PURCHASE AND SALE AGREEMENT between CRUSE-TWO, L.L.C., an Oklahoma limited liability company, and CRUSE-SIX, L.L.C., an Oklahoma limited liability company (collectively, “Sellers”) and GMR OKLAHOMA CITY, LLC, a Delaware limited liability company...
Exhibit 10.1
between
XXXXX-TWO, L.L.C.,
an Oklahoma limited liability company, and
XXXXX-SIX, L.L.C.,
an Oklahoma limited liability company
(collectively, “Sellers”)
and
GMR OKLAHOMA CITY, LLC,
a Delaware limited liability company
(“Buyer”)
Property:
OCOM Hospital and
OCOM Physical Therapy,
0000 Xxxxx Xxxxxx Xxxxxx, and
OCOM North Ambulatory Surgical Center (ASC),
000 XX 000xx Xxxxxx,
Xxxxxxxx Xxxx, XX
January 30, 2017
TABLE OF CONTENTS
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1. | Sale and Purchase | 3 | |
2. | Purchase Price | 3 | |
2.1 | Deposit | 3 | |
2.2 | Payment at Closing | 3 | |
2.3 | Independent Consideration | 4 | |
3. | Due Diligence Inspections | 4 | |
3.1 | Entry | 4 | |
3.2 | Inspection Period | 5 | |
3.3 | Property Condition Assessment | 5 | |
3.4 | Title and Survey Matters | 6 | |
3.5 | Lease Amendments | 7 | |
4. | Representations and Warranties of Sellers | 7 | |
4.1 | Authority | 7 | |
4.2 | No Conflict | 8 | |
4.3 | OFAC Compliance | 8 | |
4.4 | No Governmental Authority Required | 8 | |
4.5 | Credit of the Property | 8 | |
4.6 | Governmental Commitments | 9 | |
4.7 | Leases | 9 | |
4.8 | No Condemnation | 9 | |
4.9 | Contracts | 9 | |
4.10 | Tenant Improvement Allowances | 9 | |
4.11 | Correction of Conditions | 9 | |
4.12 | Compliance | 10 | |
4.13 | Property Permits | 10 | |
4.14 | Hazardous Materials | 10 | |
4.15 | Litigation | 11 | |
4.16 | FIRPTA | 11 | |
4.17 | No Bankruptcy | 11 | |
4.18 | Change of Facts | 11 | |
4.19 | On-Site Employees | 11 | |
4.20 | Information | 11 | |
4.21 | No Other Options | 11 | |
4.22 | Survivability of Representations and Warranties | 11 | |
4.23 | Limitations Regarding Representations and Warranties | 11 | |
5. | Representations of Buyer | 12 | |
5.1 | Authority | 12 | |
5.2 | No Conflict | 12 |
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5.3 | Source of Funds | 12 | |
5.4 | OFAC Compliance | 12 | |
5.5 | Change of Facts | 13 | |
6. | Conditions Precedent to Buyer’s Obligations | 13 | |
6.1 | Accuracy of Representations | 13 | |
6.2 | Performance | 13 | |
6.3 | Documents and Deliveries | 13 | |
6.4 | Master Lease | 13 | |
6.5 | Title Policy | 14 | |
6.6 | Tenant Estoppel Certificates | 14 | |
6.7 | Subordination and Non-Disturbance Agreements (SNDAs) | 14 | |
6.8 | Lease Amendments | 14 | |
7. | Conditions Precedent to Sellers’ Obligations | 15 | |
7.1 | Accuracy of Representations | 15 | |
7.2 | Performance | 15 | |
7.3 | Documents and Deliveries | 15 | |
7.4 | Lease Amendment | 15 | |
8. | Failure of Conditions | 15 | |
9. | Pre-Closing Matters | 15 | |
9.1 | Leasing Matters | 15 | |
9.2 | Adjustment of New Leasing Expenses | 16 | |
9.3 | Adjustments of Leasing Expenses | 16 | |
9.4 | Termination for Default | 16 | |
9.5 | Contracts | 16 | |
9.6 | No Contracting for Sale of Property | 17 | |
9.7 | No Liens on Property | 17 | |
9.8 | Survival | 17 | |
10. | Closing; Deliveries | 17 | |
10.1 | Time of Closing | 17 | |
10.2 | Seller Deliveries | 17 | |
10.3 | Buyer Deliveries | 19 | |
11. | Apportionments; Taxes; Expenses | 19 | |
11.1 | Apportionments | 19 | |
11.2 | Closing Costs | 21 | |
12. | Damage or Destruction; Condemnation; Insurance | 21 | |
13. | Remedies | 21 | |
13.1 | Buyer Default | 21 | |
13.2 | Seller Default | 22 | |
14. | Possession | 22 |
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15. | Notices | 22 | |
15.1 | If to Buyer: | 22 | |
16. | Brokers | 23 | |
17. | Escrow Agent | 24 | |
17.1 | Obligations | 24 | |
17.2 | Reliance | 24 | |
17.3 | Indemnification | 24 | |
17.4 | Disputes | 24 | |
17.5 | Counsel | 24 | |
18. | Indemnification | 25 | |
18.1 | Seller’s Indemnification | 25 | |
18.2 | Buyer’s Indemnification | 25 | |
18.3 | Definition of Exist | 25 | |
18.4 | Indemnification Procedure | 25 | |
19. | Miscellaneous | 27 | |
19.1 | Assignability | 27 | |
19.2 | Governing Law; Bind and Inure | 27 | |
19.3 | Recording | 27 | |
19.4 | Time of the Essence | 27 | |
19.5 | Further Assurances | 27 | |
19.6 | Exclusivity | 27 | |
19.7 | Non-Solicitation | 28 | |
19.8 | Headings | 28 | |
19.9 | Counterparts | 28 | |
19.10 | Exhibits | 28 | |
19.11 | Use of Proceeds to Clear Title | 28 | |
19.12 | Submission not an Offer or Option | 29 | |
19.13 | Entire Agreement; Amendments | 29 | |
19.14 | Counterparts; Electronic Signatures | 29 | |
19.15 | Attorneys’ Fees | 29 | |
19.16 | Waiver of Jury Trial | 29 | |
19.17 | No Waiver | 29 | |
19.18 | Rules of Construction | 30 | |
19.19 | Confidentiality | 30 |
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(OCOM Hospital, Physical Therapy and North ASC, Oklahoma City, OK)
This PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into effective as of the 30th day of January, 2017 (the “Effective Date”), by and between XXXXX-TWO, L.L.C., an Oklahoma limited liability company (“Xxxxx-Two”), and XXXXX-SIX, L.L.C., an Oklahoma limited liability company (“Xxxxx-Six” and collectively with Xxxxx-Two, “Sellers”); and GMR OKLAHOMA CITY, LLC, a Delaware limited liability company (“Buyer”). American Eagle Title Insurance Company (“Escrow Agent”) joins in this Agreement for the limited purposes set forth herein.
