LAND SALE CONTRACT
DATED AS OF: May 1, 1996
BETWEEN: HEALTHFIRST MEDICAL GROUP, P.C.
000 Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000 ("Seller")
AND: HEALTHFIRST PROPERTIES, L.L.C
000 Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000 ("Purchaser")
Seller owns the real properties legally described on the attached
Exhibit A (the "Broadway Property"), Exhibit B (the "Westside Property") and
Exhibit C (The "Tualatin Property") (individually a "Property" and collectively,
the "Properties").
Seller desires to sell the Properties to Purchaser and Purchaser
desires to buy the Properties from Seller for the price and on the terms and
conditions set forth in this Contract of Sale (the "Contract").
Seller and Purchaser also contemplate that, upon Purchaser's purchase
of the Properties, purchaser shall immediately lease the Properties to Seller.
SECTION 1 PURCHASE PRICE: PAYMENT
1.1 TOTAL PURCHASE PRICE
Purchaser promises to pay Seller as the total Purchase Price for the
Properties the sum of $12,550,000 (the "Purchase Price"), which shall be
allocated $2,550,000 to the Broadway Property, $3,550,000 to the Westside
Property, and $6,450,000 to the Tualatin Property.
1.2 PAYMENT OF PURCHASE PRICE
The Purchase Price shall be paid as follows:
1.2.1 Purchaser shall pay not later than thirty (30) days following
the Closing Date (hereinafter defined) a sum equal to the initial capital
contributions made by Purchaser's members on or before such date as a down
payment toward the Purchase Price (the "Down Payment Amount"), which shall be
allocated twenty percent (20%) to the Broadway Property, twenty-eight percent
(28%) to the Westside Property, and fifty-two percent (52%) to the Tualatin
Property.
1.2.2 Interest on the remaining principal balance shall accrue at the
rate of eight (8) percent (8%) per annum from the
LAND SALE CONTRACT
Closing Date until paid in full. The unpaid balance of the Purchase Price shall
be paid in equal principal and interest installments based on a twenty (20) year
amortization period, with the first installment due on June 1, 1996 and with
subsequent installments due on the first day of each month thereafter through
and including the Maturity Date (hereinafter defined). Unless otherwise
directed by Purchaser in writing, Seller shall apply all installments ratably to
the amount owing as the purchase price for the Broadway Property, Westside
Property and Tualatin Property in the percentages set forth in Section 1.2.1.
1.2.3 The Purchase Price and all accrued but unpaid interest shall be
paid in full on or before April 30, 2016.
1.2.4 Upon closing of the transaction contemplated hereby, Purchaser
shall lease to Seller and Seller shall lease from Purchaser the Properties,
pursuant to leases substantially in the form of the lease attached hereto as
Exhibit D (collectively, the "Leases"). The Leases shall take effect and the
Lease terms shall commence on May 1, 1996.
1.3 PREPAYMENTS
Purchaser may prepay all or any portion of the unpaid principal at any
time without penalty.
1.4 PLACE OF PAYMENTS
All payments to Seller shall be made to Seller at the address of
Seller shown above or to such other place or person as Seller may designate by
written notice to Purchaser.
1.5 LATE CHARGE
If any payment required under this Contract is not received by Seller
within fifteen (15) days of the date on which such payment is due, Purchaser
shall pay to Seller on demand a late charge in an amount equal to five percent
(5%) of the overdue payment. Seller and Purchaser agree that the late charge is
intended to be a reasonable approximation of actual damages incurred by such
overdue payment, which damages are difficult to estimate.
1.6 SENIOR ENCUMBRANCES. Purchaser acknowledges that the Properties are
subject to the terms of those encumbrances set forth on the attached Exhibit E
(the "Senior Encumbrances"). This Contract wraps around, and includes in the
Purchase Price, the unpaid balance of the Senior Encumbrances. Although this
Contract is subject to the Senior Encumbrances, Purchaser has not assumed
payment of the Senior Encumbrances. So long as Purchaser is not in default
hereunder, Seller agrees to pay all installments of principal and interest due
under the Senior Encumbrances as and
LAND SALE CONTRACT 2
when the same become due and payable. In the event that Seller fails to make any
payments on the Senior Encumbrances, then Purchaser shall have the right and
option (but not the obligation) to make such payments on behalf of Seller, and
an amount equal to all of such sums paid by Purchaser on the Senior Encumbrances
shall be credited against the next maturing installment(s) of principal and
interest to become due hereunder. Subject to the Leases, Purchaser shall comply
with the provisions of the instruments evidencing and securing payment of the
Senior Encumbrances that pertain to the use, ownership and operation of the
Properties and shall not act or fail to act in any manner that would constitute
a breach of such instruments. At such time as the Purchase Price for the
Properties or that portion thereof allocated to an individual Property (subject
to the requirements of section 1.2.2) is paid in full, Seller shall cause the
Senior Encumbrances relating to the Property or Properties, as applicable, to be
paid and released of record.
SECTION 2 TAXES AND LIENS
2.1 OBLIGATION TO PAY
All real property taxes and all governmental charges or other
assessments levied against the Properties for the current tax year shall be
prorated between Seller and Purchaser as of the Closing Date. Subject to the
terms of the Leases, Purchaser shall be responsible for paying when due all
taxes and assessments which are levied against the Properties after the Closing
Date. If any transfer, excise or similar documentary tax is imposed as a result
of this transaction, it shall be borne equally by the parties.
2.2 RIGHT TO CONTEST
If Purchaser objects in good faith to the validity or amount of any
tax, assessment, or lien, Purchaser, at Purchaser's sole expense, may contest
the validity or amount of the tax, assessment, or lien, provided that Seller's
security interest in the Properties is not jeopardized thereby. Purchaser shall
otherwise keep the Properties free from all liens which may be lawfully imposed
upon the Properties after the Closing Date, other than the lien of current taxes
not yet due and payable.
2.3 TAX STATEMENTS
Subject to the terms of the Leases, Purchaser shall provide Seller
with written evidence that all taxes and assessments have been paid when due,
within thirty (30) days after each required payment of taxes and assessments.
Purchaser shall have the right to pay any taxes or assessments in accordance
with any legally permitted installment method. Taxes are to be paid on an annual
basis.
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2.4 PAYMENTS TO THIRD PARTIES
In the event Purchaser fails to pay, when due, any amounts to be paid
by Purchaser to third parties under this contract, or any other instrument
affecting the Properties, Seller may pay any or all such amounts. If Seller
makes any such payments, the amounts so paid shall be immediately due and
payable from Purchaser. Until paid by Purchaser, such amounts shall be secured
by this Contract and shall bear interest at the rate set forth in Section 1.2.2.
SECTION 3 CLOSING
This transaction shall close on May 1, 1996 in escrow at the offices
of Fidelity Title Insurance Company in Portland, Oregon (the "Title Company").
As used in this Contract, the "Closing Date" means the date on which the Down
Payment is disbursed to Seller.
3.2 TITLE DEFECTS
In the event that Seller's interest in the Properties is subject to
any liens or encumbrances other than those which are set forth in Exhibit F
attached hereto (the "Permitted Exceptions") and Seller is unable to remove such
liens or encumbrances prior to the Closing Date, Purchaser may elect to (i)
cancel this Contract or (ii) waive the title defects.
3.3 RESPONSIBILITY OF PARTIES
At closing Purchaser shall deliver to Seller verifiable funds in the
amount of the Down Payment Amount, and Seller shall deliver to Purchaser a
commitment for the issuance of 3 standard purchaser's policies of title
insurance as described in Section 7 (the "Title Policies"). Seller and
Purchaser further agree to execute any and all additional documents and take
such further steps as may be necessary to effect the transaction described in
this Contract.
3.4 PRORATES AND CLOSING COSTS
Except as otherwise provided in this Contract or the Leases, all items
to be prorated shall be prorated as of the Closing Date. Seller shall pay one-
half of the title insurance premium and one-half of any escrow fees. Purchaser
shall pay the recording fees for recording this Contract or a memorandum
thereof, the recording fees for recording the Leases or a memorandum thereof,
one-half of the title insurance premium and one-half of any escrow fees.
LAND SALE CONTRACT 4
SECTION 4 POSSESSION: INDEMNIFICATION
4.1 POSSESSION
Subject to the terms of the Leases, Purchaser shall be entitled to
possession of the Properties from and after the Closing Date.
