect's elevations, in absence of photos.
[ ] Reduced site plan.
[ ] Copy of zoning letter indicating that Property is currently zoned
for its current use.
PROPERTY INCOME AND EXPENSE ITEMS:
[ ] Copy of capital expenditures that are currently budgeted or are
anticipated to be budgeted within the next five years.
CAPITAL BUDGET RECORDS:
[ ] Improvements, all-in costs.
[ ] Capital repairs fund.
ii
EXHIBIT C
PRELIMINARY LEGAL DESCRIPTION OF LAND
iii
EXHIBIT D
FORM OF ON-SITE MAINTENANCE AGREEMENT
[TO BE SUPPLIED]
iv
EXHIBIT E
▇▇▇▇ OF SALE
TO: WINDROSE MEDICAL PROPERTIES TRUST ("BUYER")
FROM: PARK MEDICAL ASSOCIATES, LLC
RE: PARK MEDICAL BUILDING
STATE OF
COUNTY OF
KNOW ALL MEN BY THESE PRESENTS THAT, Park Medical Associates, LLC, a
North Carolina limited liability company, by its manager and in
accordance with its operating agreement ( "Seller"), for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration to it in hand paid by Windrose Medical
Properties Trust, a Maryland REIT ("Buyer") has GRANTED, SOLD,
ASSIGNED, TRANSFERRED, CONVEYED, and DELIVERED and does by these
presents GRANT, SELL, ASSIGN, TRANSFER, CONVEY and DELIVER unto Buyer,
all of Seller's right, title and interest in and to the Personal
Property and Books and Records, (as defined in that certain Contract of
Acquisition dated as of _______________, 2002, (the "Agreement")).
TO HAVE AND TO HOLD the Personal Property and Books and Records unto
Buyer, its successors and assigns, forever, and Seller does hereby bind
itself and its successors to warrant and forever defend, all and
singular, the Personal Property and Books and Records unto Buyer, its
successors and assigns, against every person whomsoever lawfully
claiming or to claim the same, or any part thereof by, through or under
Seller, but not otherwise.
The agreements, covenants, warranties and representations herein set
forth shall be binding upon Seller, its successors and assigns.
IN WITNESS WHEREOF, Seller has caused this ▇▇▇▇ of Sale to be executed
by its duly authorized officer effective as of the _______ day of
____________, 2002.
[SIGNATURE PAGE FOLLOWS]
v
SELLER:
PARK MEDICAL ASSOCIATES, LLC
A NORTH CAROLINA LIMITED LIABILITY COMPANY
By: P-51 Associates
A North Carolina general partnership
Its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
Its: Managing Partner
By: _______________________________
Its: CEO
vi
STATE OF NORTH CAROLINA
COUNTY OF ______________
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the Chief Executive Officer of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Company, Inc., a North Carolina corporation, in its capacity as the
managing partner of P-51 Associates, a North Carolina general partnership, the
Manager in its capacity as Manager of Park Medical Associates, LLC, a North
Carolina general partnership, the within named bargainor, and that he/she, as
such officer, being authorized so to do, executed the within instrument for the
purposes therein contained, by signing the name of P-51 Associates as the
Manager of Park Medical Associates, LLC by himself/herself as such officer of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: _____________________________________________
Notary Public
vii
EXHIBIT F
CERTIFICATE OF NON-FOREIGN STATUS
TO: WINDROSE MEDICAL PROPERTIES TRUST ("Buyer")
FROM: PARK MEDICAL ASSOCIATES, LLC ("Seller")
RE: PARK MEDICAL BUILDING
STATE OF _________________________
COUNTY OF ________________________
KNOW ALL MEN BY THESE PRESENTS BEFORE ME, the undersigned authority, on
this day personally appeared __________________________ ("Affiant"), the
__________________ of Park Medical Associates, LLC, a North Carolina limited
liability company, ("Seller"), who after being duly sworn, upon Seller's oath
did depose and state under penalty of perjury that for purposes of Section 1445
of the Internal Revenue Code of 1986, as amended, in connection with the sale,
transfer and conveyance of that certain property located and particularly
described on EXHIBIT "A" attached hereto and incorporated herein for all
purposes (the "Property"), and in order to inform WINDROSE MEDICAL PROPERTIES
TRUST., a Maryland REIT ("Buyer") that withholding of tax is not required upon
the disposition of the Property by Seller:
(i) That Seller is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as these terms are
defined in the Internal Revenue Code and Income Tax Regulations);
(ii) That Seller's United States taxpayer identification number
is _________________;
(iii) That Seller's mailing address is _________________________
_______________________; and
(iv) Seller understands that this Affidavit may be disclosed to
the Internal Revenue Service by Buyer and that any false statement
contained herein could be punishable by fine, imprisonment or both.
