AGREEMENT FOR PURCHASE AND SALE
among
XX XXXXXXXXX PARTNERS, LLC
HEALTHAMERICA REALTY GROUP, LLC
and
UNIVERSAL HEALTH REALTY INCOME TRUST
October 26, 1999
Table of Contents
Page
ARTICLE 1 AGREEMENT FOR PURCHASE AND SALE.......................1
ARTICLE 2 PURCHASE PRICE........................................2
ARTICLE 3 PHYSICAL CONDITION OF PROJECT.........................2
ARTICLE 4 TITLE TO PROPERTY.....................................2
ARTICLE 5 TITLE INSURANCE.......................................3
ARTICLE 6 CLOSING...............................................4
ARTICLE 7 DOCUMENTS REQUIRED AT CLOSING.........................5
ARTICLE 8 APPORTIONMENTS AND ADJUSTMENTS........................7
ARTICLE 9 REMEDIES..............................................8
ARTICLE 10 BROKERS...............................................9
ARTICLE 11 NOTICES...............................................9
ARTICLE 12 ASSIGNMENT...........................................10
ARTICLE 13 REPRESENTATIONS......................................11
ARTICLE 14 CONDITIONS PRECEDENT TO CLOSING......................16
ARTICLE 15 POST-CLOSING OBLIGATIONS.............................17
ARTICLE 16 MISCELLANEOUS........................................18
ARTICLE 17 SECURITY DEPOSIT.....................................20
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT (this "Agreement"), made as of the 26th day of October,
1999 by and among XX XXXXXXXXX PARTNERS, LLC, a Georgia limited liability
company having an office at 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx 00, Xxxxxxx,
Xxxxxxx 00000 ("Seller"), HEALTHAMERICA REALTY GROUP, LLC, a Georgia limited
liability company ("HRG"), and UNIVERSAL HEALTH REALTY INCOME TRUST, having an
office at 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
("Purchaser");
W I T N E S S E T H:
ARTICLE 1
AGREEMENT FOR PURCHASE AND SALE
Seller agrees to sell and cause to be conveyed to Purchaser, and
Purchaser agrees to purchase, the following property (collectively, the
"Project"):
(a) The real property located in the City of Atlanta, State of
Georgia, and more particularly described on Exhibit A annexed hereto (the
"Land"), together with all existing improvements thereon, consisting of an eight
story medical office building containing 71.903 rentable square feet, an
attached three and one-half story, 194 car parking space, parking garage and an
adjoining 76 car parking space, .73 acre surface area parking lot, known
collectively as the "Sheffield Medical Building", and located at 0000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx (collectively, together with the Land, called the
"Property");
(b) All of Seller's right, title and interest in and to all
Tenant Leases (as hereinafter defined) affecting the Property;
(c) All of Seller's right, title and interest in and to all
tangible and intangible personal property now or hereafter owned or held by
Seller in connection with its ownership of the Project, including but not
limited to any leases, contracts, leasing materials and forms, keys, records and
correspondence relating to tenants, security deposits, prepaid rentals,
telephone exchange numbers and the use of the name "Sheffield Medical Building";
(d) All of Seller's right, title and interest in and to all
easements, licenses, appurtenances, rights, privileges and hereditaments
belonging or appertaining to the Project; and
(e) All fixtures and articles of personal property attached or
appurtenant to or used in connection with the Project which are owned by Seller
and located at, in or on the Property, including, without limiting the
generality of the foregoing, any and all equipment, machinery, computer hardware
and software, plumbing, heating and lighting fixtures,
mail boxes, surveillance and security systems, watering systems, tools, and
maintenance equipment and supplies owned by Seller and located at, in or on the
Property.
ARTICLE 2
PURCHASE PRICE
The purchase price for the Project shall be ELEVEN MILLION FIVE HUNDRED
THOUSAND DOLLARS ($11,500,000) (the "Purchase Price"), plus or minus the
adjustments provided for in this Agreement (the "Closing Payment"), to be paid
to Seller in immediately available federal funds in such manner, place and
account as Seller may reasonably request, at or prior to the Closing (as
hereinafter defined).