4.2 PURCHASER'S INDEMNIFICATION
Subject to the terms of the Leases, Purchaser agrees to defend,
indemnify and hold Seller harmless from any claim, loss or liability arising out
of Purchaser's possession or use of the Properties or conduct with respect to
the Properties after the Closing Date. In the event that any litigation or
proceeding is brought against Seller arising out of or in any way connected with
any of the above events or claims, Purchaser, upon written request from Seller,
agrees to vigorously resist and defend such actions or proceedings through legal
counsel reasonably satisfactory to Seller.
4.3 SELLER'S INDEMNIFICATION
Seller agrees to defend, indemnify and hold Purchaser harmless from
any claim, loss or liability arising out of Seller's possession or use of the
Properties or conduct with respect to the Properties prior to the Closing Date.
In the event that any litigation or proceeding is brought against Purchaser
arising out of or in any way connected with any of the above events or claims,
Seller, upon written notice from Purchaser, agrees to vigorously resist and
defend such actions or proceedings through legal counsel reasonably satisfactory
to Purchaser.
SECTION 5 MAINTENANCE
Subject to the terms of the Leases, commencing on the Closing Date and
continuing thereafter at all times during the term of this Contract, Purchaser
shall do the following:
5.1 MAINTENANCE OF PROPERTIES
Purchaser shall not commit or suffer any waste of the Properties and
shall maintain the Properties in good condition.
5.2 MAINTENANCE OF IMPROVEMENTS
Purchaser shall keep all buildings, other improvements, and
landscaping now existing or which shall be placed on the Properties in good
condition and repair and shall not permit any waste or removal of any
improvements, or make any alterations which reduce the value of the Properties
for security purposes without
LAND SALE CONTRACT 5
the prior written consent of Seller, which consent shall not be unreasonably
withheld or delayed.
5.3 COMPLIANCE WITH LAWS
Purchaser shall promptly comply with all laws, ordinances,
regulations, directives, rules, and other requirements of all governmental
authorities applicable to the use, possession, ownership or occupancy of the
Properties, and in this connection promptly make all required repairs,
alterations, and additions. Purchaser may contest in good faith any requirement
and withhold compliance during any proceeding, including appropriate appeals, so
long as Seller's interest in the Properties is not jeopardized thereby.
SECTION 6 INSURANCE
Subject to the terms of the Leases, the following insurance provisions
shall apply:
6.1 PROPERTY DAMAGE INSURANCE
Purchaser shall procure and maintain policies of fire insurance with
standard extended coverage endorsements covering losses due to fire, explosions,
winds, and storms, covering on a replacement cost basis all improvements on the
Properties in an amount sufficient to avoid application of any coinsurance
clause and with loss payable to Seller and Purchaser as their respective
interests may appear. Purchaser shall deliver to Seller certificates of
coverage from each insurer containing a stipulation that coverage will not be
canceled or diminished without a minimum of ten (10) days written notice to
Seller. In the event of loss, Purchaser shall promptly give written notice to
Seller. In the event that Purchaser fails to make proof of loss within fifteen
(15) days of a casualty, Seller may make such proof of loss.
6.2 APPLICATION OF PROCEEDS
All insurance proceeds shall be paid to and held by Seller. Any
insurance proceeds received by Seller, less any costs of collecting the same,
shall be made available to Purchaser to be used to restore or replace the
damaged Property. Any proceeds paid to Seller which have not been paid out by
Seller within one hundred twenty (120) days after their receipt, or which
Purchaser has not committed to the repair or restoration of the damaged Property
within such period, shall be applied to the indebtedness evidenced by this
Contract.
6.3 LIABILITY INSURANCE
During the term of this Contract, Purchaser shall maintain public
liability and property damage insurance with
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combined limits of not less than $2,000,000.00. Such insurance shall cover all
risks arising directly or indirectly out of Purchaser's activities on or any
condition of the Properties, and shall protect Seller and Purchaser against
claims of third persons. Purchaser shall deliver to Seller certificates of
coverage from each insurer containing a stipulation that coverage will not be
canceled or diminished without a minimum of ten (10) days written notice to
Seller.
SECTION 7 TITLE INSURANCE
Seller shall furnish, at an expense to be equally shared by the
parties, three (3) standard coverage purchaser's title insurance policies, in
the amount of the Purchase Price allocated to each Property, within ten (10)
days from the Closing Date, insuring Purchaser against loss or damage sustained
by Purchaser by reason of liens or encumbrances affecting the Properties,
excepting the Permitted Exceptions, the lien of this Contract and those liens or
encumbrances created or suffered against the Properties by Purchaser.
SECTION 8 EMINENT DOMAIN
If all or any portion of the Properties is condemned or otherwise
taken for public use, the proceeds of the condemnation award shall be paid to
Purchaser if required by the Lease or otherwise to Seller, and Purchaser or
Seller, as applicable, shall apply such proceeds to the following accounts in
order: accrued but unpaid interest on the Purchase Price; and the unpaid balance
of the Purchase Price. The remaining proceeds, if any, shall be paid to
Purchaser.
SECTION 9 DEED
Upon full payment of the Purchase Price for the Properties or that
portion thereof allocated to an individual Property (subject to the
requirements of section 1.2.2), Seller shall deliver to Purchaser a statutory
special warranty deed or deeds (individually a "Deed" and collectively, the
"Deeds") conveying the Property or Properties, as applicable, to Purchaser,
subject only to the Permitted Exceptions and those liens or encumbrances placed
or suffered against the Property or Properties, as applicable, by Purchaser.
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SECTION 10 DEFAULT
10.1 EVENTS OF DEFAULT
Time is of the essence of this Contract. A default shall occur if:
10.1.1 Purchaser fails to make any payment required by this Contract
within fifteen (15) days after the date on which such payment is due.
10.1.2 Purchaser fails to perform any other obligation contained in
this Contract within thirty (30) days after written notice of the default or, if
the default cannot be cured within thirty (30) days, failure within such time to
commence and pursue curative action with reasonable diligence.
10.1.3 Purchaser commences a voluntary case under the federal
bankruptcy laws or under other federal or state law relating to insolvency or
debtor's relief; a decree or order for relief against Purchaser in an
involuntary case under the federal bankruptcy laws or under any other applicable
federal or state law relating to insolvency or debtor's relief is entered; or an
assignment for the benefit of creditors by Purchaser occurs.
10.1.4 Purchaser transfers or attempts to transfer, assign or convey
Purchaser's interest in this Contract or in the Properties without Seller's
prior written approval.
10.2 REMEDIES ON DEFAULT
In the event of a default, Seller may take any one or more of the
following steps:
10.2.1 Declare the entire balance of the Purchase Price, and accrued
interest, and any other amounts due to Seller from Purchaser pursuant to this
Contract immediately due an payable;
10.2.2 Foreclose this Contract by suit in equity;
10.2.3 Specifically enforce the terms of this Contract by suit in
equity;
10.2.4 After complying with the notice requirements and right to cure
the default contained in ORS 93.905 to 93.945, Seller may declare this Contract
forfeited and retain the amount of the payments previously made under this
Contract. Upon recordation of the affidavit required by Oregon law, this
Contract and the Leases shall be extinguished and canceled, and Purchaser shall
have no further right, title, or interest in or to the real property or to any
return or compensation for payments previously made under this Contract, as
though this Contract, the Leases and such payments had never been made. In such
event, Purchaser agrees to surrender the
LAND SALE CONTRACT 8
Properties to Seller. If Purchaser fails to do so, Seller may elect to treat
Purchaser as a tenant holding over unlawfully after the expiration of a lease,
and Purchaser may be ousted and removed as such, without affecting Seller's
right to pursue other rights and remedies contained in this Contract or
permitted by law.
SECTION 11 CONDITION OF PROPERTY
Purchaser accepts the Properties, AS IS, without any representations
or warranties, express or implied, unless they are expressly set forth herein.
SECTION 12 MISCELLANEOUS PROVISIONS
12.1 WAIVER
Failure of Seller at any time to require performance of any provision
of this Contract shall not limit Seller's right to subsequently enforce the
provision, nor shall any waiver by Seller of any breach of any provision of this
Contract be a waiver of any succeeding breach of that provision or a waiver of
that provision itself or any other provision.
12.2 SUCCESSOR INTERESTS
This Contract shall be binding upon and inure to the benefit of the
parties, their successors, and assigns. Purchaser shall not assign, subcontract,
or otherwise transfer, voluntarily or involuntarily, any interest of Purchaser
in this Contract or the Properties without the prior written consent of Seller,
which consent shall not be unreasonably withheld or delayed.
