[EXHIBIT 10.4.1]
AMENDED AND RESTATED
CONTRACT OF ACQUISITION
BY AND BETWEEN
WINDROSE MEDICAL PROPERTIES, L.P.
("BUYER")
AND
PARK MEDICAL ASSOCIATES, LLC
("SELLER")
DATED THE 8TH DAY OF JULY, 2002
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS...................................................................1
SECTION 1.1 DEFINITIONS...............................................................1
ARTICLE 2 ▇▇▇▇▇▇▇ MONEY.................................................................6
SECTION 2.1 ▇▇▇▇▇▇▇ MONEY DEPOSIT.....................................................6
SECTION 2.2 DISPOSITION OF ▇▇▇▇▇▇▇ MONEY..............................................6
ARTICLE 3 CLOSING.......................................................................8
SECTION 3.1 CLOSING...................................................................8
ARTICLE 4 CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS...............................8
SECTION 4.1 CONDITIONS TO THE BUYER'S OBLIGATIONS TO CLOSE............................8
SECTION 4.2 FAILURE OF CONDITIONS TO BUYER'S OBLIGATIONS.............................11
ARTICLE 5 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.................................11
SECTION 5.1 CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE.....................11
SECTION 5.2 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS............................12
ARTICLE 6 PROVISIONS WITH RESPECT TO CLOSING...........................................12
SECTION 6.1 CLOSING COSTS............................................................12
SECTION 6.2 APPORTIONMENT OF TAXES, INCOME AND EXPENSES..............................12
SECTION 6.3 SELLER'S CLOSING DELIVERABLES............................................13
SECTION 6.4 OTHER DELIVERABLES TO BUYER..............................................14
SECTION 6.5 BUYER'S CLOSING DELIVERABLES.............................................15
ARTICLE 7 INSPECTION PERIOD............................................................15
SECTION 7.1 INSPECTION PERIOD........................................................15
SECTION 7.2 PRELIMINARY INSPECTION REPORT............................................16
SECTION 7.3 SELLER'S PRELIMINARY INSPECTION REPORT REPLY.............................17
SECTION 7.4 DUE DILIGENCE DOCUMENTATION..............................................18
SECTION 7.5 LAND SUITABILITY STUDIES.................................................18
SECTION 7.6 INSPECTION RIGHTS AND OBLIGATIONS OF BUYER...............................18
SECTION 7.7 INSPECTION OBLIGATIONS OF SELLER.........................................19
SECTION 7.8 GOVERNMENTAL AUTHORITIES.................................................19
SECTION 7.9 UTILITY AND OTHER SERVICE................................................19
SECTION 7.10 AUDIT REQUIREMENTS.......................................................20
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS....................................20
SECTION 8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.................................20
SECTION 8.2 COVENANTS OF SELLER......................................................28
ARTICLE 9 REPRESENTATIONS AND WARRANTIES OF BUYER......................................29
ARTICLE 10 DAMAGE, DESTRUCTION OR CONDEMNATION..........................................30
SECTION 10.1 RISK OF LOSS.............................................................30
SECTION 10.2 CONDEMNATION.............................................................31
ARTICLE 11 DEFAULT......................................................................31
SECTION 11.1 DEFAULT BY SELLER AND BUYER'S REMEDIES...................................31
SECTION 11.2 DEFAULT BY BUYER AND SELLER'S REMEDIES...................................32
ARTICLE 12 SURVIVAL AND INDEMNIFICATION.................................................32
SECTION 12.1 SURVIVAL.................................................................32
SECTION 12.2 INDEMNIFICATION..........................................................32
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ARTICLE 13 MISCELLANEOUS................................................................33
SECTION 13.1 RIGHT OF ASSIGNMENT......................................................33
SECTION 13.2 NOTICES..................................................................34
SECTION 13.3 REAL ESTATE AGENTS.......................................................35
SECTION 13.4 TIME FOR PERFORMANCE.....................................................35
SECTION 13.5 ENTIRE AGREEMENT.........................................................35
SECTION 13.6 APPLICABLE LAW...........................................................35
SECTION 13.7 CAPTIONS.................................................................35
SECTION 13.8 BINDING EFFECT...........................................................36
SECTION 13.9 WAIVER OF CONDITIONS.....................................................36
SECTION 13.10 MULTIPLE COUNTERPART ORIGINALS...........................................36
SECTION 13.11 ATTORNEY'S FEES..........................................................36
SECTION 13.12 SEVERABILITY.............................................................36
SECTION 13.13 CONSTRUCTION OF AGREEMENT................................................36
SECTION 13.14 IRS REPORTING REQUIREMENTS...............................................36
SECTION 13.15 CALCULATION OF TIME......................................................37
SECTION 13.16 NO RECORDATION...........................................................37
SECTION 13.17 MATERIAL CONSIDERATION...................................................37
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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AMENDED AND RESTATED CONTRACT OF ACQUISITION
THIS AMENDED AND RESTATED CONTRACT OF ACQUISITION (the "Agreement") is
made as of the 8th day of July, 2002, by and among WINDROSE MEDICAL PROPERTIES,
L.P., (herein "Windrose" or "Buyer") a Virginia limited partnership with
WINDROSE MEDICAL PROPERTIES TRUST, a Maryland REIT as its sole general partner,
WINDROSE MEDICAL PROPERTIES TRUST, a Maryland REIT and PARK MEDICAL ASSOCIATES,
LLC, a North Carolina limited liability company ("Seller").