Under penalties of perjury Affiant declares that he/she has examined
this Affidavit, that to the best of his/her knowledge and belief it is true,
correct and complete, and that Affiant has the authority to sign this Affidavit
on behalf of Seller.
[SIGNATURE PAGE FOLLOWS]
SELLER:
PARK MEDICAL ASSOCIATES, LLC
A NORTH CAROLINA LIMITED LIABILITY COMPANY
By: P-51 Associates
viii
A North Carolina general partnership
Its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
Its: Managing Partner
By: ______________________________
Its: CEO
ix
STATE OF NORTH CAROLINA
COUNTY OF _____________
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the Chief Executive Officer of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Company, Inc., a North Carolina corporation, in its capacity as the
managing partner of P-51 Associates, a North Carolina general partnership, the
Manager in its capacity as Manager of Park Medical Associates, LLC, a North
Carolina general partnership, the within named bargainor, and that he/she, as
such officer, being authorized so to do, executed the within instrument for the
purposes therein contained, by signing the name of P-51 Associates as the
Manager of Park Medical Associates, LLC by himself/herself as such officer of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: _____________________________________________
Notary Public
My Commission Expires: ______________________
EXHIBITS TO CERTIFICATE OF NON-FOREIGN STATUS
A DESCRIPTION OF THE PROPERTY
x
EXHIBIT G
TO: WINDROSE MEDICAL PROPERTIES TRUST ("Buyer")
FROM: PARK MEDICAL ASSOCIATES, LLC ("Seller")
RE: PARK MEDICAL BUILDING
SELLER'S CLOSING CERTIFICATE
The undersigned hereby certifies that the representations and
warranties of Seller contained in ARTICLE 8 of that certain Contract of
Acquisition (the "Agreement"), dated _____________, 200__, by and between Park
Medical Associates, LLC, a North Carolina limited liability company, ("Seller"),
and Windrose Medical Properties Trust, a Maryland REIT ("Buyer"), which
representations and warranties are incorporated herein as though set out in full
herein, are true and correct as of the date hereof, shall survive the
consummation of the purchase and sale transaction as contemplated by and for the
time period provided in the Agreement and shall not be deemed to merge upon the
acceptance of the deed delivered in connection with the consummation of such
purchase and sale transaction.
This certificate is given to Buyer with the realization and
understanding that all matters referenced above are material to the decision of
Buyer to close said sale and purchase and Buyer is acting in reliance thereon.