12.3 PRIOR AGREEMENTS
This document is the entire, final, and complete agreement of the
parties pertaining to the sale and purchase of the Properties, and supersedes
and replaces all prior or existing written and oral agreements (with the
exception of the existing xxxxxxx money agreement and addendum thereto) between
the parties or their representatives relating to the Properties.
12.4 SEVERABILITY
If any term or provision of this Contract or the application thereof
to any person or circumstance shall to any extent by invalid or unenforceable,
the remainder of this Contract and the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term or provision of this
Contract shall be valid and enforceable to the fullest extent permitted by law.
LAND SALE CONTRACT 9
12.5 NOTICES
Any notice required, permitted, or otherwise given pursuant to this
contract shall be in writing and shall he effective when actually delivered in
person or three days after deposit in the U.S. Mail, registered or certified,
postage prepaid and addressed to the party at the address stated in this
Contract or such other address as either party may designate by written notice
to the other.
12.6 APPLICABLE LAW
This Contract has been entered into in Oregon and the Properties are
located in Oregon. The parties agree that the laws of the State of Oregon shall
be utilized in construing the Contract and enforcing the rights and remedies of
the parties.
12.7 COSTS AND ATTORNEYS' FEES
In the event Seller or Purchaser shall take any action, judicial or
otherwise, to enforce or interpret any of the terms of this Contract, the
prevailing party shall be entitled to recover from the other party all expenses
which it may reasonably incur in taking such action, including but not limited
to costs incurred in searching records, the costs of title reports and surveyors
reports, and attorneys' fees, whether incurred in a suit or action or appeal or
review from a judgment or decree therein or in connection with nonjudicial
action, in addition to all other sums provided by law.
12.8 SURVIVAL OF COVENANTS
Any covenants the full performance of which is not required prior to
the final payment of the Purchase Price shall survive the closing and be fully
enforceable thereafter in accordance with their terms.
12.9 AMENDMENT
This Contract may not be modified or amended except by the written
agreement of the parties. No modification or amendment or attempted waiver of
any provision of this Contract shall be binding unless in writing and signed by
the party to be bound.
12.10 STATUTORY DISCLAIMER
THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS
INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE
PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO
VERIFY
LAND SALE CONTRACT 10
APPROVED USES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST
PRACTICES AS DEFINED IN ORS 30.930.
IN WITNESS WHEREOF, the parties have caused this Contract to be
executed in duplicate as of the day and year first above written.
Seller: HEALTHFIRST MEDICAL GROUP, P.C.
By: /s/ Xxxxxxx Xxxxxxx, M.D.
---------------------------
Its: President
---------------------------
Purchaser: HEALTHFIRST PROPERTIES, L.L.C.
By: /s/ Xxxxxxx X. Xxx, M.D.
---------------------------
Its: Manager
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LAND SALE CONTRACT 11
EXHIBIT A
Broadway Property
Xxxx 0 xxxxxxx 00, Xxxxx 00, XXXXXXXXX XXXXXX'X ADDITION TO EAST PORTLAND, in
the City of Portland, County of Multnomah and State of Oregon.
EXCEPTING THEREFROM all that portion of Lots 6 and 7 annexed by said City of
Portland for widening of North Broadway.
EXHIBIT B
Westside Property
PARCEL I:
Lot 8 and that portion of Xxx 0, XXXXXXXX XXXX, Xxxxxxxxxx Xxxxxx, Xxxxxx,
described as follows:
BEGINNING at the Southeast corner of said Lot 9 and running thence North 64
DEGREES 36'00" West on the South line of said Lot 9, a distance of 266.00
feet to a point on the East line of Tract "E" said plat; thence on East and
North side of said Tract "E", the following courses: North 20 DEGREES 35'43"
East, a distance of 30.00 feet; thence North 69 DEGREES 24'17" West, distance
of 30.00 feet to a point on the West line of said Lot 9; thence North 20
DEGREES 35'43" East on the West line of said Lot 9, a distance of 127.36 feet
to a point on the proposed South right-of-way line of U.S. Highway 26; thence
South 60 DEGREES 21'00" East on said South right-of-way line, a distance of
209.19 feet to an angle point; thence South 51 DEGREES 49'09" East, a
distance of 44.10 feet to the intersection point with the East line of said
Lot 9; thence South 01 DEGREES 23'46" West on said East lot line, a distance
of 141.25 feet to the point of beginning.
PARCEL II:
Xxx 00, XXXXXXXX XXXX, Xxxxxxxxxx Xxxxxx, Xxxxxx.
EXCEPTING THEREFROM that portion conveyed to the State of Oregon by and through
its Department of Transportation, Highway Division, recorded March 28, 1990,
Recorder's Fee No. 90 14985.
EXHIBIT C
Tualatin Property
PARCEL I:
A portion of that certain tract deeded to Xxxx X. Xxxxxxxxx and Xxxxx
Xxxxxxxxx as described in deed of record in Book 184, at Page 511, Washington
County, Oregon Deed Records, said portion being more particularly described as
follows:
BEGINNING at a point on the East line of Section 24, Township 2 South, Range
1 West of the Willamette Meridian, in Washington County, Oregon, the same
being the East line of Xxx 0, XXXXXXXX XXXXXXX, 000.0 feet North of the
Southeast corner of said Lot 1, and 440.8 feet North of the Southeast
corner of Section 24; thence West 50 feet to an iron pipe at the Southwest
corner of a tract of land conveyed by deed to Washington County, Oregon,
as recorded on Page 331 of Volume 152, Deed Records of Washington
County, Oregon; thence North parallel with and 50 feet distant West from the
East line of said Lot 1, a distance of 71.8 feet to an iron pipe; thence
South 89 DEGREES 8' West parallel with the South line of said Section 24,
412 feet to a point marked by an iron pipe; thence South parallel with the
East line of said Section 24, 175 feet to a point; thence North 8908' East
462 feet to the East line of said Section 24; thence North along the East
line of said Section 24, to the point of beginning.
EXCEPTING THEREFROM that portion conveyed to the City of Tualatin by document
recorded June 20, 1973, in Book 931, Page 215.
PARCEL II:
BEGINNING at an iron rod on the West line of that certain tract of land
conveyed to Washington County by deed recorded in Book 152, Page 331,
Washington County Deed Records, which iron rod is North 440.8 feet, West 50.0
feet, and North 171.8 feet from the Southeast corner of Section 24, Township
2 South, Range 1 West of the Willamette Meridian, and is also North 171.8
feet from the Southwest corner of the said Washington County tract, and
running thence South 89 DEGREES 08' West parallel to the North line of that
certain tract of land conveyed to Xxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx,
husband and wife, by deed recorded in Book 311, Page 232, said Deed Records,
a distance of 412.0 feet to an iron rod; thence South on the West line of the
said Xxxxxx tract, 100.0 feet, more or less, to the Northwest corner of that
certain tract of land conveyed to Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx, by
deed recorded in Book 491, Page 266, said Deed Records; thence North 89
DEGREES 08' East along the North line of said Xxxxxx tract, 412.0 feet to an
iron pipe at the most Northerly Northeast corner of the said Xxxxxx tract,
and from which pipe the Southwest corner of the aforesaid Washington County
tract bears South 71.8 feet; thence North along the West line of the said
Washington County tract, 100.0 feet to the point of beginning.
EXCEPTING THEREFROM that portion conveyed to the City of Tualatin by document
recorded June 20, 1973, in Book 931, Page 215.
PARCEL III:
BEGINNING at an iron pipe at the Southeast corner of Section 24, Township 2
South, Range 1 West of the Willamette Meridian, in the County of Washington and
State of Oregon, said beginning point being the Southeast corner of Lot 1 of
TUALATIN GARDENS, as shown on the duly recorded map and plat thereof, in the
County of Washington and State of Oregon, said beginning point being the
Southeast corner of that certain 14-acre tract of land conveyed by deed to
F. H. and XxXxxxx Xxxxxx, as recorded at Page 332 of Volume 159 of Washington
County Record of Deeds, and running thence from said point of beginning North
along the East line of said Section 24 and the East line of the said Hocken
tract, 440.8 feet to the Southeast corner of that certain 0.579-acre tract of
land conveyed by deed to Washington County, Oregon, as recorded at Page 331
of Volume 152, Deed Records for said county; thence West 50.0 feet to an
iron pipe at the Southwest corner of the said Washington County tract; thence
North parallel with and 50 feet distant West from East line of said Lot 1, a
distance of 71.8 feet to an iron pipe; thence South 89 DEGREES 08' West parallel
with the South line of the said Hocken tract, 412.0 feet to an iron pipe on the
West line thereof; thence South along the West line of the said Hocken tract,
513.4 feet to the Southwest corner thereof; thence North 89o08' East along the
South line of the said Hocken tract, a distance of 462.0 feet to the place of
beginning.