A. This Agreement is made with reference to the following property (collectively, the “Property”):
(1) Xxxxx-Two’s fee interest in that certain real property commonly known as the Oklahoma Center for Orthopaedic & Xxxxxxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx X and C located at 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, which land is more particularly described on Exhibit “A-1” attached hereto and incorporated herein by this reference, together with all easements, rights and privileges appurtenant thereto, if any (collectively, the “OCOM South Land”);
(2) All of Xxxxx-Two’s right, title and interest in and to the buildings located upon the OCOM South Land (the “OCOM South Buildings”), together with all improvements, structures, fixtures and parking areas located on the OCOM South Land, if any, and appurtenant thereto (the OCOM South Buildings and such improvements, structures, fixtures and parking areas being hereinafter collectively referred to as the “OCOM South Improvements,” and the OCOM South Land and the OCOM South Improvements being hereinafter collectively referred to as the “OCOM South Real Property”);
(3) Upon the expiration or termination of the Master Lease (as defined in Section 6.4 of this Agreement), all of Xxxxx-Two’s right, title and interest in and to the tenant leases relating to the OCOM South Improvements and other occupancy agreements with tenants occupying or using all or any portion of the OCOM South Real Property (collectively with all amendments thereto, the “OCOM South Lease”), any and all security deposits, letters of credit, advance rental, letters of credit or like payments, if any, held by Xxxxx-Two (collectively, the “OCOM South Security Deposits”), and all guaranties of the OCOM South Lease, if any, held by Xxxxx-Two;
(4) Upon the expiration or termination of the Master Lease, all of Xxxxx-Two’s right, title and interest in and to all fixtures, equipment, furniture, furnishings, appliances, supplies and other personal property of every nature and description attached or pertaining to, or otherwise used in connection with, the OCOM South Real Property, owned by Xxxxx-Two and located within the OCOM South Real Property but expressly excluding any of the foregoing owned or leased by any tenant and any personal property owned by a third party and leased to Xxxxx-Two (the “OCOM South Personalty”); and
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(5) Upon the expiration or termination of the Master Lease, all of Xxxxx-Two’s right, title and interest in and to all intangible rights and property used or useful in connection with the foregoing, if any, including, without limitation, all development rights, contract rights, guaranties, licenses, plans, drawings permits and warranties and all of Xxxxx-Two’s rights, title and interest, if any, in and to any service marks, logos or any trade names as well as all of Xxxxx-Two’s rights and remedies under all construction, design and related agreements relating to the OCOM South Buildings (collectively, the “OCOM South Intangible Property”);
(6) Xxxxx-Six’s fee interest in that certain real property commonly known as the Oklahoma Center for Orthopaedic & Multispecialty Surgery Medical Plaza located at 0000 XX 000xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx, which land is more particularly described on Exhibit “A-2” attached hereto and incorporated herein by this reference, together with all easements, rights and privileges appurtenant thereto, if any (collectively, the “OCOM North Land”);
(7) All of Xxxxx-Six’s right, title and interest in and to the building located upon the OCOM North Land (the “OCOM North Building”), together with all improvements, structures, fixtures and parking areas located on the OCOM North Land, if any, and appurtenant thereto (the OCOM North Building and such improvements, structures, fixtures and parking areas being hereinafter collectively referred to as the “OCOM North Improvements,” and the OCOM North Land and the OCOM North Improvements being hereinafter collectively referred to as the “OCOM North Real Property”);
(8) All of Xxxxx-Six’s right, title and interest in and to the tenant leases relating to the OCOM North Improvements and other occupancy agreements with tenants occupying or using all or any portion of the OCOM North Real Property (collectively with all amendments thereto, the “OCOM North Lease”), any and all security deposits, letters of credit, advance rental, letters of credit or like payments, if any, held by Xxxxx-Six (collectively, the “OCOM North Security Deposits”), and all guaranties of the OCOM North Lease, if any, held by Xxxxx-Six;
(9) All of Xxxxx-Six’s right, title and interest in and to all fixtures, equipment, furniture, furnishings, appliances, supplies and other personal property of every nature and description attached or pertaining to, or otherwise used in connection with, the OCOM North Real Property, owned by Xxxxx-Six and located within the OCOM North Real Property but expressly excluding any of the foregoing owned or leased by any tenant and any personal property owned by a third party and leased to Xxxxx-Six (the “OCOM North Personalty”); and
(10) All of Xxxxx-Six’s right, title and interest in and to all intangible rights and property used or useful in connection with the foregoing, if any, including, without limitation, all development rights, contract rights, guaranties, licenses, plans, drawings permits and warranties and all of Xxxxx-Six’s rights, title and interest, if any, in and to any service marks, logos or any trade names as well as all of Xxxxx-Six’s rights and remedies under all construction, design and related agreements relating to the OCOM North Building (collectively, the “OCOM North Intangible Property”).
B. The Property described in Recital A(1)-(5) above is collectively referred to as the “OCOM South Property,” and the Property described in Recital A(6)-10) above is collectively referred to as the “OCOM North Property.” Sellers are prepared to sell, transfer and convey the Property to Buyer, and Buyer is prepared to purchase and accept the same from Sellers, all for the Purchase Price and on the other terms and conditions hereinafter set forth.
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In consideration of the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree:
1. Sale and Purchase. Sellers hereby agrees to sell, transfer and convey the Property to Buyer, and Buyer hereby agrees to purchase and accept the Property from Sellers, in each case for the Purchase Price and on and subject to the other terms and conditions set forth in this Agreement.
2. Purchase Price. The aggregate purchase price for the Property (the “Purchase Price”) shall be Forty Nine Million Five Hundred Thousand and No/100 Dollars ($49,500,000.00). The portion of the Purchase Price allocated to the OCOM South Property shall be Forty-Four Million Four Hundred Thousand and No/100 Dollars ($44,400,000) (the “OCOM South Purchase Price”), and the portion of the Purchase Price allocated to the OCOM North Property shall be Five Million One Hundred Thousand and No/100 Dollars ($5,100,000) (the “OCOM North Purchase Price”).
The Purchase Price, subject to the terms and conditions hereinafter set forth, shall be paid to Sellers by Buyer as follows:
2.1 Deposit. Within two (2) Business Days following the mutual execution and delivery of this Agreement by Buyer and Sellers, Buyer shall deliver to Escrow Agent a deposit in the amount of Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) (together with any interest thereon, the “Initial Deposit”). If Buyer does not terminate this Agreement pursuant to Section 3.2 on or before the expiration of the Inspection Period, Buyer shall deliver to Escrow Agent an additional deposit in the amount of Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) (together with any interest thereon, the “Additional Deposit”) within two (2) Business Days following the expiration of the Inspection Period. The Initial Deposit and the Additional Deposit shall be referred to herein collectively as the “Deposit.” The Deposit shall be delivered to Escrow Agent in immediately available funds, to be held in escrow and delivered in accordance with this Agreement at the following address: American Eagle Title Insurance Company, 000 XX 00xx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx XX 00000, attention: Xx. Xxxx Xxxxx, telephone (000) 000-0000, e-mail: xxxxxx@xxxxxxxxxxxx.xxx.
2.2 Payment at Closing. At the consummation of the transaction contemplated hereby (the “Closing”), Buyer shall deliver to Escrow Agent cash or immediately available funds in an amount equal to the Purchase Price, less the Deposit. The Purchase Price, subject to adjustments and apportionments as set forth herein, shall be paid at Closing by wire transfer of immediately available federal funds, transferred to the order or account of Sellers or such other person as Sellers may designate in writing, subject to the terms of the Post-Closing Escrow Agreement (as defined in Section 6.4, below).
The delivery and recording of documents and the disbursement of funds shall be effectuated through the Escrow Agent at the Closing and pursuant to the closing instructions from the parties hereto, which closing instructions shall not modify or diminish the parties’ respective obligations hereunder.
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2.3 Independent Consideration. Sellers and Buyer acknowledge and agree that One Hundred Dollars ($100.00) of the Deposit shall be paid to Sellers if this Agreement is terminated for any reason (the “Independent Contract Consideration”), in addition to any other rights Sellers may have hereunder. Moreover, Sellers and Buyer acknowledge and agree that the Independent Contract Consideration has been bargained for and agreed to as additional consideration for Sellers’ execution and delivery of this Agreement and is non-refundable to Buyer.
3. Due Diligence Inspections. No later than three (3) Business Days after the Effective Date, each Seller shall deliver to Buyer accurate and complete copies of all of the information set forth on Exhibit “L” (collectively, the “Property Information”) related to such Seller’s Property, to the extent such information is within such Seller’s possession or available to such Seller under the terms of the OCOM North Lease or the OCOM South Lease (collectively the “Leases”), as applicable. All Property Information shall be delivered to Attention: Xxxxxxx Xxxx, Chief Investment Officer, Global Medical REIT, address: 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, telephone: (000) 000-0000, facsimile: (000) 000-0000, e-mail: XxxxxxxX@xxxxxxxxxxxxxxxxx.xxx.
3.1 Entry. During the Inspection Period (as defined below), subject to the terms of the Leases affecting the Property, Buyer and its agents and representatives shall be entitled to enter upon the OCOM North Real Property and the OCOM South Real Property (collectively, the “Real Property”) from time to time (as coordinated through Sellers and the property manager for the tenants under the Leases), including all leased areas, upon reasonable prior notice to Sellers (and, to the extent applicable, the tenants under the Leases), to perform inspections and tests of the Property, including surveys, environmental studies, examinations and tests of all structural and mechanical systems within the OCOM North Improvements and the OCOM South Improvements (collectively, the “Improvements”), and to examine the books and records of Sellers relating to the Property. Buyer shall furnish to Sellers, at no expense to Sellers, copies of all studies, inspections and tests of the Property performed by or on behalf of Buyer.
Notwithstanding the foregoing, Buyer shall not be permitted to interfere unreasonably with Sellers’ operations at the Property or disturb or interfere with any tenant’s rights or occupancy at the Property, and the scheduling of any inspections shall take into account the timing and availability of access to tenants’ premises, subject to tenants’ rights under the Leases or otherwise. If Buyer wishes to engage in any testing which is invasive, which will damage or disturb any portion of the Property, which will involve sampling, or which will involve testing of subsurface soils, surface water, or groundwater, Buyer shall obtain Seller’s prior written consent thereto, which shall not be unreasonably withheld, conditioned or delayed. Buyer agrees that in making any inspections of, or conducting any testing of, on, or under the Property, Buyer or Buyer’s agents will carry not less than One Million and 00/100 Dollars ($1,000,000.00) commercial general liability insurance covering such activities and, upon request of Sellers, will provide Sellers with written evidence of such insurance. Buyer shall repair any damage to the Property caused by any such tests or investigations, and indemnify, defend and hold harmless Sellers, their members and affiliates and their respective directors, officers, managers, employees, agents, successors and assigns from any and all liabilities, claims, losses, suits, demands, costs and expenses resulting therefrom. The indemnity and repair obligations of Buyer under this paragraph shall survive Closing or the termination of this Agreement.