Dated this _____________, 2002
SELLER:
PARK MEDICAL ASSOCIATES, LLC
A NORTH CAROLINA LIMITED LIABILITY COMPANY
By: P-51 Associates
A North Carolina general partnership
Its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
Its: Managing Partner
By: _____________________________
Its: CEO
STATE OF NORTH CAROLINA
COUNTY OF _____________
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the Chief Executive Officer of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Company, Inc., a North Carolina corporation, in its capacity as the
managing partner of P-51 Associates, a North Carolina general partnership, the
Manager in its capacity as Manager of Park Medical Associates, LLC, a North
Carolina general
xi
partnership, the within named bargainor, and that he/she, as such officer, being
authorized so to do, executed the within instrument for the purposes therein
contained, by signing the name of P-51 Associates as the Manager of Park Medical
Associates, LLC by himself/herself as such officer of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company,
Inc.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: _____________________________________________
Notary Public
My Commission Expires: ______________________
xii
EXHIBIT H
SELLER COUNSEL LEGAL OPINION
Buyer shall have received opinions of counsel, which opinions may
be delivered by more one law firm, dated as of the applicable Closing Date for
each Property, addressed to Buyer that:
(a) Seller is a limited liability company duly organized,
validly existing and in good standing in the state of North Carolina and
Seller is duly qualified and authorized to do business in all
jurisdictions where such qualification is required by law.
(b) The Manager of Seller is P-51 Associates, a North Carolina
general partnership. The Manager is a duly organized, validly existing
and in good standing in the State of North Carolina and Manager is duly
qualified and authorized to do business in all jurisdictions where such
qualification is required by law. As Manager, P-51 Associates has the
full power and authority and has been duly authorized as required by the
Seller's members and governance agreements to execute and deliver, and
to perform all obligations of Seller under Agreement and to execute and
deliver all documents, certificates and schedules of Seller under the
Agreement;
(c) The Managing Partner of the Manager is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Company, Inc. a corporation duly organized, validly existing and in good
standing in the State of North Carolina and the Managing Partner is duly
qualified and authorized to do business in all jurisdictions where such
qualification is required by law. The Managing Partner of Manager has
the full power and authority and has been duly authorized as required by
the Manager's members and governance agreements to execute and deliver,
and to perform all obligations of Manager under Agreement and to execute
and deliver all documents, certificates and schedules of Seller under
the Agreement;
(d) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the Chief Executive Officer of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Company, Inc. and has the full power and authority and has been
duly authorized as required by the Managing Partner's Board of Directors
and governance agreements to execute and deliver, and to perform all
obligations of the Managing Partner of Seller under Agreement and to
execute and deliver all documents, certificates and schedules of Seller
under the Agreement;
(e) The Agreement has been duly authorized, executed and
delivered, and is valid, binding and enforceable in accordance with its
respective terms, against Seller except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights generally or by equitable principles, whether
considered in an action at law or in equity;
(f) The execution and delivery of the Agreement and the
consummation of the transactions therein contemplated by Seller will not
result in (1) a breach or violation of (i) any provisions of the
operating agreement or governance documents of Seller, or to the best
knowledge of such counsel, except as set forth on Schedule A attached
hereto (ii) any judgment, order or decree of any court, arbitrator,
administrative agency or other
xiii
governmental authority, or (iii) any material agreement or instrument to
which Seller is a party or by which it is bound; (2) the acceleration of
any obligation of Seller except for the Mortgage if consent to
assumption is not granted by the Mortgagee, if applicable or, (3) the
creation of any lien, claim or encumbrance upon any of the Property;
(g) To the best knowledge of such counsel, Seller has obtained
all approvals and consents required by Governmental Authorities and
other third parties necessary for Seller to sell the Property;
(h) To the best knowledge of such counsel, there are no pending
or threatened proceedings or litigation with respect to, or in any
manner affecting the Property or the operation of any portions thereof
or in which Seller is or will be a party by reason of its ownership or
operation of any portions thereof, including without limitation,
proceedings for or involving collections, condemnations, eminent domain,
alleged building code or zoning violations or personal injuries or
property damage alleged to have occurred at the Property or by reason of
the construction of improvements or use and operation of the Property.