EXCEPTING THEREFROM that portion thereof described in contract to Xxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxx, recorded in Volume 450, Page 547, Deed Records of
said county.
AND FURTHER EXCEPTING THEREFROM those portions conveyed to the City of
Tualatin by documents recorded June 22, 1995 as Fee Nos. 95042799 and 95042800.
EXHIBIT D
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MEDICAL OFFICE LEASE
----------------------
BETWEEN: HealthFirst Properties, L.L.C., whose address is 000 X. Xxxxxxxx,
Xxxxxxxx, XX 00000
("Landlord");
AND: HealthFirst Medical Group, P.C. whose address is 000 X. Xxxxxxxx,
Xxxxxxxx, XX 00000
("Tenant").
DATED AS OF: May 1, 1996
Landlord hereby leases to Tenant the real property legally described in the
attached Exhibit A, together with all improvements thereon, on the terms and
conditions stated below:
SECTION 1: OCCUPANCY
1.1 TERM. The term of this lease shall commence on the date of this
Agreement set forth above (the "Commencement Date") and shall expire on April
30, 2016, unless sooner terminated pursuant to the provisions hereof.
1.2 POSSESSION. Tenant's right to possession and obligations under the
lease shall commence on the Commencement Date.
SECTION 2: RENT
2.1 BASIC RENT. Beginning on the Commencement Date, Tenant
shall pay basic rent to Landlord of $ per month. Rent
shall be adjusted annually based on the annual change in the Consumer Price
Index for All Urban Consumers, published by the Bureau of Labor Statistics of
the United States Department of Labor, for Portland-Vancouver (1977=100) or any
other successor or substitute index selected by Landlord, with a cumulative
maximum yearly increase of three percent (3%), such that the rent for any lease
year shall not exceed the amount set forth on the attached Exhibit B. At no
time shall basic rent be less than the basic rent for the previous lease year.
Basic rent shall be payable on the first day of each month in advance at
such place as may be designated by Landlord.
2.2 ADDITIONAL RENT. All taxes, insurance costs, utility charges,
repairs and maintenance and any other sum which Tenant is required to pay to
Landlord or third parties shall be additional rent.
LAND SALE CONTRACT 16
2.3 LATE CHARGE. If any portion of the basic rent remains unpaid for ten
(10) or more calendar days after the date on which such amount is due, Tenant
shall pay to Landlord a late charge in an amount equal to five percent (5%) of
such delinquent payment. Tenant agrees that such amount is a reasonable
estimate of Landlord's collection and administrative expenses.
SECTION 3. USE OF THE PREMISES
3.1 PERMITTED USE. The premises shall be used for medical office purposes
and uses related thereto, but for no other purpose without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed.
3.2 RESTRICTIONS ON USE. In connection with its use of the premises,
Tenant shall, subject to Section 4.1:
(a) Conform to all applicable laws and regulations of
any public authority affecting the premises and
correct at Tenant's own expense any failure of
compliance created through Tenant's fault or by
reason of Tenant's use.
(b) Refrain from any use which would be reasonably
offensive to other tenants or owners or users of
neighboring premises or which would tend to create
a nuisance or damage the reputation of the
premises.
SECTION 4: REPAIRS AND MAINTENANCE
4.1 LANDLORD'S OBLIGATIONS. The premises are being leased in an "as is"
condition and Landlord shall not be liable for repairs or maintenance of the
premises or other charges, except for replacement and maintenance of the
roof, exterior walls (excluding painting), bearing walls, structural members and
foundation.
4.2 TENANT'S OBLIGATIONS. All repairs and maintenance to the premises not
otherwise the responsibility of Landlord pursuant to section 4.1 shall be the
responsibility of the Tenant including, but not limited to, the following:
(a) Repair of sidewalks, driveways, curbs and parking
areas.
(b) Repair and maintenance of water, sewage, gas and
electrical services.
(c) Repair of the heating and air conditioning system,
including ordinary maintenance.
LAND SALE CONTRACT 17
(d) Repair of interior walls, ceilings, doors and
windows and related hardware, light fixtures,
switches, and wiring and plumbing.
(e) Maintain the exterior and interior of the premises
in good condition.
(f) Any repairs (including those for which Landlord
would otherwise be responsible pursuant to section
4.1) necessitated by the negligence of Tenant, its
agents, employees, and invitees.
(g) Any repairs or alterations required under Tenant's
obligation to comply with laws and regulations as
set forth in 4.2(a) above.
4.3 REIMBURSEMENT FOR REPAIRS ASSUMED. If Tenant fails or refuses to make
repairs which are required by this Section 4, the Landlord may make the repairs
and charge the actual costs of repairs to Tenant. Such expenditures by
Landlord shall be reimbursed by Tenant on demand together with interest at the
rate of twelve percent (12%) per annum from the date of expenditure by Landlord.
Except in an emergency creating an immediate risk of personal injury or property
damage, Landlord shall not perform repairs which are the obligation of Tenant
and charge the Tenant for the resulting expense unless at least fifteen (15)
days before work is commenced Tenant is given notice in writing outlining with
reasonable particularity the repairs required, and Tenant fails within that time
to initiate such repairs in good faith.
4.4 INSPECTION OF PREMISES. Landlord shall have the right to inspect the
premises at any reasonable time after reasonable notice to Tenant, to
determine the necessity of repairs and/or maintenance.
SECTION 5: ALTERATIONS
5.1 ALTERATIONS PROHIBITED. Tenant shall make no improvements or alterations
on the premises of any kind without first obtaining Landlord's written consent,
which consent shall not be unreasonably withheld or delayed.
5.2 OWNERSHIP OF ALTERATIONS. All improvements and alterations
performed on the premises by either Landlord or Tenant shall be the property
of Landlord when installed unless the applicable Landlord's consent
provides otherwise.
SECTION 6: FIRE INSURANCE
6.1 INSURANCE REQUIRED. Tenant shall keep the premises,
including all buildings, other improvements and landscape, insured
at Tenant's expense against fire and other risks covered by a
LAND SALE CONTRACT 18
standard fire insurance policy with an endorsement for extended coverage. The
policy shall be written for the full insurable value, with loss payable to
Landlord, and the policy or a certificate of insurance shall be delivered
to Landlord and shall contain a stipulation providing that coverage will not be
canceled or diminished without a minimum of thirty (30) days written notice to
Landlord. Tenant shall bear the expense of any insurance insuring the
property of Tenant on the premises.
6.2 WAIVER OF SUBROGATION. So long as Tenant maintains the insurance
required by section 6.1, Tenant shall not be liable to Landlord and Landlord
shall in no event be liable to Tenant for any loss or damage caused by fire or
any of the risks enumerated in a standard fire insurance policy with an
extended coverage endorsement, and in the event of insured loss neither party's
insurance company shall have a subrogated claim against the other.
SECTION 7: TAXES AND UTILITIES
7.1 REAL PROPERTY TAXES. Tenant shall pay all real property
taxes levied against the premises within ten (10) days after
receipt of notice from Landlord of the total amount of the tax due.
7.2 PERSONAL PROPERTY TAXES. Tenant shall pay as due all taxes on its
personal property located on the premises.
7.3 SPECIAL ASSESSMENTS. If an assessment for a public improvement is
made against the premises, the assessment shall be paid by Tenant, who may elect
to cause such assessment to be paid in any legally-permitted installments.
Tenant shall only be obligated to pay such installments arising during the
term of this lease.
7.4 CONTEST OF TAXES. Tenant shall be permitted to contest the amount of
any tax so long as such contest is conducted in a manner which does not cause
any risk that Landlord's interest in the leased premises will be foreclosed for
nonpayment. Landlord, at no cost to Landlord, shall cooperate in any reasonable
manner with such contest by Tenant.
7.5 PRORATION OF TAXES. Tenant's share of real property taxes for the
year in which this lease commences or terminates shall be prorated based upon
the portion of the tax year that this lease is in effect.
7.6 UTILITY CHARGES. Tenant shall pay when due all charges for
electricity, gas, water, sanitary and storm sewage, garbage removal, telephone
service and any other utilities of any kind furnished to the premises.