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3.2 Inspection Period. The term “Inspection Period,” as used herein, shall mean the period commencing on the Effective Date and ending at 5:00 p.m. Pacific time on the date which is forty-five (45) days following the later of (a) Buyer’s receipt of the Property Information, or (b) the Effective Date. Buyer may terminate this Agreement in its entirety in its sole discretion for a reason or no reason by giving written notice of such election to Sellers and Escrow Agent at any time prior to the expiration of the Inspection Period, in which event the Initial Deposit shall automatically be refunded and returned forthwith to Buyer and, except as expressly set forth herein, neither party shall have any further liability or obligation to the other hereunder. In the absence of such written notice of termination, the contingency provided for in this Section 3.2 no longer shall be applicable, Buyer shall deliver to Escrow Agent the Additional Deposit provided for in Section 2.1, and this Agreement shall continue in full force and effect.
3.3 Property Condition Assessment. Prior to the expiration of the Inspection Period, Buyer shall cause a property condition assessment to be performed by a professional commercial property inspector for each of the OCOM North Property and the OCOM South Property. Buyer shall provide to each respective Seller copies of the inspector’s report, which shall set forth in reasonable detail the results of such assessment and the inspector’s recommended repairs and maintenance, if any (the “Assessment Report”). The Assessment Report shall be mutually acceptable to Buyer and the respective Seller, which acceptance shall be acknowledged in writing by the respective Seller prior to the expiration of the Review Period. If Buyer fails to deliver the Assessment Report, or if the respective Seller declines or fails to provide acknowledgement of its acceptance of the Assessment Report, prior to the expiration of the Inspection Period, then this Agreement shall be deemed terminated, in which event the Initial Deposit shall automatically be refunded and returned forthwith to Buyer and, except as expressly set forth herein, neither party shall have any further liability or obligation to the other hereunder. If the Assessment Reports for the Property are accepted, such Assessment Reports shall be referenced in or attached as an exhibit to the Master Lease of the OCOM South Property or the Assignment and Assumption of Leases, Contracts and Security Deposits for the OCOM North Property, as applicable, and, subject to ordinary wear and tear and casualty damage, shall serve as conclusive evidence of the condition of the respective Property as of the Closing Date.
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3.4 Title and Survey Matters. Within fifteen (15) Business Days following the Effective Date, Sellers shall cause Escrow Agent (in its capacity as title company issuing the title policy described below, (“Title Company”)) to furnish to Buyer and Sellers title commitments (the “Title Commitments”) with respect to the Property together with copies of all instruments listed as exceptions to title. Within ten (10) Business Days following Buyer’s receipt of the Title Commitments, Buyer shall use commercially reasonable efforts to cause a duly licensed Oklahoma surveyor to furnish to Buyer and Xxxxxxx XXXX/NSPS land title surveys of the Real Property (the “Surveys”). Buyer will have until the expiration of the Inspection Period to give written notice to Sellers specifying Buyer’s objections to the Title Commitment, title exceptions listed therein, and the Surveys (collectively, “Title Objections”), if any. If Buyer timely notifies Sellers in writing of the Title Objections, Sellers shall have five (5) business days after receipt of such notice (the “Title Cure Period”) to elect (but shall have no obligation whatsoever) to cure any Title Objection, and if so elected, shall either (a) satisfy the Title Objections at Sellers’ sole cost and expense and cause the Title Company to revise the Title Commitment to reflect such satisfaction, or (b) provide Buyer and the Title Company with satisfactory evidence that Sellers can and will cure such Title Objections prior to or at Closing; provided, however, Sellers shall be obligated to remove, pay and/or satisfy prior to or at Closing any monetary liens against the Property created or incurred by or through Sellers (each, a “Monetary Lien”). Failure by Sellers to timely respond in writing to any Title Objections shall be deemed Sellers’ decision not to cure any Title Objections. If Sellers elect not to satisfy any of the Title Objections within the Title Cure Period, Buyer shall have the option, exercisable within five (5) days after the expiration of the Title Cure Period, to either (i) waive the unsatisfied Title Objections, in which event the unsatisfied Title Objections will become Permitted Exceptions (hereinafter defined), or (ii) terminate this Agreement in which event the Deposit shall automatically be refunded and returned forthwith to Buyer and, except as expressly set forth herein, neither party shall have any further liability or obligation to the other hereunder. If Buyer fails to notify Sellers in writing within five (5) days after the expiration of the Title Cure Period that Buyer has elected to terminate this Agreement pursuant to this Section 3.4, then Buyer shall be deemed to have waived all unsatisfied Title Objections. If, after the expiration of the Inspection Period, Title Company amends or adds any exception to the Title Commitments other than at the request of Buyer (including any liens against the Property for a liquidated amount that Sellers are not obligated hereunder to satisfy at Closing), the Title Company will notify Buyer and Sellers immediately. Within two (2) business days after Buyer receives notice from Title Company (and the Closing Date shall be extended if needed so that the Closing shall not occur prior to the end of such two (2) Business Day period), together with a copy of such intervening lien or matter, Buyer shall notify Sellers in writing of any objections thereto (a “Supplemental Title Objection”). If Buyer fails to notify Sellers of such Supplemental Title Objection within such two (2) Business Day period, Buyer shall be deemed to have waived any objection and approved all such exceptions. If the Supplemental Title Objection is material and adverse to the Property, is not caused by Buyer and Sellers do not agree to remove such matter (other than any Monetary Lien), then Buyer may within two (2) business days after the Supplemental Title Objection, terminate this Agreement in which event the Deposit shall automatically be refunded and returned forthwith to Buyer and, except as expressly set forth herein, neither party shall have any further liability or obligation to the other hereunder. If Sellers have not received written notice from Buyer that Buyer has elected to terminate this Agreement within such two (2) Business Day period of time, then Buyer shall be deemed to have waived any unsatisfied Supplemental Title Objection. “Permitted Exceptions” shall mean any title or survey item, other than Monetary Liens: (i) not raised as Title Objections by Buyer, or (ii) raised as Title Objections by Buyer but thereafter waived or deemed waived.
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3.5 Lease Amendments. Buyer acknowledges and agrees that concurrent with the delivery of the Master Lease of the OCOM South Property (pursuant to Section 10.3.3) and the Assignment and Assumption of Leases, Contracts and Security Deposits (pursuant to Section 10.3.5) for the OCOM North Property, each of the Leases shall be amended pursuant to amendments in form and substance prepared by Sellers and approved by Buyer in its reasonable discretion (each, a “Lease Amendment”), which Lease Amendment(s) shall include (i) a requirement that the tenants under each such Lease shall, upon Buyer’s written request (in its capacity as landlord or master landlord, as the case may be), provide Buyer with unaudited quarterly financial reports (balance sheets and related statements of income and cash flow statements), and, upon Buyer’s additional request from time to time and at Buyer’s sole expense, but no more than once every twelve (12) months, provide Buyer with audited financials as well, and (ii) with respect to the OCOM South Lease:
(a) an acknowledgment that, with respect to any indemnity obligations that the tenant may owe to Xxxxx-Two, as landlord, such indemnity obligations shall extend to Buyer in its capacity as master landlord,
(b) an acknowledgement that Xxxxx-Two, as landlord, has become a tenant under the Master Lease and that the OCOM South Lease shall be thereafter deemed a sublease, subject and subordinate to the Master Lease for so long as such Master Lease remains in effect and, upon the expiration of such Master Lease, Xxxxx-Two shall assign, and Buyer shall assume, the landlord’s direct interest in the OCOM South Lease, which shall thereafter continue in effect pursuant to its terms and conditions,
(c) an acknowledgement that property insurance required by OCOM South Lease shall be provided by an insurance carrier designated by Buyer at OCOM’s sole cost and expense provided that any such insurance shall have substantially similar premiums, deductibles, and coverages as the property insurance maintained by OCOM pursuant to the OCOM South Lease as of the date of this Agreement,
(d) a release of Xxxxxxx X. Xxxxx, an individual, from the applicable guaranties with respect to such Lease.
Sellers will use commercially reasonable efforts to obtain the Lease Amendments; provided, that either Seller’s failure to obtain the Lease Amendments shall not constitute a default or breach of such Seller’s obligations under this Agreement.