RECITALS
WHEREAS, WINDROSE MEDICAL PROPERTIES TRUST, as Buyer and Seller entered
into a Contract of Acquisition (the "Original Agreement") dated the 7th day of
May, 2002; and,
WHEREAS, WINDROSE MEDICAL PROPERTIES TRUST does hereby assign its
rights and obligations under the Original Agreement to WINDROSE MEDICAL
PROPERTIES, L.P., which assignment is hereby acknowledged by Seller and WINDROSE
MEDICAL PROPERTIES, L.P., does hereby accept such assignment and unconditionally
assumes and agrees to perform all of the obligations of WINDROSE MEDICAL
PROPERTIES TRUST pursuant to the Original Agreement; and,
WHEREAS, Windrose and Seller desire to amend and restate this Agreement
upon the terms and conditions set forth herein; and,
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
SECTION 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
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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.
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.
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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.
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 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 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
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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 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
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defect or fact, in excess of Twenty Five Thousand Dollars ($25,000.00); or (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.
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" shall 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
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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
SECTION 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 two (2) 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 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; the ▇▇▇▇▇▇▇ Money shall be returned to Buyer and Buyer shall return
all information supplied by Seller in the Schedules and Exhibits to this
Agreement or, in the alternative, 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.
SECTION 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
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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 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.
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. In the event of a termination pursuant to
this Section, except for the resolution of any dispute with respect to the
▇▇▇▇▇▇▇ Money, 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.
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 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. In the event of a termination
pursuant to this Section, except for the resolution of any dispute with respect
to the ▇▇▇▇▇▇▇ Money, 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.
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ARTICLE 3 CLOSING
SECTION 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
SECTION 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 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
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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.
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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).
4.1.15 LEASE RENEWALS. Seller shall execute and deliver to Buyer at
Closing the following lease renewals and/or modifications:
4.1.15.1 LAB CORP. Lap Corp. shall agree to relocate
to Suite 107 and enter into a three (3) year lease for such space at its current
square foot rental and with its current expense base stop. All tenant
improvements and leasing commissions resulting therefrom shall be paid by
Seller.
4.1.15.2 UROLOGY CENTER. Urology Center shall agree
to expand to Suite 112 and enter into a five (5) year lease renewal for its
existing space in Suite 113 and for Suite 112 at its current square foot rental
and with its current expense base stop. All tenant improvements and leasing
commissions resulting therefrom shall be paid by Seller.
4.1.15.3 MECKLENBURG GROUP. Mecklenburg Group shall
agree to extend its lease on Suite 200 until _______ at its current square
footage rental and with its current expense base stop. All tenant improvements
and leasing commissions resulting therefrom shall be paid by Seller.
4.1.15.4 PIEDMONT ENDOCRINOLOGY. Piedmont
Endocrinology shall acknowledge and agree that the one (1) year automatic
renewals under its current lease agreement are in full force and effect and that
its current lease term expires July 31, 2003.
4.1.15.5 HEALTH SOUTH. Health South shall agree to
extend its lease on Suite 209 until _______ at its current square footage rental
and with its current expense base stop. All tenant improvements and leasing
commissions resulting therefrom shall be paid by Seller.
4.1.16 MORTGAGE ESCROWS. All escrows currently held by the Mortgagee
as hereunder defined for capital repairs and replacements, tenant improvements
and leasing commissions shall be transferred to Buyer at Closing, without credit
to Seller and such amounts shall not be less than $100,000.