SECTION 8: DAMAGE AND DESTRUCTION
LAND SALE CONTRACT 19
8.1 PARTIAL DAMAGE. If the premises are partly damaged and paragraph 8.2
below does not apply, the premises shall be repaired by Landlord to the
condition existing prior to the damage up to, but not to exceed, the amount
of available insurance proceeds (less Landlord's reasonable expenses to
obtain such proceeds). Repairs shall be accomplished with all reasonable
dispatch subject to interruptions and delays from matters beyond the control
of Landlord. All repairs shall be done by Landlord in such a way as to
interfere as little as reasonably possible with the use of the premises by
Tenant.
8.2 DESTRUCTION. If the premises are destroyed or damaged such that the
cost of repair exceeds fifty (50) percent of the value of the structure
before the damage, either party may elect to terminate the lease as of the
date of the damage or destruction by notice given to the other in writing not
more than forty-five (45) days following the date of damage. In such event
all rights and obligations of the parties shall cease as of the date of
termination, and Tenant shall be entitled to the reimbursement of any prepaid
amounts paid by Tenant and attributable to the anticipated term. If neither
party elects to terminate, Landlord shall proceed to restore the premises to
substantially the same form as prior to the damage or destruction up to, but
not to exceed, the amount of available insurance proceeds (less Landlord's
reasonable expenses to obtain such proceeds). Work shall be commenced as
soon as reasonably possible and thereafter shall proceed without interruption
except for work stoppages due to causes beyond the control of Landlord.
8.3 RENT ABATEMENT. Rent shall be abated during the repair of any damage
to the extent the premises are untenantable. Tenant shall have no claim
against Landlord for any inconvenience resulting from Landlord's activities
performed in conformance with the requirement of this section.
SECTION 9: EMINENT DOMAIN
9.1 PARTIAL TAKING. If a portion of the premises is condemned
and paragraph 9.2 does not apply the lease shall continue on the following
terms:
(a) Landlord shall be entitled to all of the proceeds
of condemnation, and Tenant shall have no claim
against Landlord as a result of the condemnation.
(b) Landlord shall proceed as soon as reasonably possible to
make such repairs and alterations to the premises as are necessary
to restore the remaining premises to a condition as comparable as
reasonably practicable to that existing at the time of the
condemnation up to, but not to exceed, the amount of the condemnation
award (less Landlord's
LAND SALE CONTRACT 20
reasonable expenses to obtain such award). Work shall proceed without
interruption except for work stoppages due to causes beyond the
control of Landlord.
(c) After the date on which title vests in the
condemning authority or an earlier date on which
alterations or repairs are commenced by Landlord to
restore the balance of the premises in anticipation
of taking, the rent shall be reduced in proportion
to the reduction in value of the premises as an
economic unit on account of the partial taking. If
the parties are unable to agree upon the amount of
the reduction of rent, the amount shall be
determined by arbitration in the manner as is
provided in Section 17.
9.2 TOTAL TAKING. If a condemning authority takes all of the premises or
a portion sufficient to render the remaining premises reasonably unsuitable for
the use which Tenant was then making of the premises, as reasonably determined
by Landlord, the lease shall terminate as of the date the title vests in
the condemning authority. Such termination shall have the same effect as a
termination under paragraph 9.1(a) above.
9.3 SALE IN LIEU OF CONDEMNATION. Sale of all or part of the premises to
a purchaser with the power of eminent domain in the face of a threat or
probability of the exercise of the power shall be treated for the purposes of
this Section 9 as a taking by condemnation.
9.4 NOTICE OF ACTION. If either party receives notice of a condemnation
proceeding or a threat or probability thereof or of any action in lieu thereof,
such party shall promptly provide a copy of such notice to the other party.
SECTION 10: LIABILITY AND INDEMNITY
10.1 LIENS.
(a) Except with respect to activities for which Landlord may be
responsible, Tenant shall pay as due all claims for work done on and
for services rendered or material furnished to the premises and shall
keep the premises free from any liens. If Tenant fails to pay any
such claims or to discharge any lien, Landlord may do so and collect
the cost as additional rent. Any amount so added shall bear interest
at the rate of twelve percent (12%) per annum from the date expended
by Landlord and shall be payable on demand. Such action by Landlord
shall not constitute a waver of any right or
LAND SALE CONTRACT 21
remedy which Landlord may have on account of Tenant's default.
(b) Tenant may withhold payment of any claim in
connection with a good-faith dispute over the
obligation to pay, so long as Landlord's property
interests are not jeopardized. If a lien is filed
as a result of nonpayment, Tenant shall, within ten
(10) days after knowledge of the filing, secure the
discharge of the lien or deposit with Landlord cash
or sufficient corporate surety bond or other surety
satisfactory to Landlord in an amount sufficient to
discharge the lien plus any costs, attorney fees,
and other charges that could accrue as a result of
a foreclosure or sale under the lien.
10.2 INDEMNIFICATION. Tenant shall indemnify and defend Landlord from
any claim, loss, or liability arising out of or related to any activity of
Tenant on the premises or any condition of the premises in the possession or
under the control of Tenant. Landlord shall have no liability to Tenant for any
loss or damage caused by third parties or by any condition of the premises.
10.3 LIABILITY INSURANCE. During the term of this lease Tenant
shall carry the following insurance at Tenant's cost with companies reasonably
acceptable to Landlord: public liability and property damage insurance in a
responsible company with limits of not less than $2,000,000 combined limit.
Such insurance shall cover all risks arising directly or indirectly out of
Tenant's activities on or any condition of the premises whether or not related
to an occurrence caused or contributed to by Landlord's negligence, shall
protect Tenant against the claims of Landlord on account of the obligations
assumed by Tenant under paragraph 10.2, and shall protect Landlord and Tenant
against claims of third persons. Certificates evidencing such insurance
and bearing endorsements requiring thirty (30) days' written notice to Landlord
prior to any change or cancellation shall be furnished to Landlord prior to
Tenant's occupancy of the premises. Landlord shall be named as an additional
insured on such policy or policies.
10.4 HAZARDOUS SUBSTANCES. Tenant shall not generate, release,
store, or deposit on the premises any environmentally hazardous or toxic
substances, materials, wastes, pollutants, oils, or contaminants, as defined by
any federal, state, or local law or regulation (collectively "Hazardous
Substances"), except those used in the normal course of Tenant's business
in commercially-reasonable amounts and in compliance with all applicable laws.
Tenant shall indemnify and hold harmless Landlord from and against any and all
claims, losses, damages, response costs and expenses of any nature whatsoever
arising out of or in any way related to the generation, release, storage, or
deposit of Hazardous Substances on the premises by Tenant or any other person or
entity other than
LAND SALE CONTRACT 22
Landlord. Promptly upon written notice from Landlord or any governmental
entity, Tenant shall remove from the premises (including without
limitation the soil or water table thereof) all hazardous substances, and shall
restore the premises to a clean, safe, good, and serviceable condition. Any
such clean-up shall be in conformance with all applicable governmental
rules and regulations.
Notwithstanding the foregoing, Tenant shall have no liability for and
Landlord shall indemnify and hold harmless Tenant from and against any and all
claims, losses, damages, response costs and expenses of any nature whatsoever
arising out of or in any way related to the generation, release, storage,
or deposit of Hazardous Substances on the premises prior to the date of this
lease, unless caused by Tenant or its agents, employees or invitees.
SECTION 11: QUIET ENJOYMENT; MORTGAGE PRIORITY
11.1 LANDLORD'S WARRANTY. Landlord warrants that it is the contract vendee
of the premises and has the right to lease the same. Provided that Tenant is
not in default hereunder, Landlord will defend Tenant's right to quiet enjoyment
of the premises from the lawful claims of all persons during the lease term and
any renewals thereof.
11.2 MORTGAGE PRIORITY. This lease is and shall be prior to any mortgage
or deed of trust ("Encumbrance") recorded after the date of this lease and
affecting the premises. However, if any lender holding such an Encumbrance
requires that this lease be subordinate to the encumbrance, then Tenant agrees
that the lease shall be subordinate to the encumbrance if the holder thereof
agrees in writing with Tenant that so long as Tenant performs its obligations
under this lease, no foreclosure, deed given in lieu of foreclosure, or sale
pursuant to the terms of the Encumbrance, or other steps or procedures taken
under the Encumbrance shall affect Tenant's rights under this lease. If the
foregoing condition is met Tenant shall execute the written agreement and
any other documents reasonably required by the holder of the encumbrance to
accomplish the purposes of this paragraph. If the premises are sold as a result
of foreclosure of any encumbrance thereon, or otherwise transferred by Landlord
or any successor, Tenant shall attorn to the purchaser or transferee.