4. Representations and Warranties of Sellers. Each Seller represents and warrants to Buyer, with respect to such Seller and with respect to the Property owned by such Seller, as follows:
4.1 Authority. Seller is a limited liability company organized under the laws of the State of Oklahoma and Seller has all requisite power and authority to enter into this Agreement and perform its obligations hereunder. The execution, delivery and performance of this Agreement and all documents contemplated hereby by Seller has been duly and validly authorized by all necessary action on the part of Seller, and all required consents and approvals have been duly obtained and will not result in a breach of any of the terms or provisions of, or constitute a default under any indenture, agreement or instrument to which any Seller is a party. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
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4.2 No Conflict. Neither the execution, delivery or performance of this Agreement nor compliance herewith (i) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (a) the operating agreement of Seller or any other agreement or instrument to which Seller is a party or by which all or any part of the Property is bound or (b) any law or any order, writ, injunction or decree of any court or governmental authority, (ii) results in the creation or imposition of any lien, charge or encumbrance upon its property pursuant to any such agreement or instrument, or (iii) violates any restriction, requirement, covenant or condition to which all or any part of the Property is bound.
4.3 OFAC Compliance. Seller is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such other rules, regulations, legislation or executive orders are collectively referred to herein as the “Orders”). Neither Seller nor any beneficial owner of Seller:
4.3.1 is listed on the Specifically Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Orders or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (collectively, the “Lists”);
4.3.2 is a person who has been determined by competent authority to be subject to the prohibitions contained in the Orders;
4.3.3 is owned or controlled by, or acts for or on behalf of, any person or entity listed on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or
4.3.4 shall transfer or permit the transfer of any interest in Seller or any beneficial owner in Seller to any person or entity who is, or any of whose beneficial owners are, listed on the Lists.
4.4 No Governmental Authority Required. No authorization, consent or approval of any governmental authority (including, without limitation, courts) is required for the execution and delivery by Seller of this Agreement or the performance of its obligations hereunder.
4.5 Credit of the Property. Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (v) admitted in writing its inability to pay its debts as they come due or (vi) made an offer of settlement, extension or composition to its creditors generally.
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4.6 Governmental Commitments. Seller has not entered into any material commitments or agreements with any governmental authorities or agencies affecting the Property.
4.7 Leases. Seller has delivered or made available to Buyer true and complete copies of the Leases to which Seller is a party. The list of Leases to which Seller is a party set forth on Exhibit “B” attached hereto is true, correct and complete. Each of the Leases is in full force and effect. Seller is “landlord” or “lessor” under the Leases to which Seller is a party and is entitled to assign to Buyer, without the consent of any party, the Leases. The tenant is Oklahoma Center for Orthopedic & Multi-Specialty Surgery, LLC, an Oklahoma limited liability company (“OCOM”). There are no rights to renew, extend or terminate the Leases or expand any tenant lease premises, except as provided in the Leases. There is no Lease which provides that a tenant pays rent in the form of percentage rent. No rent or other payments have been collected in advance for more than one (1) month and no rents or other deposits are held by Sellers, except the security deposits, if any, described in the Leases and rent for the current month. Neither Seller nor any tenant is in default under its respective Lease, and there exists no condition or circumstance or written notice of any condition or circumstance which, with the passage of time, would constitute a default under any of the Leases by any party. No tenant has asserted any claim of offset or other defense in respect of its or Seller’s obligations under its respective Lease. No tenant has (i) filed for bankruptcy or taken any similar debtor-protection measure, (ii) defaulted under its Lease, (iii) discontinued operations at the Property owned by Seller, or (iv) given notice of its intention to do any of the foregoing.
4.8 No Condemnation. Seller has not received any written notice of any pending or contemplated condemnation, eminent domain or similar proceeding with respect to all or any portion of the Real Property owned by Seller and, to Seller’s actual knowledge, no such proceedings are threatened.
4.9 Contracts. There are no construction, management, commission, brokerage, leasing, service, equipment, supply, maintenance or concession agreements entered into by or on behalf of Seller in effect with respect to the Real Property or the Personalty owned by Seller, except as set forth in Exhibit “C” (collectively, the “Contracts”). Seller will deliver or make available to Buyer true and complete copies of the Contracts. Seller has not, within the last year, received any written notice of any default under any contract that has not been cured or waived. To Seller’s knowledge, neither Seller nor any counterparty is in material default under any Contracts, and no event exists which, with the passage of time or the giving of notice or both, will become a material default thereunder on the part of Seller or any counterparty.
4.10 Tenant Improvement Allowances. There are no unpaid tenant improvement allowances, tenant improvement obligations of Landlord, leasing commissions and/or rent concessions with respect to any of the Leases.
4.11 Correction of Conditions. Seller has not received any written notice from, and, to the best of Seller’s knowledge, there are no grounds for, any association, declarant or easement holder requiring the correction of any condition with respect to the Property owned by Seller, or any part thereof, by reason of a violation of any other restrictions or covenants recorded against the Property. Seller is not in default under any such document, nor, to the best of Seller’s knowledge, is any other party subject to any such document.
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4.12 Compliance. Seller has not received any written notice from, and, to the best of Seller’s knowledge there are no grounds for, any governmental agency requiring the correction of any condition with respect to the Property owned by Seller, or any part thereof, by reason of a violation of any applicable federal, state, county or municipal law, code, rule or regulation (including those respecting the Americans With Disabilities Act), which has not been cured or waived. To the best of Seller’s knowledge, Seller and the Property owned by Seller are in compliance with all applicable federal, state, county and municipal laws, codes, rules and/or regulations. Seller has not received written notice from any governmental agency or other body of any existing violations of any federal, state, county or municipal laws, ordinances, orders, codes, regulations or requirements affecting the Real Property owned by Seller which have not been cured.
4.13 Property Permits. Seller has not received any written notice of an intention to revoke any certificate of occupancy, license, or permit issued in connection with the Property owned by Seller.
4.14 Hazardous Materials. To the best of Seller’s knowledge, except as disclosed in the Property Information provided to Buyer or in any environmental studies of the Property conducted by or on behalf of Buyer, there are no Hazardous Materials (as defined below) stored on, incorporated into, located on, present in or used on the Property in violation of, and requiring remediation under, any laws, ordinances, statutes, codes, rules or regulations. For purposes of this Agreement, the term “Hazardous Materials” shall mean any substance which is or contains: (i) any “hazardous substance” as now or hereafter defined in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.) (“CERCLA”) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the Recourse Conservation and Recovery Act (42 U.S.C. § 6901, et seq.) (“RCRA”) or regulations promulgated under RCRA; (iii) any substance regulated by the Toxic Substances Control Act (15 U.S.C. § 2601, et seq.); (iv) gasoline, diesel fuel or other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon gas; or (viii) any additional substances or materials which are now or hereafter classified or considered to be hazardous or toxic under any laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of the United States, the state, the county, the city or any other political subdivision in which the Property is located and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property or the use of the Property relating to pollution, the protection or regulation of human health, natural resources or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or waste into the environment (including, without limitation, ambient air, surface water, ground water or land or soil). Seller has received no notice that the Property or any portion thereof contains any form of toxic mold.
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4.15 Litigation. There is no action, suit, court or arbitration proceedings, or administrative action or proceeding, which is pending or threatened against or affecting the Property owned by Seller or arising out of Seller’s ownership, management or operation of the Real Property.
4.16 FIRPTA. Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Internal Revenue Code.
4.17 No Bankruptcy. Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets, (v) admitted in writing it inability to pay its debts as they come due or (vi) made an offer of settlement, extension or composition to its creditors generally.
4.18 Change of Facts. Seller shall promptly notify Buyer, in writing, of any event or condition known to Seller which occurs prior to the Closing, which causes a material adverse change in the facts relating to, or the truth of, any of Seller’s representations or warranties.
4.19 On-Site Employees. There are no on-site employees of Seller or its affiliates at the Property, and upon the Closing Date, Buyer shall have no obligation to employ or continue to employ any individuals employed by Seller or its affiliates in connection with the Property owned by Seller.
4.20 Information. Seller has no knowledge or information of any facts, circumstances, or conditions that are inconsistent with the representations and warranties contained herein. As used herein, “to Seller’s knowledge” shall be deemed to mean the actual knowledge of Xxxxxxx X. Xxxxx.
4.21 No Other Options. Other than this Agreement and the Permitted Exceptions, the Property is not subject to any outstanding agreement(s) of sale or options, rights of first refusal or other rights of purchase to which Seller is a party.
4.22 Survivability of Representations and Warranties. The representations and warranties of Sellers and Buyer set forth in this Agreement are remade as of the Closing Date and shall not be deemed to be merged into or waived by the instruments of Closing and shall survive after the Closing Date for a period of one (1) year.