4.1.17 SUITE 210. Seller shall lease Suite 210 for a period of not
less than five years at ______ per square foot and an expense stop of not more
than $______ per square foot. In such event all tenant improvements and leasing
commissions shall be paid by Seller. All tenant improvements shall be subject to
the reasonable approval of Buyer. In the event Suite 210 is not leased by
Closing as aforesaid, Buyer shall withhold from the Acquisition Price an amount
equal to Forty Six Thousand Two Hundred Forty Dollars ($46,240.00) (the
"Holdback") for tenant improvements for the repair and tenant improvement of
Suite 210. In the event that the actual costs incurred by Buyer for such repairs
and tenant improvements are less than the Holdback, then such amount shall be
paid by Buyer to Seller. Buyer shall undertake such repairs with reasonable
promptness following Closing and complete such repairs on or before
_____________. On or before ___________, Buyer shall provide Seller with an
accounting of the expenditures from the Holdback and pay to Seller the balance
of any remaining funds from the Holdback, if any. Such repairs shall be made in
accordance with the building standards of Buyer consistent with the use of Suite
210 as medically related office space.
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SECTION 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
SECTION 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, Six Hundred, and Fifty Thousand Dollars ($5,650,000) 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.
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5.1.6 ON-SITE MAINTENANCE AGREEMENT. Buyer shall have entered into
the On-Site Maintenance Agreement with the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
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).
SECTION 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
SECTION 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.
SECTION 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
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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 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.
SECTION 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.
13
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;
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, including, but not
limited to the payment and satisfaction of all amounts due the ▇▇▇▇▇▇▇▇ Company
or other third parties as set forth on SCHEDULE 8.1.12;
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 All lease renewals as set forth in 4.1.15.
6.3.16 Such other documents as are reasonably required by Buyer to
carry out the terms of this Agreement; and
6.3.17 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.
SECTION 6.4 OTHER DELIVERABLES TO BUYER.
At the Closing and as a condition of Closing (unless received
earlier), Buyer shall receive the following:
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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.
SECTION 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;
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
SECTION 7.1 INSPECTION PERIOD.
Buyer acknowledges and agrees that it has conducted an
inspection of the Property and agrees to deliver to Seller its Preliminary
Inspection Report or its election to
15
terminate this Agreement on or before July 18, 2002. In the event Buyer elects
to terminate this Agreement, such termination shall be subject to the provisions
of SECTION 2.2.1, the ▇▇▇▇▇▇▇ Money shall be returned 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. In the event Buyer fails to deliver the
Preliminary Inspection Report or Buyer's election to terminate this Agreement to
Seller on or before July 18, 2002, this Agreement shall terminate, the ▇▇▇▇▇▇▇
Money shall be paid 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. The Inspection Period 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.
SECTION 7.2 PRELIMINARY INSPECTION REPORT.
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. Buyer
acknowledges and agrees that it has previously advised Seller of deficiencies
related to the current state of the HVAC equipment located on the roof, the
condition of the roof, the condition of the common areas and elevators, the
current condition of Suites 107 and Suite 210 and that this Agreement reflects
adjustments to the Acquisition Price, the Holdback, disposition of the Mortgage
Escrows to the benefit of Buyer for
16
repairs and replacements and the renewal or modification of certain leases as
set forth in 4.1.15 to resolve such matters. Buyer further acknowledges and
agrees that the foregoing matters shall not be raised by Buyer in the
Preliminary Inspection Report as matters requiring further action of Buyer,
except as otherwise set forth in this Agreement. Buyer further acknowledges and
agrees that it has no present knowledge of any other matters relating to the
operational of physical condition of the Property requiring additional action or
which may impose additional requirements of Seller, other than as set forth in
this Agreement.
7.2.4 Such other matters (except for the matters set forth in
SECTION 7.2.3) that have been made known to Buyer during the Inspection Period
that Buyer reasonably determines require additional action or impose additional
requirements on Seller.
7.2.5 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.
7.2.6 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.
SECTION 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, the ▇▇▇▇▇▇▇ Money shall be returned
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. For purposes of this
Agreement, the Preliminary Inspection Report Reply 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 Reply, 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 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 and this Agreement shall terminate, the ▇▇▇▇▇▇▇ Money shall be paid 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. 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, the ▇▇▇▇▇▇▇ Money shall be
17
returned 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. 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.
SECTION 7.4 DUE DILIGENCE DOCUMENTATION.