11.3 ESTOPPEL CERTIFICATE. Either party will within twenty (20) days after
notice from the other execute and deliver to the other party a certificate
stating whether or not this lease has been modified and is in full force and
effect and specifying any modifications or alleged breaches by the other
party. The certificate shall also state the amount of monthly base rent and
the dates to which rent has been paid in advance.
LAND SALE CONTRACT 23
SECTION 12: ASSIGNMENT AND SUBLEASE
No part of the premises may be assigned, mortgaged, subleased, or otherwise
transferred, nor may a right of use of any portion of the premises be conferred
on any third person by any other means, whether voluntarily or by operation of
law, without the prior written consent of Landlord, which shall not be
unreasonably withheld or delayed. No consent in one instance shall prevent the
provision from applying to a subsequent issuance. Landlord's consent to any
assignment of subletting by Tenant shall not relieve Tenant of any obligations
to be performed by Tenant hereunder, whether occurring before or after such
assignment of subletting, unless Landlord grants to Tenant a release in writing.
SECTION 13: DEFAULT
13.1 DEFAULT IN RENT. Failure of Tenant to pay any rent or other charge
within ten (10) days after it is due.
13.2 DEFAULT IN OTHER COVENANTS. Failure of Tenant to comply with any term
or condition or fulfill any obligation of the lease (other than the payment of
rent or other charges) within twenty (20) days after written notice by Landlord
specifying the nature of the default with reasonable particularity. If the
default is of such a nature that it cannot be completely remedied within the
twenty (20) day period, this provision shall be complied with if Tenant begins
correction of the default within the 20-day period and thereafter proceeds with
reasonable diligence and in good faith to effect the remedy as soon as
practicable.
13.3 INSOLVENCY. Insolvency of Tenant; an assignment by Tenant for
the benefit of creditors; the filing by Tenant of a voluntary petition in
bankruptcy; an adjudication that Tenant is bankrupt or the appointment of a
receiver of the properties of Tenant; the filing of any involuntary petition of
bankruptcy and failure of Tenant to secure a dismissal of the petition within
forty-five (45) days after filing; attachment of or the levying of execution on
the leasehold interest and failure of Tenant to secure discharge of the
attachment or release of the levy of execution within ten (10) days.
13.4 ABANDONMENT: Failure of Tenant for five (5) days or more to occupy
the premises for the purposes permitted under this lease unless such failure is
excused under other provisions of this lease.
SECTION 14: REMEDIES ON DEFAULT
14.1 TERMINATION. In the event of a default the lease may be terminated at
the option of Landlord by notice in writing to Tenant. If the lease is not
terminated by election of Landlord or otherwise, Landlord shall be entitled to
recover damages from
LAND SALE CONTRACT 24
Tenant for the default. If the lease is terminated, Tenant's liability to
Landlord for damages shall survive such termination, and Landlord may reenter,
take possession of the premises, and remove any persons or property under
any rights or remedies provided by law.
14.2 RELETTING. Following reentry or abandonment, Landlord may relet the
premises and in that connection may make any suitable alterations or refurbish
the premises, or both, or change the character or use of the premises, but
Landlord shall not be required to relet for any use or purpose other than
that specified in the lease or which Landlord may reasonably consider injurious
to the premises, or to any tenant which Landlord may reasonably consider
objectionable. Landlord may relet all or part of the premises, alone or in
conjunction with other properties, for a term longer or shorter than the term of
this lease, upon any reasonable terms and conditions, including the granting of
some rent-free occupancy or other rent concession.
14.3 DAMAGES. In the event of termination on default Landlord shall be
entitled to recover immediately, without waiting until the due date of any
future rent or until the date fixed for expiration of the lease term, the
following amounts as damages:
(a) The loss of reasonable rental value from the date
of default until a new tenant has been, or with the
exercise of reasonable efforts could have been,
secured.
(b) The reasonable costs of reentry and reletting
including without limitation the cost of any clean
up, refurbishing, removal of Tenant's property and
fixtures, or any other expense occasioned by
Tenant's failure to quit the premises upon
termination and to leave them in the required
condition, any remodeling costs, attorney fees,
court costs, broker commissions, and advertising
costs.
(c) Any excess of the value of the rent and all of
Tenant's other obligations under this lease over
the reasonable expected return from the premises
for the period commencing on the earlier of the
date of trial or the date the premises are relet
and continuing through the end of the term. The
present value of future amounts will be computed
using a discount rate equal to the prime loan rate
of United States National Bank of Oregon.
14.4 RIGHT TO XXX MORE THAN ONCE. Landlord may xxx periodically
to recover damages during the period corresponding to
LAND SALE CONTRACT 25
the remainder of the lease term, and no action for damages shall bar a later
action for damages subsequently accruing.
14.5 REMEDIES CUMULATIVE. The foregoing remedies shall be in addition to
and shall not exclude any other remedy available to Landlord under applicable
law.
SECTION 15: SURRENDER AT EXPIRATION
15.1 CONDITION OF PREMISES. Upon expiration of the lease term or earlier
termination on account of default, Tenant shall deliver all keys and surrender
possession of the premises in good condition and broom clean. Alterations
constructed by Tenant with permission from Landlord shall not be removed or
restored to the original condition unless the terms of permission for the
alteration so require.
15.2 FIXTURES
(a) All fixtures placed upon the premises during the
term, other than Tenant's trade fixtures, shall, at
Landlord's option, become the property of Landlord.
If Landlord so elects, Tenant shall remove any or
all fixtures which would otherwise remain the
property of Landlord, and shall repair any physical
damage resulting from the removal. If Tenant fails
to remove such fixtures, Landlord may do so and
charge the cost to Tenant with interest at the
legal rate from the date of expenditure.
(b) Prior to expiration or termination of the lease
term Tenant shall remove all furnishings,
furniture, and trade fixtures which remain its
property. If Tenant fails to do so, this shall be
an abandonment of the property, and Landlord may
retain the property and all rights of Tenant with
respect to it shall cease or, by notice in writing
given to Tenant within twenty (20) days after
removal was required, Landlord may elect to hold
Tenant to its obligation of removal. If Landlord
elects to require Tenant to remove, Landlord may
effect a removal and place the property in public
storage for Tenant's account. Tenant shall be
liable to Landlord for the cost of removal,
transportation to storage, and storage, with
interest at the legal rate on all such expenses
from the date of expenditure.
15.3 HOLDOVER:
(a) If Tenant does not vacate the premises at the time required,
Landlord shall have the option to treat
LAND SALE CONTRACT 26
Tenant as a tenant from month to month, subject to all of the
provisions of this lease except the provisions for term and renewal,
and the provision for rent, which shall be equal to one hundred fifty
percent (150%) of the last rental payable under the lease. Failure
of Tenant to remove fixtures, furniture, furnishings, or trade
fixtures which Tenant is required to remove under this lease shall
constitute a failure to vacate to which this paragraph shall
apply if the property not removed will substantially interfere with
occupancy of the premises by another tenant or with occupancy by
Landlord for any purpose including preparation for a new tenant.
(b) If a month-to-month tenancy results from a holdover
by Tenant under this paragraph 15.3, the tenancy
shall be terminable at the end of any monthly
rental period on written notice from Landlord given
not less than ten (10) days prior to the
termination date which shall be specified in the
notice. Tenant waives any notice which would
otherwise be provided by law with respect to a
month-to-month tenancy.
SECTION 16: MISCELLANEOUS
16.1 TIME OF ESSENCE. Time is of the essence of the performance of
Tenant's obligations hereunder.
16.2 NONWAIVER. Waiver by either party of strict performance of any
provision of this lease shall not be a waiver of or prejudice the party's
right to require strict performance of the same provision in the future or of
any other provision.
16.3 ATTORNEYS' FEES. If suit or action is instituted in connection with
any controversy arising out of this lease, the prevailing party shall be
entitled to recover in addition to costs such sum as the court may adjudge
reasonable as attorney fees at trial or on any appeal or review.
16.4 NOTICES. Any notice required or permitted under this lease shall be
given when actually delivered or 48 hours after deposited in United States mail
as certified mail, return receipt requested, addressed to the address first
given in this lease or to such other address as may be specified from time to
time by either of the parties in writing.
16.5 SUCCESSION. Subject to the above-stated limitations on transfer of
Tenant's interest, this lease shall be binding upon and inure to the benefit of
the parties, their respective successors and assigns.