4.23 Limitations Regarding Representations and Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLERS ARE NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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BUYER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT BUYER HAS OR WILL HAVE, PRIOR TO THE END OF THE INSPECTION PERIOD, INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE PURCHASE OF THE PROPERTY. BUYER HEREBY FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS RELYING UPON THE INSPECTION, EXAMINATION, AND EVALUATION OF THE PROPERTY BY BUYER. BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS”, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, and/or in the transaction documents referenced herein.
5. Representations of Buyer. Buyer represents and warrants that:
5.1 Authority. Buyer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement by Buyer has been duly authorized.
5.2 No Conflict. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder on the part of Buyer does not and will not violate any applicable law, ordinance, statute, rule, regulation, order, decree or judgment, conflict with or result in the breach of any material terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Buyer by reason of the terms of any contract, mortgage, lien, lease, agreement, indenture, instrument or judgment to which Buyer is a party or which is or purports to be binding upon Buyer or which otherwise affects Buyer, which will not be discharged, assumed or released at Closing. No action by any federal, state or municipal or other governmental department, commission, board, bureau or instrumentality is necessary to make this Agreement a valid instrument binding upon Buyer in accordance with its terms.
5.3 Source of Funds. Buyer has available to it unrestricted funds which it may use in its sole discretion to pay the full Purchase Price and otherwise comply with the provisions of this Agreement. Buyer acknowledges and agrees that its obligations hereunder are not contingent upon Buyer obtaining financing for the purchase of the Property.
5.4 OFAC Compliance. Buyer is in compliance with the requirements of the Order and other similar requirements contained in the rules and regulations of OFAC and in any enabling legislation or other Orders. Neither Buyer nor any beneficial owner of Buyer:
5.4.1 is listed on the Lists;
5.4.2 is a person who has been determined by competent authority to be subject to the prohibitions contained in the Orders;
5.4.3 is owned or controlled by, or acts for or on behalf of, any person or entity listed on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or
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5.4.4 shall transfer or permit the transfer of any interest in Buyer or any beneficial owner in Buyer to any person or entity who is, or any of whose beneficial owners are, listed on the Lists.
5.5 Change of Facts. Buyer shall promptly notify Seller, in writing, of any event or condition known to Buyer which occurs prior to the Closing, which causes a material adverse change in the facts relating to, or the truth of, any of Buyer’s representations or warranties.
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7.4 Lease Amendment. The OCOM South Lease shall have been amended as set forth in Section 3.5.
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10.2.1 Two (2) originals of the Master Lease, substantially in the form attached hereto as Exhibit “D”, duly executed by Xxxxx-Two.
10.2.2 One (1) original special warranty deed for the OCOM South Real Property from Xxxxx-Two (the “OCOM South Deed”), substantially in the form attached hereto as Exhibit “E,” duly executed and acknowledged by Xxxxx-Two, and one (1) original special warranty deed for the OCOM North Real Property from Xxxxx-Six (the “OCOM North Deed”), substantially in the form attached hereto as Exhibit “E,” duly executed and acknowledged by Xxxxx-Six.
10.2.3 Two (2) originals of the xxxx of sale (the “Xxxx of Sale”) for the Personalty (if any) from each Seller, substantially in the form attached hereto as Exhibit “F,” duly executed by each Seller.
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10.2.4 Two (2) originals of the assignment and assumption of Leases, Contracts and Security Deposits (the “Assignment and Assumption of Leases, Contracts and Security Deposits”) from each Seller, substantially in the form attached hereto as Exhibit “G,” duly executed by each Seller.
10.2.5 Two (2) originals of the assignment of the Intangible Property (the “Assignment of Intangible Property”) from each Seller, substantially in the form attached hereto as Exhibit “H,” duly executed by each Seller.
10.2.6 Two (2) originals of the Lease Amendments (as defined in Section 3.5), duly executed by each Seller (in its capacity as landlord under the applicable Lease) and by the applicable tenant; One (1) original of an owner's affidavit executed by each Seller as to the Property owned by such Seller sufficient for Title Company to issue, without extra charge, an owner’s policy of title insurance free of any exceptions for unfiled mechanics’ or materialmen’s liens for work performed by such Seller (but not any tenants) prior to Closing, or for rights of parties in possession other than pursuant to the Leases and the Master Lease, as applicable.
10.2.7 One (1) original of a Non-Foreign Affidavit as required by the Foreign Investors in Real Property Tax Act (“FIRPTA”), as amended, in the form of Exhibit “J,” duly executed by each Seller.
10.2.8 One (1) original of a certification by each Seller substantially in the form attached hereto as Exhibit “K” that all representations and warranties made by such Seller in Section 4 of this Agreement are true and correct in all material respects on the date of Closing, except as may be set forth in such certificate.
10.2.9 Keys or combinations to all locks at the OCOM North Property, to the extent in Sellers’ possession, and subject to the rights of the tenant of the OCOM North Property. Buyer hereby acknowledges and agrees that Seller shall be permitted to make the items described in this Section 10.2.9 available to Buyer at the Property in lieu of delivering them to Escrow Agent.
10.2.11 Two (2) originals of the Post-Closing Escrow Agreement, duly executed by Xxxxx-Two.
10.2.12 Original letter of credit with respect to obligations of Xxxxx-Two under Post-Closing Escrow Agreement, along with any fees associated therewith.
10.2.13 The original Estoppel Certificates and SNDAs.
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10.2.14 All other instruments and documents reasonably required to effectuate this Agreement and the transactions contemplated thereby.
10.3.1 A wire transfer of the Purchase Price in the amount required under Section 2.2 hereof (subject to the adjustments provided for in this Agreement).
10.3.2 A certification by Buyer substantially in the form attached hereto as Exhibit “K” that all representations and warranties made by Buyer in Section 5 of this Agreement are true and correct in all material respects on the date of Closing, except as may be set forth in such certificate.
10.3.3 Two (2) originals of the Master Lease, duly executed by Buyer.
10.3.4 Two (2) originals of each Xxxx of Sale, duly executed by Buyer.
10.3.5 Two (2) originals of each Assignment and Assumption of Leases, Contracts and Security Deposits, duly executed by Buyer.
10.3.6 Two (2) originals of each Assignment of Intangible Property, duly executed by Buyer.
10.3.7 Two (2) originals of each Lease Amendment (as defined in Section 3.5), duly executed by Buyer (acknowledging and agreeing to such Lease Amendment in its capacity as Master Lessor with respect to the OCOM South Lease, and as successor landlord with respect to the OCOM North Lease);
10.3.8 Two (2) originals of the Post-Closing Escrow Agreement, duly executed by Buyer.
10.3.9 All other instruments and documents reasonably required to effectuate this Agreement and the transactions contemplated thereby.
11. Apportionments; Taxes; Expenses.
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If there is any damage or destruction or condemnation or taking, regardless of the cost of any repair, and if Buyer elects not to terminate this Agreement as herein provided (to the extent Buyer is entitled to do so), then (1) in the case of a taking, all condemnation proceeds paid or payable to the Seller whose Property was taken shall belong to Buyer and shall be paid over and assigned to Buyer at Closing, and the Seller whose Property was taken shall be paid at Closing for the reasonable expenses incurred by such Seller in connection with such taking; and (2) in the case of a casualty, the Seller whose Property was damaged or destroyed shall assign to Buyer all rights to any insurance proceeds paid or payable to such Seller under the applicable insurance policies, less any costs of collection and any sums expended in restoration, and such Seller’s deductible (if any) shall be a credit to Buyer against the Purchase Price allocable to such Seller’s Property, and the parties shall proceed with the Closing without any reduction in the Purchase Price payable to such Seller.
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15.1 If to Buyer:
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Email: XxxxxxxX@xxxxxxxxxxxxxxxxx.xxx
Phone: (000) 000-0000
With a copy to:
Xxx, Castle & Xxxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Email: xxxxx@xxxxxxxxx.xxx
Phone: (000) 000-0000
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If to Sellers:
Xxxxx-Two, L.L.C.
Xxxxx-Six, L.L.C.
X.X. Xxx 000000
Xxxxxxxx Xxxx XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, D.O.
E-mail: xxxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
McAfee & Xxxx
Tenth Floor, Two Leadership Square
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx XX 00000
Attention: Xxxxx X. Xxxxxx and H. Xxxx Xxxxxxxx
E-mail: xxxxx.xxxxxx@xxxxxxxxxx.xxx;
xxxx.xxxxxxxx@xxxxxxxxxx.xxx
Phone: (000) 000-0000
If to Escrow Agent:
American Eagle Title Insurance Company
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx XX 00000
Attention: Xx. Xxxx Xxxxx
e-mail: xxxxxx@xxxxxxxxxxxx.xxx
Phone: (000) 000-0000
Any such notice or communication shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid; by hand delivery; by overnight courier service; or by e-mail (provided that such e-mail delivery is confirmed by the sender, by delivery service or by mail in the manner previously described within 24 hours after such transmission is sent). Any such notice or communication shall be effective when delivered or when delivery is refused.