xiv
EXHIBIT I
ASSIGNMENT OF LEASES
This instrument prepared by:
-------------------
----------------------------
----------------------------
----------------------------
ASSIGNMENT OF RENTS AND LEASES
STATE OF NORTH CAROLINA)
_______________ COUNTY)
THIS ASSIGNMENT OF RENTS AND LEASES (the "Assignment") is made as of
the _____ day of ___________, 2002, by PARK MEDICAL ASSOCIATES, LLC, a North
Carolina limited liability company (the "Seller") to WINDROSE MEDICAL PROPERTIES
TRUST, a Maryland REIT (the "Buyer"). As used in this Assignment, except as
otherwise defined herein, all capitalized words and phrases shall have the
meaning attributed to them in that certain Contract of Acquisition dated the
____ day of _____ between Seller and Buyer (the "Agreement").
FOR VALUE RECEIVED, Seller hereby sells, assigns, transfers and sets
over unto Buyer, its successors and assigns, all leases presently existing,
whether written or verbal, or any letting of, or agreement for the use or
occupancy of, any part of the Property described in SCHEDULE 1 attached hereto,
and the Improvements located thereon, and each modification, extension, renewal
and guarantee thereof (collectively, the "Assigned Leases"), including, without
limitation, all the rents, issues, and profits now due and which may hereafter
become due (collectively, the "Rents") and all Collateral under or by virtue of
the Assigned Leases, together with all claims and rights to the payment of money
at any time arising in connection with any rejection or breach of any of the
Assigned Leases under bankruptcy law, including without limitation, all rights
to recover damages arising out of such breach or rejection, all rights to
charges payable by a tenant or trustee in respect of the leased premises
following the entry of an order for relief under bankruptcy law in respect of a
Tenant and all rentals and charges outstanding under the Assigned Lease as of
the date of entry of such order for relief.
Buyer does hereby assume and agree to perform all of Seller's rights,
duties, obligations and liabilities, as landlord, in, to and under the Assigned
Leases to the extent such rights, duties, obligations and liabilities arise, are
to be performed, and are attributable to the period beginning after the Closing
Date.
Buyer agrees to indemnify, defend and hold harmless Seller from and
against any claim (including reasonable attorney's fees) arising out of or
relating to the Assigned Leases to the extent such claim arises after the
Closing Date and is attributable to the period beginning after the Closing Date
so long as such claim is not caused by an act or omission of Seller, its
employees or agents and did not arise prior to the Closing Date. Seller agrees
to indemnify, defend and hold harmless Buyer from and against any claim
(including reasonable attorney's
xv
fees) arising out of or relating to the Assigned Leases to the extent such claim
arose prior to the Closing Date or is attributable to the period ending on the
Closing Date.
This Assignment shall be binding upon Seller, its successors and
assigns and shall inure to the benefit of Buyer, its successors and assigns and
any subsequent owner of the Property.
This Assignment shall be governed by the laws of the State of North
Carolina.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
xvi
IN WITNESS WHEREOF, this Assignment has been duly executed as of the
day and year first above written.
PARK MEDICAL ASSOCIATES, LLC
A NORTH CAROLINA LIMITED LIABILITY COMPANY
By: P-51 Associates
A North Carolina general partnership
Its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
Its: Managing Partner
By: ____________________________
Its: CEO
WINDROSE MEDICAL PROPERTIES TRUST
A Maryland REIT
BY: ________________________
TITLE: ______________________
xvii
STATE OF NORTH CAROLINA
COUNTY OF _____________
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the Chief Executive Officer of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Company, Inc., a North Carolina corporation, in its capacity as the
managing partner of P-51 Associates, a North Carolina general partnership, the
Manager in its capacity as Manager of Park Medical Associates, LLC, a North
Carolina general partnership, the within named bargainor, and that he/she, as
such officer, being authorized so to do, executed the within instrument for the
purposes therein contained, by signing the name of P-51 Associates as the
Manager of Park Medical Associates, LLC by himself/herself as such officer of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: _____________________________________________
Notary Public
My Commission Expires: ______________________
xviii
STATE OF __________________________
COUNTY OF _________________________
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the ______________________________ of
_____________________, a __________________, in its capacity as ________________
of Windrose Medical Properties Trust, a Maryland REIT, the within named
bargainor, and that he/she, as such officer, being authorized so to do, executed
the within instrument for the purposes therein contained, by signing the name of
_______________ as the ______________________ by himself/herself as such officer
of __________________.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: ____________________________________________
Notary Public
My Commission Expires: ______________________
xix
EXHIBIT J
ESTOPPEL CERTIFICATE
PREMISES: _________________
LANDLORD: ________________
TENANT: __________________
With specific reference to a lease agreement between Seller and Tenant
for the Premises described above, a true and correct copy of which is attached
hereto as EXHIBIT "A" (the "Lease"), Tenant certifies as follows:
1. The Lease and all amendments and other documents relating thereto are
included in EXHIBIT A and there are no other agreements or documents between the
parties relating to the occupancy of the Premises by Tenant.