LAND SALE CONTRACT 27
16.6 LANDLORD'S RIGHT TO CURE DEFAULTS. If Tenant fails to perform any
obligation under this lease, Landlord shall have the option to do so after ten
(10) days' written notice to Tenant. All of Landlord's expenditures to
correct the default shall be reimbursed by Tenant on demand with interest at
the rate of twelve percent (12%) per annum from the date of expenditure by
Landlord.
16.7 RECORDATION. This lease shall not be recorded without the consent in
writing of Landlord, which shall not be unreasonably withheld or delayed.
16.8 ENTRY FOR INSPECTION. Landlord shall have the right to enter upon the
premises at any reasonable time and after reasonable notice to determine
Tenant's compliance with this lease, and in addition shall have the right, at
any time during the last six (6) months of the term of this lease or any renewal
thereof, to place and maintain upon the premises notices for leasing of the
premises.
16.9 PRORATION OF RENT. In the event of commencement or termination of
this lease at a time other than the beginning or end of one of the specified
rental periods, then the rent shall be prorated as of the date of commencement
or termination and in the event of termination for reasons other than default,
all prepaid rent shall be refunded to Tenant or paid on its account.
SECTION 17. ARBITRATION
Landlord may at any time, and Tenant may at any time when not in default in
the payment of any amount due hereunder, request arbitration of any matter
in dispute. The party requesting arbitration shall do so by giving notice
to that effect to the other party, specifying in such notice the nature of the
dispute, and such dispute shall then be determined in the City of Portland, by
a single arbitrator, in accordance with the rules then pertaining to the
Arbitration Service of Portland, Inc. or the American Arbitration Association,
whichever organization is selected by the party initiating arbitration, except
to the extent provider otherwise under Oregon laws on arbitration and is
otherwise provided herein. In the event the parties cannot agree upon an
arbitrator, either party may petition the Presiding Judge of the Circuit Court
of Multnomah County, Oregon, to appoint the arbitrator. Any such appointed
arbitrator shall be a qualified expert with respect to the subject in dispute as
determined by the Presiding Judge. Each party shall submit its position to the
arbitrator and the arbitrator shall chose the position of one of the parties.
The award in such arbitration may be enforced on the application of either party
by the order of judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the losing party. The prevailing
party shall be entitled to recover from the losing party the expense of
its attorneys and experts as well as a reasonable amount for its own personnel
time incurred in connection with any arbitration.
LAND SALE CONTRACT 28
IN WITNESS WHEREOF, the parties have executed this lease, in duplicate, on
the day and year first set forth above.
Landlord: HEALTHFIRST PROPERTIES, L.L.C.
By: Xxxxxxx X. Xxx, M.D.
----------------------------------------
Its: Manager
----------------------------------------
Tenant: HEALTHFIRST MEDICAL GROUP, P.C.
By: Xxxxxxx X. Xxxxxx, M.D.
----------------------------------------
Its: President
----------------------------------------
LAND SALE CONTRACT 29
EXHIBIT A
[Insert Legal Description]
LAND SALE CONTRACT 30
EXHIBIT B
[Insert Maximum Yearly Rent]
LAND SALE CONTRACT 31
EXHIBIT E
Senior Encumbrances
BROADWAY PROPERTY
-----------------
LINE OF CREDIT DEED OF TRUST
Grantor : METROPOLITAN CLINIC, P.C.
Trustee : U.S. BANK OF WASHINGTON, N.A.
Beneficiary : UNITED STATES NATIONAL BANK OF OREGON
Amount : $1,900,000.00
Dated : December 22, 1995
Recorded : December 29, 1995
Fee No. : 95 162031
WESTSIDE PROPERTY
-----------------
LINE OF CREDIT MORTGAGE/DEED OF TRUST AND SECURITY AGREEMENT
Grantor : METROPOLITAN CLINIC, P.C.
Trustee : CHICAGO TITLE INSURANCE COMPANY OF OREGON
Beneficiary : XXXXXXX XXXXXXXX COMPANY (Construction Loan)
UNITED OF OMAHA LIFE INSURANCE COMPANY (Permanent Loan)
Amount : $1,800,000.00
Dated : December 12, 1989
Recorded : December 13, 1989
Fee No. : 89-60698
ASSIGNMENT OF LEASES AND RENTS
Assignor : METROPOLITAN CLINIC, P.C.
Assignee : XXXXXXX XXXXXXXX COMPANY (Construction Loan)
UNITED OF OMAHA LIFE INSURANCE COMPANY (Permanent Loan)
Dated : December 12, 1989
Recorded : December 13, 1989
Fee No. : 89-60699
FINANCING STATEMENT
Debtor : METROPOLITAN CLINIC, P.C.
Secured Party : XXXXXXX XXXXXXXX COMPANY
Recorded : December 13, 1989
Fee No. : 89-60700
Assigned to : UNITED OF OMAHA LIFE INSURANCE COMPANY
Recorded : July 19, 1990
Fee No. : 90-38273
Continued : December 9, 1994
Fee No. : 94110263
TUALATIN PROPERTY
-----------------
LINE OF CREDIT DEED OF TRUST
Grantor : METROPOLITAN CLINIC, P.C.
Trustee : TICOR TITLE INSURANCE CO.
Beneficiary : UNITED STATES NATIONAL BANK OF OREGON
Amount : $3,750,000.00
Dated : June 15, 1995
Recorded : July 13, 1995
Fee No. : 95 048472
LAND SALE CONTRACT 32
ASSIGNMENT OF RENTS
Assignor : METROPOLITAN CLINIC, P.C.
Assignee : UNITED STATES NATIONAL BANK OF OREGON
Dated : June 15, 1995
Recorded : July 13, 1995
Fee No. : 95 048473
LAND SALE CONTRACT 33
EXHIBIT F
Permitted Title Exceptions
BROADWAY PROPERTY
GENERAL EXCEPTIONS:
1. Taxes or assessments which are not shown as existing liens by the records
of any taxing authority that levies taxes or assessments on real property or by
the public records, proceedings by a public agency which may result in taxes or
assessments, or notices of such proceedings whether or not shown by the records
of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the public
records but which could be ascertained by an inspection of said land or by
making inquiry of persons in possession thereof.
3. Easements, or claims of easement or encumbrances, not shown by the public
records, reservations or exceptions in patents or in acts authorizing the
issuance thereof, water rights, claims or title to water.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, or any other facts which a correct survey would disclose.
5. Any lien, or right to a lien, for services, labor or material heretofore
or hereafter furnished, imposed by law and not shown by the public records.
SPECIFIC EXCEPTIONS:
6. PORTLAND city liens, if any. None as of date hereof.
7. Conditions and restrictions established by City of PORTLAND,
For : Variance for sign
Ordinance No. : VZ 19-66
Recorded : February 21, 1966
Book : 467 Page : 248
8. Conditions and restrictions established by City of PORTLAND,
For : Parking lot and sign
Ordinance No. : DA 26-65
Recorded : March 4, 1966
Book : 471 Page : 154
9. Conditions and restrictions established by City of PORTLAND,
For : Design review
Ordinance No. : DZ 9-71
Recorded : August 16, 1971
Book : 807 Page : 890
LAND SALE CONTRACT 34
BROADWAY PROPERTY CONTINUED
10. Line of Credit Deed of Trust, including the terms and provisions thereof,
Grantor : METROPOLITAN CLINIC, P.C.
Trustee : U.S. BANK OF WASHINGTON, N.A.
Beneficiary : UNITED STATES NATIONAL BANK OF OREGON
Amount: : $1,900,000.00
Dated : December 22, 1995
Recorded : December 29, 1995
Fee No.: : 95 162031
11. Right, title and interest of METROPOLITAN CLINIC, P.C., as disclosed by Deed
of Trust, set forth next above.
12. Agreement, including the terms and provisions thereof,
For: : Lessee's equipment lease
Between: : RAINIERBANK LEASING, INC.,
METROPOLITAN CLINIC, P.C.,
a corporation, and METROPOLITAN
CLINIC BUILDING COMPANY
Recorded: : August 7, 1980
Book : 1460 Page : 1407
13. Right, title and interest of METROPOLITAN CLINIC BUILDING COMPANY, as
disclosed by Agreement, set forth next above.