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18.4 Indemnification Procedure.
18.4.1 If a party desires to make a claim against the other party in connection with any Losses for which such claiming party may seek indemnification under this Agreement (a “Claim”), the party entitled to indemnification (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of such Claim and the amount and circumstances surrounding it. Upon receipt of such notice from the Indemnified Party, the Indemnifying Party shall be entitled, at its election, to assume or participate in the defense of such Claim. Counsel to the Indemnifying Party shall be reasonably acceptable to the Indemnified Party. In any case in which the Indemnifying Party assumes the defense of the Claim, the Indemnifying Party shall give the Indemnified Party ten (10) calendar days notice prior to executing any settlement agreement and the Indemnified Party shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Party shall assume control of the defense of such Claim and the liability of Indemnifying Party with respect to such Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
18.4.2 The Indemnified Party shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Party related to the defense of any Claim, the defense of which has been assumed by the Indemnifying Party pursuant to Section 18.4.1 of this Agreement, but the Indemnified Party shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that all decisions of the Indemnifying Party shall be final and that Indemnified Party shall cooperate with the Indemnifying Party in all respects in the defense of the Claim, including refraining from taking any position adverse to the Indemnifying Party.
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18.4.3 If the Indemnifying Party fails to give notice of the assumption of the defense of any Claim within a reasonable time period not to exceed forty-five (45) days after receipt of notice thereof from the Indemnified Party, the Indemnifying Party shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Party may, at its option, continue to defend such Claim and, in such event, the Indemnifying Party shall indemnify the Indemnified Party for all reasonable fees and expenses in connection therewith. The Indemnifying Party shall be entitled to participate at its own expense and with its own counsel in the defense of any Claim the defense of which it does not assume. Prior to effectuating any settlement of such Claim, the Indemnified Party shall furnish the Indemnifying Party with written notice of any proposed settlement in sufficient time to allow the Indemnifying Party to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Party shall be permitted to effect such settlement unless the Indemnifying Party (a) reimburses the Indemnified Party in accordance with the terms of this Section 18 for all reasonable fees and expenses incurred by the Indemnified Party in connection with such Claim; (b) assumes the defense of such Claim; and (c) takes such other actions as the Indemnified Party may reasonably request as assurance of the Indemnifying Party’s ability to fulfill its obligations under this Section 18 in connection with such Claim.
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19.4 Time of the Essence. Time is of the essence of this Agreement.
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(a) as may be required by law, including without limitation disclosure required under Freedom of Information Act (“FOIA”) request, securities laws, or by the Securities and Exchange Commission, or by the rules of any stock exchange, or in connection with any filing or registration;
(b) to such attorneys, accountants, present or prospective sources of financing, partners, directors, officers, employees and representatives of either Party or of such Party’s advisors who need to know such information for the purpose of evaluating and consummating the transaction, including the financing of the transaction;
(c) to the extent that such information is a matter of public record; and
(d) Buyer may issue a press release (the “Press Release”) upon full execution of this Agreement by all parties announcing the transactions proposed herein including the purchase price provided that the Press Release may be reviewed by Sellers in writing prior to its release, and Buyer shall not issue the Press Release without incorporation of Sellers’ reasonable comments thereto; or as may be permitted specifically by the terms of this Agreement.
[Signature Page Follows]
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Signature Page to
Purchase Agreement
SELLERS: | XXXXX-TWO, L.L.C., | |||
an Oklahoma limited liability company | ||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Its: | Manager | |||
XXXXX-SIX, L.L.C., | ||||
an Oklahoma limited liability company | ||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Its: | Manager | |||
BUYER: | GMR OKLAHOMA CITY, LLC, | |||
a Delaware limited liability company | ||||
By: | Global Medical REIT, LP, | |||
a Maryland limited partnership | ||||
By: | Global Medical REIT Inc., | |||
a Maryland corporation | ||||
By: | /s/ Xxxxxxx Xxxxx | |||
Name: Xxxxxxx Xxxxx | ||||
Its: Authorized Signatory |
S-1 |
CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (i) accept the foregoing Agreement, (ii) be Escrow Agent under said Agreement and (iii) be bound by said Agreement in the performance of its duties as Escrow Agent; provided, however, the undersigned shall have no obligations, liability or responsibility under (i) this Consent or otherwise unless and until said Agreement, fully signed by the parties, has been delivered to the undersigned or (ii) any amendment to said Agreement unless and until the same shall be accepted by the undersigned in writing.
DATED: January __, 2017 | AMERICAN EAGLE TITLE INSURANCE COMPANY | |
By: | ||
Name: | ||
Its: |
S-2 |
List of Exhibits
Exhibit “A” Description of Land
Exhibit “B” List of Leases
Exhibit “C” List of Contracts
Exhibit “D” Form of New Master Lease
Exhibit “E” Form of Deed
Exhibit “F” Form of Xxxx of Sale
Exhibit “G” Form of Assignment and Assumption of Leases, Contracts and Security Deposits
Exhibit “H” Form of Assignment of Intangible Property
Exhibit “I” Intentionally Deleted
Exhibit “J” Form of Non-Foreign Affidavit
Exhibit “K” Form of Certificate of Representations and Warranties
Exhibit “L” Property Information
Exhibit “M” Post-Closing Escrow Agreement
Exhibit “N” Form of Tenant Estoppel Certificate
Exhibit “O” Form of Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT A
Description of the Land
Exhibit A-1 |
EXHIBIT B
List of Leases
1. | Amended and Restated Building Lease dated as of September 1, 2014, by and between Xxxxx-Two, L.L.C., an Oklahoma limited liability company, as landlord, and Oklahoma Center for Orthopedic & Multi-Specialty Surgery, LLC, an Oklahoma limited liability company |
2. | Lease Agreement dated as of August 28, 2006, by and between TC Concord Place I, Inc., a Delaware corporation (“TC Concord”), as landlord, and Specialists Surgery Center, L.L.C., an Oklahoma limited liability company (“SSC”), as tenant; as amended by a First Amendment to Lease Agreement dated as of November 12, 2007, by and between TC Concord, as landlord, and SSC, as tenant; as assigned to and assumed by Xxxxx-Six, L.L.C., an Oklahoma limited liability company (“Xxxxx-Six”) pursuant to an Assignment and Assumption of Lease dated as of July 14, 2008 by and between TC Concord, as assignor, and Xxxxx-Six, as assignee; as assigned by operation of law to Oklahoma Center for Orthopaedic & Multi-Specialty Surgery, LLC, an Oklahoma limited liability company (“OCOM”) as a result of the merger of SSC with and into OCOM effective as of July 1, 2009. |
Exhibit B-1 |
EXHIBIT C
List of Contracts
NONE
Exhibit C-1 |
EXHIBIT D
FORM OF NEW MASTER LEASE
[See attached]
Exhibit D-1 |
EXHIBIT “E”
FORM OF DEED
After recording, return to: | |
SPECIAL WARRANTY DEED
[___________________________] (“Grantor”), for valuable consideration, the receipt of which is acknowledged, does hereby grant, bargain, sell, and convey unto [____________________________________] (“Grantee”), whose mailing address is [_____________________________],the real estate described on Exhibit A, together with all the improvements and appurtenances (the “Property”), and warrants the title to the Property to be free, clear, and discharged of and from all former grants, claims, charges, taxes, judgments, mortgages, and other liens or encumbrances of any nature granted by, through, or under Grantor, but not otherwise, and further subject to, and excepting and excluding from such warranty, all interests in oil, gas, casinghead gas, distillate, coal, metallic ores, and other minerals therein, thereon, or thereunder previously reserved or conveyed, and those matters set forth on Exhibit B.
To have and to hold the Property unto Grantee, and Grantee’s successors and assigns forever.
Executed as of the ____ day of ___________________, 2017.
[____________________________] | |||
By: | |||
Name: | |||
Title: |
STATE OF OKLAHOMA | ) | |
) | ss: | |
COUNTY OF OKLAHOMA | ) |
This instrument was acknowledged before me on __________________, 2017, by __________________________, as Manager of ______________________, an Oklahoma limited liability company.