2. The Lease is in full force and effect and has not been modified
(except as may be reflected in documents included as part of EXHIBIT A).
3. All rental required to be paid under the Lease has been paid through
______________, 2002.
4. Tenant is now occupying the Premises.
5. There is no default on the part of Landlord under the Lease and no
event has occurred which, with the passage of time or the giving of notice or
both would constitute a default by Landlord thereunder.
6. Tenant has no right of offset, defense, claim or counterclaim,
including, without limitation, (a) claims to "free" rent, (b) concessions, (c)
rebates or (d) abatements in rent, under the Lease.
7. Tenant has no option to lease space in the building in which the
Premises are located, except as may be set forth in EXHIBIT A.
8. Tenant has no option to purchase the Premises, the building in which
the Premises are located or any portion thereof.
9. Tenant has deposited the sum of $ _________ with _______________ as
security for the performance of Tenant's obligations under the Lease.
10. This certificate is binding upon the undersigned and may be relied
upon by Landlord, or the prospective Buyer of the building in which the Premises
are located, Windrose Medical Properties Trust or its assignees.
IN WITNESS WHEREOF, Tenant has executed this Estoppel Certificate this
_____day of ____________________, 2002.
TENANT:
------------------------------------------
By:
---------------------------------------
xx
Print Name:
-------------------------------
Print Title:
------------------------------
xxi
EXHIBIT K
ASSIGNMENT OF BUSINESS CONTRACTS, WARRANTIES AND COLLATERAL
This instrument prepared by:
-------------------
----------------------------
----------------------------
----------------------------
ASSIGNMENT ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
_______________ COUNTY)
THIS ASSIGNMENT OF BUSINESS CONTRACTS AND WARRANTIES (the "Assignment")
is made as of the _____ day of ___________, 2002, by PARK MEDICAL ASSOCIATES,
LLC, a North Carolina limited liability company (the "Seller") to WINDROSE
MEDICAL PROPERTIES TRUST, a Maryland REIT (the "Buyer"). As used in this
Assignment, except as otherwise defined herein, all capitalized words and
phrases shall have the meaning attributed to them in that certain Contract of
Acquisition dated the ____ day of _____ between Seller and Buyer (the
"Agreement").
FOR VALUE RECEIVED, Seller hereby sells, assigns, transfers and sets
over unto Buyer, its successors and assigns, the Business Contracts set forth on
Exhibit A attached hereto and all Warranties set forth on Exhibit B attached
hereto.
Buyer does hereby assume and agree to perform all of Seller's rights,
duties, obligations and liabilities, in, to and under the Business Contracts and
Warranties to the extent such rights, duties, obligations and liabilities arise,
are to be performed, and are attributable to the period beginning after the
Closing Date.
Buyer agrees to indemnify, defend and hold harmless Seller from and
against any claim (including reasonable attorney's fees) arising out of or
relating to the Business Contracts and Warranties to the extent such claim
arises after the Closing Date and is attributable to the period beginning after
the Closing Date so long as such claim is not caused by an act or omission of
Seller, its employees or agents and did not arise prior to the Closing Date.
Seller agrees to indemnify, defend and hold harmless Buyer from and against any
claim (including reasonable attorney's fees) arising out of or relating to the
Business Contracts and Warranties to the extent such claim arose prior to the
Closing Date or is attributable to the period ending on the Closing Date.