Buyer acknowledges receipt from Seller of 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.
SECTION 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.
SECTION 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
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Seller which shall not be 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 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.
SECTION 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.
SECTION 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.
SECTION 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.
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SECTION 7.10 AUDIT REQUIREMENTS.
Buyer acknowledges that Seller has allowed Buyer to cause an
audit (the "Audit") to be performed by Buyer's certified public accounting firm
with respect to the Property consistent with the 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
acquire any additional information that may be required by the SEC accounting,
reporting and disclosure requirements in order to include this transaction in
the Windrose IPO. Buyer is not aware, as of the date hereof, of any such
additional requirements.
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 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
20
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 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, and 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.
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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 set forth in the copies of the Tenant Leases provided to
Buyer with the execution of this Agreement; or, (iii) as required by 4.1.15. 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). All amounts due
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the ▇▇▇▇▇▇▇▇ Company or any other third party as set forth on SCHEDULE 8.1.12
shall be paid by Seller at or before Closing.
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.
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
23
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 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
24
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 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.
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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.
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
26
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, 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
27
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.
SECTION 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 or as required by 4.1.15 or 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 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
28
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 PARTNERSHIP AND TRUST STATUS. Buyer is a Virginia limited
partnership duly organized and validly existing under the laws of State of
Virginia 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. Windrose Medical Properties Trust is a real estate investment trust
duly organized and validly existing under the laws of State of Maryland and the
sole general partner of Buyer. ▇.▇. ▇▇▇▇▇▇ is the Executive Vice President of
Windrose Medical Properties Trust and has been duly authorized and empowered by
Windrose Medical Properties Trust to execute this Agreement and all documents in
connection herewith as the sole general partner.
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 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,
29
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 limited partnership 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. Windrose Medical Properties Trust is a solvent Maryland REIT 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 on
terms and conditions reasonably acceptable to Buyer, 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
SECTION 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
the ▇▇▇▇▇▇▇ Money shall be returned 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; 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
30
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.
SECTION 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 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; 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
SECTION 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 is 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 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; (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).
31
SECTION 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 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 is incapable of
being fully cured within five (5) Business Days, Buyer has not undertaken to
cure.
11.2.2 SELLER'S REMEDY. In the event Buyer shall be in default under
SECTION 11.2.1 of this Agreement, Seller, as its sole and exclusive remedy,
shall be entitled to terminate this Agreement by written notice delivered to
Buyer at any time on or before the Closing 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) and Seller shall be entitled to the ▇▇▇▇▇▇▇
Money. In addition, Seller, may, at its option, 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,
certify to the Seller that all such materials have been destroyed.
ARTICLE 12 SURVIVAL AND INDEMNIFICATION.
SECTION 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.
SECTION 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
32
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:
12.2.1.1 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;
12.2.1.2 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.
12.2.1.3 The foregoing limitations shall not apply to
a Loss suffered by Seller as a result of (i) Buyer's default under its
Inspection Obligations; (ii) a claim by the Mortgagee against Seller for
obligations under the Mortgage for the period subsequent to the Closing; or
(iii) to a default by one of the Parties prior to or at Closing which shall be
governed by ARTICLE 11.
12.2.1.4 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
SECTION 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
33
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.
SECTION 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:
To Buyer:
Windrose Medical Properties, L.P.
c/o Med Properties Management Group, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇
Chief Manager
▇▇▇.▇▇▇.▇▇▇▇ (Phone)
▇▇▇.▇▇▇.▇▇▇▇(Fax)
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
General Counsel
Windrose Medical Properties Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇ (Phone)
▇▇▇.▇▇▇.▇▇▇▇ (Fax)
To Seller:
Park Medical Associates, LLC
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Phone)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
34
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.
SECTION 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 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.
SECTION 13.4 TIME FOR PERFORMANCE.
Time is of the essence in the performance of this Agreement.
SECTION 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.
SECTION 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.
SECTION 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.
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SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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 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.
SECTION 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.
SECTION 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.
SECTION 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
36
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.
SECTION 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.
SECTION 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.
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 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]
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EXECUTED as of the dates listed below.
BUYER:
WINDROSE MEDICAL PROPERTIES, L.P.
A Virginia limited partnership
BY: /s/ ▇. ▇. ▇▇▇▇▇▇
----------------------------------------------------
TITLE: Executive Vice President
-------------------------------------------------
DATE:
--------------------------------------------------
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: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: CEO
DATE:
------------------------------------
38