(Seal) | |
Notary Public |
My Commission Expires: |
Commission # |
ATTACH:
Exhibit A Real Property Description
Exhibit B Permitted Exceptions
Exhibit E-1 |
EXHIBIT “F”
FORM OF XXXX OF SALE
[____________________ LLC, an Oklahoma limited liability company (“Seller”), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby grants, bargains, sells, transfers and delivers to [________________], a [______________] (“Buyer”), effective as of __________________, 2017 (the “Conveyance Date”), all of the fixtures, equipment, furniture, furnishings, appliances, supplies and other personal property of every nature and description attached or pertaining to, or otherwise used in connection with the real property described on Exhibit A (the “Real Property”) attached hereto and located within the Real Property (collectively, the “Personal Property”), but specifically excluding from the Personal Property any accounting software or related items, all property leased by Seller or owned by tenants or others, if any, to have and to hold the Personal Property unto Buyer, its successors and assigns, forever.
Seller grants, bargains, sells, transfers and delivers the Personal Property in its “AS IS” condition, WITH ALL FAULTS, IF ANY, and makes no representations or warranties, direct or indirect, oral or written, express or implied, as to title, encumbrances and liens, merchantability, condition or fitness for a particular purpose or any other warranty of any kind, all of which representations and warranties are expressly hereby disclaimed and denied.
[Include in Xxxxx-Two Xxxx of Sale: Buyer, as master landlord, and Seller, as master tenant, are parties to that certain Master Lease Agreement dated as of _____________________ ____, 2017 (the “Master Lease”), wherein Buyer has leased the Real Property and the Personal Property back to Seller for a period of time beginning on the Conveyance Date and ending on February 28, 2022, on the terms and conditions set forth in the Master Lease.]
Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement.
[Signatures appear on following page]
Exhibit F-1 |
Signature Page to
Xxxx of Sale
Executed this ____ day of __________ 2017.
SELLER: | , | |||
a | ||||
By: | ||||
Name: | ||||
Its: | ||||
BUYER: | , | |||
a | ||||
By: | ||||
Name: | ||||
Its: |
ATTACH:
Exhibit A Real Property Description
Exhibit F-2 |
EXHIBIT “G”
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES, CONTRACTS AND SECURITY DEPOSITS
DATE: | ____________________, 20__ |
ASSIGNOR: | _________________________, a ___________________ |
ASSIGNEE: | _________________________, a ___________________ |
RECITALS:
WHEREAS, Assignor and Assignee have entered into that certain Purchase and Sale Agreement dated as of _________________ __, 20__ (the “Purchase Agreement”), wherein Assignor agreed to sell and Assignee agreed to buy certain real property described in Exhibit A attached hereto and the improvements located thereon (the “Property”); and
1. Assignment. Assignor conveys and assigns to Assignee all of Assignor’s right, title and interest in and to the Leases and the Contracts, together with the right to receive any and all sums and proceeds arising out of said Leases and Contracts, from and after [the date of conveyance of the Property by Assignor to Assignee (the “Conveyance Date”)] [the Master Lease Termination Date].
2. Assumption. Assignee assumes and agrees to be bound by all of Assignor’s liabilities and obligations pursuant to the Leases and the Contracts, if any, and agrees to perform and observe all of the covenants and conditions contained in the Leases and the Contracts, from and after the [Conveyance Date] [Master Lease Termination Date].
Exhibit G-1 |
3. Indemnification. Assignee covenants and agrees to indemnify and hold harmless Assignor for, from and against any actions, suits, proceedings or claims, and all costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred in connection therewith, arising out of any breach of any of the Leases or the Contracts by Assignee to the extent occurring from and after the [Conveyance Date] [Master Lease Termination Date]. Assignor covenants and agrees to indemnify and hold harmless Assignee for, from and against any actions, suits, proceedings or claims, and all costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred in connection therewith, arising out of any breach of any of the Leases or the Contracts by Assignor to the extent occurring prior to the [Conveyance Date] [Master Lease Termination Date].
4. Binding Effect. This Assignment shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns.
5. Construction; Definitions. This Assignment shall be construed according to Oklahoma law, without regard to its conflicts of laws principles. Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement.
6. Counterparts. This Assignment may be executed in counterparts, which taken together shall constitute one original instrument.
DATED as of the day and year first above written.
[Signatures Appear on Following Page]
Exhibit G-2 |
Signature Page to
Assignment and Assumption of Leases,
Contracts and Security Deposits
ASSIGNOR: | , | |||
a | ||||
By: | ||||
Name: | ||||
Its: | ||||
ASSIGNEE: | , | |||
a | ||||
By: | ||||
Name: | ||||
Its: |
ATTACH:
Exhibit A - Property Description
Exhibit B - Lease
Exhibit B – Contracts
Exhibit G-3 |
EXHIBIT “H”
ASSIGNMENT OF INTANGIBLE PROPERTY
DATE: | ____________________, 20__ |
ASSIGNOR: | _________________________, a ___________________ |
ASSIGNEE: | _________________________, a ___________________ |
RECITALS:
A. Assignor presently owns the real property described in Exhibit A to this Assignment and the improvements and personal property located thereon (the “Property”).
B. Assignor and Assignee have entered into that certain Purchase and Sale Agreement dated as of ______________, 2017 (the “Purchase Agreement”), wherein Assignor agreed to sell and Assignee agreed to buy the Property.
C. Assignor desires to sell the Property to Assignee, and in connection therewith, Assignor desires to assign to Assignee and Assignee desires to acquire Assignor’s interest, if any, in and to the following described rights, interests and property inuring to the benefit of Assignor and relating to the Property.
D. [Include in Xxxxx-Two assignment: Assignor and Assignee are parties to that certain Master Lease Agreement dated as of _____________________ ____, 2017 (the “Master Lease”), wherein Assignee has leased the Property back to Assignor for a period of time beginning on the Conveyance Date (as defined below) and ending on February 28, 2022, unless earlier terminated (such date, the “Master Lease Termination Date”).]
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby acknowledged, Assignor agrees as follows:
1. Assignment. Effective as of the [date of conveyance of the Property by Assignor to Assignee (the “Conveyance Date”)] [Master Lease Termination Date], Assignor assigns, transfers, sets over, and conveys to Assignee, to the extent the same are assignable, all of Assignor’s right, title, and interest, if any, in and to (i) any warranties and/or guaranties, express or implied, from contractors, builders, manufacturers, and/or suppliers inuring to the benefit of Assignor and relating to the Property, (ii) any licenses, permits and approvals relating to the Property, (iii) any service marks, logos and trade names, (iv) all plans, drawings and specifications and (v) any development rights. [Include in Xxxxx-Two assignment: Assignee acknowledges and agrees that it shall have no development rights with respect the Property from and after the date of conveyance of the Property by Assignor to Assignee (the “Conveyance Date”); however, Assignee shall retain the right to use the items listed in subparagraphs (i)-(iv) of this paragraph 1 in performance of its obligations under the Master Lease from the Conveyance Date until the Master Lease Termination Date.]
Exhibit H-1 |
2. Binding Effect. This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
3. Construction; Definitions. This Assignment shall be construed according to Oklahoma law, without regard to its conflicts of laws principles. Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement.
DATED as of the day and year first above written.
[Signatures appear on following page]
Exhibit H-2 |
ASSIGNOR: | , | |||
a | ||||
By: | ||||
Name: | ||||
Its: | ||||
ASSIGNEE: | , | |||
a | ||||
By: | ||||
Name: | ||||
Its: |
ATTACH:
Exhibit A - Property Description
Exhibit H-3 |
EXHIBIT “I”
Intentionally Deleted
Exhibit I-1 |
EXHIBIT “J”
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by [____________________ LLC, a __________] limited liability company (“Seller”), the undersigned hereby certifies the following:
1. Seller is not a foreign person, foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
2. Seller’s U.S. taxpayer identification number is __________________; and
3. Seller’s address is ________________________________________________.
The undersigned understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury, the undersigned declares that it has examined this certification and to its knowledge and belief it is true, correct, and complete, and further declares that it has authority to sign this document.
Date: As of ______________, 2017
, | ||||
a | ||||
By: | ||||
Name: | ||||
Its: |
Exhibit J-1 |
EXHIBIT “K”
FORM OF CERTIFICATE OF REPRESENTATIONS AND WARRANTIES
[Letterhead of Party Giving Certificate (Seller or Buyer)]
_______________________, 2017
[Name of Party Receiving Certificate (Seller or Buyer)]
[Address of Party Receiving Certificate]
[City, State]
Ladies and Gentlemen:
The undersigned hereby certifies that all of the representations and warranties made by it in Section ____ of the Purchase and Sale Agreement dated as of __________________, 2017 (the “Purchase Agreement”) between the undersigned, as [insert Seller or Buyer], and you, as [insert Seller or Buyer], are true and correct as of the date hereof in all material respects, except as follows: [insert “none” or exceptions], which shall survive the date hereof for the period and subject to the limitations provided in the Purchase Agreement, and thereafter shall be null and void. The undersigned further ratifies and confirms the continued applicability of, and the understandings and agreements of the undersigned set forth in, such Section ____.