This Assignment shall be binding upon Seller, its successors and
assigns and shall inure to the benefit of Buyer, its successors and assigns and
any subsequent owner of the Property.
This Assignment shall be governed by the laws of the State of North
Carolina.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
xxii
IN WITNESS WHEREOF, this Assignment has been duly executed as of the
day and year first above written.
PARK MEDICAL ASSOCIATES, LLC
A NORTH CAROLINA LIMITED LIABILITY COMPANY
By: P-51 Associates
A North Carolina general partnership
Its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
Its: Managing Partner
By: ___________________________
Its: CEO
WINDROSE MEDICAL PROPERTIES TRUST
A Maryland REIT
BY: ________________________
TITLE: ______________________
xxiii
STATE OF NORTH CAROLINA
COUNTY OF ______________
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the Chief Executive Officer of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Company, Inc., a North Carolina corporation, in its capacity as the
managing partner of P-51 Associates, a North Carolina general partnership, the
Manager in its capacity as Manager of Park Medical Associates, LLC, a North
Carolina general partnership, the within named bargainor, and that he/she, as
such officer, being authorized so to do, executed the within instrument for the
purposes therein contained, by signing the name of P-51 Associates as the
Manager of Park Medical Associates, LLC by himself/herself as such officer of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: _____________________________________________
Notary Public
My Commission Expires: ______________________
xxiv
STATE OF
--------------------------
COUNTY OF
-------------------------
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the ______________________________ of
_____________________, a __________________, in its capacity as ________________
of Windrose Medical Properties Trust, a Maryland REIT, the within named
bargainor, and that he/she, as such officer, being authorized so to do, executed
the within instrument for the purposes therein contained, by signing the name of
_______________ as the ______________________ by himself/herself as such officer
of __________________.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: _________________________________________
Notary Public
My Commission Expires: ______________________
xxv
EXHIBIT L
TO: PARK MEDICAL ASSOCIATES, LLC ("Seller")
FROM: WINDROSE MEDICAL PROPERTIES TRUST ("Buyer")
RE: PARK MEDICAL BUILDING
BUYER'S CLOSING CERTIFICATE
The undersigned hereby certifies that the representations and
warranties of Buyer contained in ARTICLE 9 of that certain Contract of
Acquisition (the "Agreement"), dated _____________, 200__, by and between Park
Medical Associates, LLC, a North Carolina limited liability company, ("Seller"),
and Windrose Medical Properties Trust, a Maryland REIT ("Buyer"), which
representations and warranties are incorporated herein as though set out in full
herein, are true and correct as of the date hereof, shall survive the
consummation of the purchase and sale transaction as contemplated by and for the
time period provided in the Agreement and shall not be deemed to merge upon the
acceptance of the deed delivered in connection with the consummation of such
purchase and sale transaction.
This certificate is given to Seller with the realization and
understanding that all matters referenced above are material to the decision of
Seller to close said sale and purchase and Seller is acting in reliance thereon.
Dated this _____________, 2002
WINDROSE MEDICAL PROPERTIES TRUST
A MARYLAND REIT
By: _____________________________
Title: _____________________________
Date: _____________________________
xxvi
STATE OF
--------------------------
COUNTY OF
-------------------------
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State ____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the ______________________________ of
_____________________, a __________________, in its capacity as
__________________ of Windrose Medical Properties Trust, a Maryland REIT, the
within named bargainor, and that he/she, as such officer, being authorized so to
do, executed the within instrument for the purposes therein contained, by
signing the name of _______________ as the ______________________ by
himself/herself as such officer of __________________.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires: _________________________________________
Notary Public
My Commission Expires: ______________________
xxvii
EXHIBIT M
BUYER COUNSEL LEGAL OPINION
Seller shall have received opinions of counsel, which opinions may
be delivered by more one law firm, dated as of the applicable Closing Date for
each Property, addressed to Seller that: [NOTE: THIS WILL NEED TO BE EXPANDED TO
THE REIT AND ANY SUBSIDIARY ENTITIES FORMED TO ACCOMPLISH THE TRANSACTIONS
PROVIDED FOR HEREIN.]