14. Conditions and restrictions established by City of PORTLAND,
For : Design review
Ordinance No. : DZ 8-89
Recorded : March 13, 1989
Book : 2185 Page : 641
LAND SALE CONTRACT 35
EXHIBIT F (continued)
Permitted Title Exceptions
WESTSIDE PROPERTY
GENERAL EXCEPTIONS:
1. Taxes or assessments which are not shown as existing liens by the records
of any taxing authority that levies taxes or assessments on real property or by
the public records, proceedings by a public agency which may result in taxes or
assessments, or notices of such proceedings whether or not shown by the records
of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the public
records but which could be ascertained by an inspection of said land or by
making inquiry of persons in possession thereof.
3. Easements, or claims of easement or encumbrances, not shown by the public
records, reservations or exceptions in patents or in acts authorizing the
issuance thereof, water rights, claims or title to water.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, or any other facts which a correct survey would disclose.
5. Any lien, or right to a lien, for services, labor or material heretofore
or hereafter furnished, imposed by law and not shown by the public records.
SPECIFIC EXCEPTIONS:
6. The herein described premises are within and subject to the statutory
power of assessment of UNIFIED SEWERAGE AGENCY.
7. BEAVERTON city liens, if any. None as of date hereof.
8. Limited access as set forth in deed from XXXXXXX XXXXXXX, to the State of
Oregon, by and through its State Highway Commission, recorded August 1,
1942, in Book 210, Page 104, which provides that no right of easement or
right of access to, from or across the State Highway, other than expressly
provided for, shall attach to the abutting property.
Affects : Lot 9
Modified by instrument, including the terms and provisions thereof,
Recorded : October 9, 1961
Book : 451 Page : 4
LAND SALE CONTRACT 36
WESTSIDE PROPERTY CONTINUED
9. Limited access as set forth in deed from XXXXXX X. XXXXXXXXX, to the
State Of Oregon, by and through its State Highway Commission, recorded
September 12, 1942, in Book 211, Page 141, which provides that no right
of easement or right of access to, from or across the State Highway,
other than expressly provided for, shall attach to the abutting
property.
Affects : Xxx 00
00. Xxxxxxxxx, conditions and restrictions as shown on the plat.
11. No vehicular access to X.X.Xxxxxxx Road from Lots 7, 8, 11 and 12 and
adjoining 50 feet along N.W. 167th Place as shown on the recorded plat.
12. Easement as shown on Plat.
For : Storm drain right of way:
Location : The Northerly lot line 10 feet in width
and the Easterly lot line 15 feet in
width
13. Easement as shown on Plat.
For : Utility
Location : Front lot lines 6 feet in width
14. Benefits, rights and duties including, but not limited to, use and
maintenance of undivided common ownership of Tract "E", as shown on the
recorded plat.
15. Conditions, restrictions, easements and setback lines, including the
terms and provisions thereof,
Recorded : February 22, 1980
Fee No. : 80006014
Affects : A portion of Lot 10
Restrictions herein, if any, based on race, color, religion, sex,
handicap, familial status or national origin are deleted.
16. Conditions and restrictions, including the terms and provisions thereof,
Recorded : August 17, 1984
Fee No. : 84032772
Affects : Xxx 00
00. Xxxxxxxxxxx Xxxxxxxxx to Waive Remonstrance, including the terms and
provisions thereof,
For : Sidewalks
Recorded : January 4, 1985
Fee No. : 85000452
18. Conditions, restrictions, easements and setback lines, including the
terms and provisions thereof,
Recorded : August 5, 1985
Fee No. : 85029794
LAND SALE CONTRACT 37
WESTSIDE PROPERTY CONTINUED
Amended by instrument, including the terms and provisions thereof,
Recorded : September 20, 1989
Fee No. : 89-44783
Restrictions herein, if any, based on race, color, religion, sex,
handicap, familial status or national origin are deleted.
19. Restrictive Covenants to Waive Remonstrance, including the terms and
provisions thereof,
For : Storm drainage
Recorded : October 17, 1985
Fee No. : 85041550
20. Line of Credit Mortgage/Deed of Trust and Security Agreement,
including the terms and provisions thereof,
Grantor : METROPOLITAN CLINIC, P.C., an Oregon
professional corportion
Trustee : CHICAGO TITLE INSURANCE COMPANY OF OREGON
Beneficiary : XXXXXXX XXXXXXXX COMPANY, an Oregon
corporation (Construction Loan) and
UNITED OF OMAHA LIFE INSURANCE
COMPANY, a Nebraska corporation
(Permanent Loan)
Amount : $1,800,000.00
Dated : December 12, 1989
Recorded : December 13, 1989
Fee No. : 89-60698
The beneficial interest of Xxxxxxx Xxxxxxxx Company was assigned to
UNITED OF OMAHA LIFE INSURANCE COMPANY, a Nebraska corporation, by
document recorded July 19, 1990, as Fee No. 90-38272.
21. Assignment of Leases and Rents, including the terms and provisions
thereof, given as additional security for the Deed of Trust set forth
as Exception No. 20 above,
Assignor : METROPOLITAN CLINIC, P.C., an Oregon
professional corporation
Assignee : XXXXXXX XXXXXXXX COMPANY, an Oregon
corporation, and its successors and
assigns, and UNITED OF OHAMA LIFE
INSURANCE COMPANY, a Nebraska
corporation
Dated : December 12, 1989
Recorded : December 13, 1989
Fee No. : 89-60699
22. Financing Statement, including the terms and provisions thereof,
Debtor : METROPOLITAN CLINIC, P.C.
Secured Party : XXXXXXX XXXXXXXX COMPANY
Recorded : December 13, 1989
Fee No. : 89-60700
LAND SALE CONTRACT 38
WESTSIDE PROPERTY CONTINUED
The above Financing Statement was assigned to UNITED OF OMAHA LIFE
INSURANCE COMPANY by instrument
Recorded : July 19, 1990
Fee No. : 90-38273
A notice of continuation of said Financing Statement was
Recorded : December 9, 1994
Fee No. : 94110263
LAND SALE CONTRACT 39
EXHIBIT F (continued)
Permitted Title Exceptions
TUALATIN PROPERTY
GENERAL EXCEPTIONS:
1. Taxes or assessments which are not shown as existing liens by the records
of any taxing authority that levies taxes or assessments on real property or by
the public record, proceedings by a public agency which may result in taxes or
assessments, or notices of much proceedings whether or not shown by the records
of much agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the public
records but which could be ascertained by an inspection of said land or by
making inquiry of persons in possession thereof.
3. Easements, or claims of easement or encumbrances, not shown by the public
records, reservations or exceptions in patents or in acts authorizing the
issuance thereof, water rights, claims or title to water.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, or any other facts which a correct survey would disclose.
5. Any lien, or right to a lien, for services, labor or material heretofore
or hereafter furnished, imposed by law and not shown by the public records.
SPECIFIC EXCEPTIONS:
6. The herein described premises are within and subject to the statutory
power of assessment of UNIFIED SEWERAGE AGENCY.
7. TUALATIN city liens, if any. None as of date hereof.
8. Easement, including the terms, rights and provisions thereof,
For : Right of way and incidents thereto
Granted to : PACIFIC TELEPHONE AND TELEGRAPH COMPANY
Recorded : January 31, 1913
Book : "D" Page : 100
9. Line of Credit Deed of Trust, including the terms and provisions thereof,
Grantor : METROPOLITAN CLINIC, P.C., an Oregon
corporation
Trustee : TICOR TITLE INSURANCE CO
Beneficiary : UNITED STATES NATIONAL BANK OF OREGON
Amount : $3,750,000.00
Dated : June 15, 1995
Recorded : July 13, 1995
Fee No. : 95048472
LAND SALE CONTRACT 40
TUALATIN PROPERTY CONTINUED
10. Assignment of Rents including the terms and provisions thereof, given as
additional security for the Deed of Trust, set forth as Exception No.
9 above,
Assignor : METROPOLITAN CLINIC, P.C., a
corporation
Assignee : UNITED STATES NATIONAL BANK OF OREGON
Dated : June 15, 1995
Recorded : July 13, 1995
Fee No. : 95048473
11. Street Improvement Agreement, including the terms and provisions thereof,
Between : CITY OF TUALATIN, a municipal
corporation of Washington, and
CLACKAMAS COUNTIES, OREGON and
METROPOLITAN CLINIC P.C., a corporation
Recorded : July 13, 1995
Fee No. : 95048359
12. Easement, including the terms, rights and provisions thereof,
For : Permanent slope easement
Granted to : CITY OF TUALATIN, a political
subivision of the State of Oregon
Recorded : October 19, 1995
Fee No. : 95076175
Affects : The East line of Parcel III
LAND SALE CONRACT 41