Very truly yours, | ||||
, | ||||
a | ||||
By: | ||||
Name: | ||||
Its: |
Exhibit K-1 |
EXHIBIT “N”
FORM OF
TENANT ESTOPPEL CERTIFICATE
From: | _____________________________________________ |
_____________________________________________ | |
_____________________________________________ | |
(“Tenant”) | |
To: | _____________________________________________ |
_____________________________________________ | |
_____________________________________________ | |
(“Buyer”) | |
_____________________________________________ | |
_____________________________________________ | |
(“Landlord”) | |
_____________________________________________ | |
_____________________________________________ | |
(“Buyer’s Lender”) | |
Lease: | Lease dated _____________, ______, between |
___________________________________________, a | |
_____________________________________________, | |
and ________________________________________, a | |
_____________________________________________, | |
as amended, modified or supplemented by __________ | |
________________________________ [list all amendments, | |
addenda, letter agreements and the like] (as so amended, | |
modified and supplemented, the “Lease”). | |
Premises: | Suite(s) ______, consisting of a total of ______________ rentable square feet, (the “Premises”) located in the building known as __________________, having an address of ___________, _______, _______(the “Building”). |
Tenant hereby certifies to Landlord and Buyer as follows:
1. Tenant is the current Tenant under the Lease. The Lease is in full force and effect and is the only lease, agreement or understanding between Landlord and Tenant affecting the Premises and any rights to parking. The Lease has not been modified, altered or amended, except as follows: [commencement agreements, modifications, assignments or amendments to the Lease and all letter agreements or, if none, state “None”.]
Exhibit N–1 |
2. The initial term of the Lease commenced on _________________, 20__, and the current term will expire on _________________________, _____. The Tenant has an outstanding option to renew the Lease (which has not been waived or lapsed) for ________________________ (_____) additional __________________ following the expiration date of the current term. Tenant has accepted and is presently occupying the Premises.
3. The base rent under the Lease is currently $______ per month. . Tenant has fully paid all rent and other sums payable under the Lease on or before the date of this Certificate and Tenant has not paid any rent more than one month in advance.
4. Tenant is not in default under any of the provisions of the Lease, and no event has occurred and no circumstance exists which, with the passage of time or the giving of notice by Landlord, or both, would constitute such a default.
5. To Tenant’s knowledge, Landlord is not in default under any of the provisions of the Lease, and no event has occurred and no circumstance exists which, with the passage of time or the giving of notice by Tenant, or both, would constitute such a default.
6. All construction to be performed and the improvements to be installed by Landlord on the Premises as a condition to Tenant’s acceptance of the Premises, if any, have been completed and fully accepted by Tenant. All amounts to be paid by Landlord to Tenant for work performed by Tenant pursuant to any tenant improvement allowance have been paid in full. Any and all other leasing incentives, amounts which the Lease expressly requires to be paid by Landlord to Tenant or amounts to be credited against Tenant rent due under the Lease for any reason (exclusive of operating expense adjustments as may be applicable under the Lease) have been fully paid or credited as applicable, and no such amounts remain outstanding or remain to be credited.
7. As of the date of this Certificate, Tenant has no defenses, offsets or credits against the payment of rent and other sums due or to become due under the Lease or against the performance of any other of Tenant’s obligations under the Lease.
8. Tenant has paid to Landlord a security deposit in the amount of $ ___________ [alternatively: Landlord is holding a letter of credit to secure Tenant’s obligation under the Lease is the amount of $______________]. [The obligations of Tenant are guaranteed by _________________, in accordance with the terms of the guaranty dated _____________.]
9. Tenant has not subleased, assigned, pledged, hypothecated, or otherwise encumbered all or any portion of its interest in the Lease.
10. Tenant has no existing right of refusal, right of offer, or expansion rights, except _____________ (all other rights, if any, having been waived or deemed waived). Tenant has no purchase option or other right to purchase the Premises or the Building.
11. There are no actions, voluntary or involuntary, pending against the Tenant under the bankruptcy laws of the United States or any state thereof.
Exhibit N–2 |
12. Tenant understands that this Certificate is required in connection with Buyer’s acquisition of the Building, and Tenant agrees that Landlord, Buyer, Buyer’s Lender and their respective assigns (including any parties providing financing for the Building) will, and shall be entitled to, rely on the truth of this Certificate. Tenant agrees that such parties will, and shall be entitled to, rely on the representations in this Certificate as being true and correct and continuing to be made, unless Tenant notifies Landlord and Buyer of a change in this Certificate prior to the closing.
13. The party executing this document on behalf of Tenant represents that he/she has been authorized to do so on behalf of Tenant.
EXECUTED on this _____ day of __________________, 2017.
TENANT | |
__________________________________, | |
a ______________________ |
By: | |||
Name: | |||
Title: |
Exhibit N–3 |
EXHIBIT “O”
FORM OF
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
(Master Lease)
THIS AGREEMENT made this __ day of __________, 2017, by and among GMR OKLAHOMA CITY, LLC, a Delaware limited liability company (“Master Lessor”) and XXXXX-TWO, L.L.C., an Oklahoma limited liability company (“Landlord”), and OKLAHOMA CENTER FOR ORTHOPAEDIC & MULTI-SPECIALTY SURGERY, LLC, an Oklahoma limited liability company ( “Tenant”).
1. Master Lessor, Tenant and Landlord do hereby covenant and agree that the Lease with all rights, options, liens and charges created thereby, is and shall continue to be subject and subordinate in all respects to the Master Lease and to any amendments and modifications thereof, including any increases therein or supplements thereof.
2. Master Lessor does hereby agree with Tenant that, so long as Tenant complies with and performs its obligations under the Lease, (a) Master Lessor will take no action which will interfere with or disturb the right of Tenant to the use, possession and enjoyment of the Premises in accordance with the Lease, and (b) in the event that the Master Lease should terminate before the Lease, Master Lessor shall recognize Tenant as the tenant of the Premises for the remainder of the term of the Lease in accordance with the provisions thereof and the Lease shall continue in effect as a direct lease between Master Lessor, as landlord, and Tenant, as the tenant of the Premises, provided, that Master Lessor shall not be liable for any act or omission of Landlord or any other prior landlord, or subject to any offsets, counterclaims or defenses which Tenant might have against Landlord or any other prior landlord, or required to construct any improvements which were required to be constructed by Landlord or any other prior landlord, nor shall Master Lessor be bound by any rent or additional rent which Tenant might have paid for more than the current month to Landlord or any other prior landlord or be liable for the return of any security deposit theretofore paid by Tenant, nor shall Master Lessor be bound by any amendment or modification of the Lease made without Master Lessor’s consent.
Exhibit O – Page 1 |
3. Tenant does hereby agree with Master Lessor that in the event that the Master Lease should terminate before the Lease, then the Lease shall continue in effect as a direct lease between Master Lessor, as landlord, and Tenant, as the tenant of the Premises, and Tenant shall attorn to and recognize Master Lessor as the landlord under the Lease for the remainder of the term thereof, and Tenant shall perform and observe its obligations thereunder. Tenant further covenants and agrees to execute and deliver upon request of Master Lessor, or its assigns, an appropriate agreement of attornment to any subsequent titleholder of the Premises.
4. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, successors-in-title and assigns. When used herein, the term “landlord” refers to Landlord and to any successor to the interest of Landlord under the Lease.
5. The certifications and agreements contained herein are made by Tenant with the knowledge that the Master Lessor would not enter into the Master Lease except in reliance upon such certifications and agreements by Tenant.
6. As between Landlord and Tenant, Landlord and Tenant covenant and agree that nothing herein contained nor anything done pursuant to the provisions hereof shall be deemed or construed to modify the Lease.
[Remainder of page intentionally blank]
Exhibit O – Page 2 |
Signature page to
Subordination, Non-Disturbance and
Attornment Agreement
MASTER LESSOR: | ||||||
GMR OKLAHOMA CITY, LLC, | ||||||
a Delaware limited liability company | ||||||
By: |
Global Medical REIT, LP, | |||||
a Maryland limited partnership | ||||||
By: | ||||||
a Maryland corporation | ||||||
By: | ||||||
Name: |
||||||
Its: |
Authorized Signatory |
LANDLORD: | |||
XXXXX-TWO, L.L.C., | |||
an Oklahoma limited liability company | |||
By: | |||
Name: | |||
Title: | |||
TENANT: | |||
OKLAHOMA CENTER FOR ORTHOPAEDIC & MULTI-SPECIALTY SURGERY, LLC, | |||
an Oklahoma limited liability company | |||
By: | |||
Name: | |||
Title: |
Exhibit O – Page 3 |