(a) Buyer is a real estate investment trust duly organized,
validly existing and in good standing in its state of formation and
Buyer is duly qualified and authorized to do business in all
jurisdictions where such qualification is required by law. The
___________ of Buyer is ______________. As ________________,
_______________ has the full power and authority and has been duly
authorized as required by the Buyer's governance agreements to execute
and deliver, and to perform all obligations of Buyer under Agreement and
to execute and deliver all documents, certificates and schedules of
Buyer under the Agreement;
(b) The Agreement has been duly authorized, executed and
delivered, and is valid, binding and enforceable in accordance with its
respective terms, against Buyer except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights generally or by equitable principles, whether
considered in an action at law or in equity;
(c) The execution and delivery of the Agreement and the
consummation of the transactions therein contemplated by Buyer will not
result in (1) a breach or violation of (i) any provisions of the
governance documents of Buyer, or to the best knowledge of such counsel,
except as set forth on SCHEDULE A attached hereto (ii) any judgment,
order or decree of any court, arbitrator, administrative agency or other
governmental authority, or (iii) any material agreement or instrument to
which Buyer is a party or by which it is bound;
(d) To the best knowledge of such counsel, Buyer has obtained
all approvals and consents required by Governmental Authorities and
other third parties necessary for Buyer to acquire the Property and
lease the Property, and all consents, permits, licenses, and
certificates of need or any other approvals or authorizations from
Governmental Authorities or other third parties which are necessary to
permit the transfer or use of the Property in accordance with the
provisions of this Agreement and to obtain Medicare and Medicaid
reimbursement for furnishing health care services;
xxviii
SCHEDULE 7.6.1
BUYER'S INSURANCE
SCHEDULE 8.1.3
TAX BILLS
xxix
SCHEDULE 8.1.6
LICENSES AND PERMITS
xxx
SCHEDULE 8.1.9
LIST OF TENANT LEASES
xxxi
SCHEDULE 8.1.10
RENT ROLL
xxxii
SCHEDULE 8.1.11
COLLATERAL
xxxiii
SCHEDULE 8.1.12
LEASING COMMISSION AGREEMENTS AND PROPERTY MANAGEMENT AGREEMENTS
xxxiv
SCHEDULE 8.1.13
BUSINESS CONTRACTS
xxxv
SCHEDULE 8.1.14
INVENTORY OF FIXTURES, MAJOR EQUIPMENT AND SYSTEMS
xxxvi
SCHEDULE 8.1.15
INVENTORY OF PERSONAL PROPERTY
xxxvii
SCHEDULE 8.1.16
WARRANTIES
xxxviii
SCHEDULE 8.1.17
INTANGIBLE PROPERTY
xxxix
SCHEDULE 8.1.18
EXCLUDED ASSETS
xl
SCHEDULE 8.1.19
THIRD PARTY STUDIES
xli
SCHEDULE 8.1.20
CURRENT TITLE POLICY
xlii
SCHEDULE 8.1.21
SURVEY
xliii
SCHEDULE 8.1.22
MORTGAGE DOCUMENTATIONS AND AMORTIZATION TABLE
A certain loan to Park Medical Associates made by General Electric Capital
Corporation (the "Mortgagee") (Loan Number 76-0000912) dated the 8th day of
August, 1999 in the original principal amount of $4,000,000.00 (the "Mortgage")
with an estimated current balance of $_______________ through payment made on
__________________. The loan is secured by a certain Deed of Trust on the Real
Property.
xliv
SCHEDULE 8.1.25
INSURANCE POLICIES
xlv
SCHEDULE 8.1.31
STRUCTURAL DEFECTS
xlvi