ARTICLE 3
PHYSICAL CONDITION OF PROJECT
Purchaser agrees to purchase the Project in its "AS IS" condition on the Closing
Date, subject to, and in reliance upon, Seller's representations and warranties
as set forth in this Agreement. Purchaser has not relied upon, and Seller is not
liable or bound in any manner by, any verbal or written statements,
representations, real estate brokers' "set-ups" or other information pertaining
to the Project furnished by either Seller or HRG or by any real estate broker,
agent, employee, servant or other persons unless and except to the extent that
any of the same are expressly set forth in this Agreement.
ARTICLE 4
TITLE TO PROPERTY
4.1 At the Closing, Seller shall deliver to Purchaser good, marketable
and indefeasible fee simple title to the Property, subject only to the Permitted
Encumbrances (as hereinafter defined).
4.2 Purchaser agrees to accept good, marketable and indefeasible fee
simple title to the Property, subject to the following matters (collectively,
the "Permitted Encumbrances"):
(a) The leases and tenancies affecting the Property on the
date hereof, as set forth and described in Exhibit B annexed
hereto (the "Tenant Leases");
(b) Liens securing payment of all ad valorem, intangible and
other real and personal property taxes, school taxes, and
water and sewer charges against the Property or the personal
property covered by this Agreement for the tax year in which
the Closing Date occurs;
(c) Such other exceptions to title as shall have been approved
in writing by Purchaser on or prior to the Closing Date,
including those (if any) set forth and described on Exhibit C
annexed hereto; provided, however, that, except as provided in
clause (d) below, if there is any lien or encumbrance on the
Property other than as identified in clauses (a) and (b)
above, Purchaser's sole remedy shall be to accept title to the
Property subject thereto (thereby
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making such encumbrance a Permitted Encumbrance), or to
terminate this Agreement and require the Seller to return the
Security Deposit, whereupon the obligations of the parties
under this Agreement shall end.
(d) Any lien or deed to secure debt on the Property which was
incurred or caused by Seller and which can be discharged by
the payment of money shall either be paid by Seller at or
before closing, or Purchaser may pay a portion of the Purchase
Price due Seller to pay off and discharge said lien or deed to
secure debt.
4.3 Property taxes for the year of closing shall be prorated between
Seller and Purchaser at closing based on their relative periods of ownership of
the Property during the year. If the Property is subject to any retroactive
reassessment or if there is any change in property taxes for the year of
closing, then upon the request of either such party, the property taxes for the
year of closing shall re re-prorated based on new or final tax bills, and the
party who paid or was debited with less than its share based on final proration
shall promptly pay the other any difference due. Any increase in property taxes
for 1998 or prior years shall be solely the responsibility of Seller. The terms
and provisions of this Section 4.3 shall survive the Closing
ARTICLE 5
TITLE INSURANCE
5.1 By the Closing Date, Purchaser shall have obtained a commitment
(the "Title Commitment") from Chicago Title Insurance Company or any other
nationally recognized title insurance company selected by, or acceptable to,
Purchaser (the "Title Company") to issue an owner's policy of title insurance on
the Property in favor of Purchaser in standard ALTA form (the "Title Policy"),
free and clear of any objections, except for Permitted Encumbrances.
5.2 Notwithstanding the foregoing, the existence of liens or
encumbrances other than the Permitted Encumbrances or those which are permitted
by this Agreement shall be deemed to be Permitted Encumbrances if the Title
Company will insure Purchaser's title free and clear of the matter or will
insure against the enforcement of such matter out of the Property, on the
condition that Purchaser's counsel shall agree to accept title with such
insurance. Any unpaid liens for real estate and personal property taxes for
years prior to the fiscal year in which the Closing Date occurs and any other
matter which Seller is obligated to pay and discharge at the Closing shall not
be deemed objections to title, but the amount thereof chargeable to Seller, plus
interest and penalties thereon, if any, shall be shown as chargeable to Seller
in Purchaser's and Seller's settlement statement on the Closing Date and paid to
the Title Company for the payment of such matters.
5.3 Purchaser shall pay any costs for obtaining the Title Commitment
and the title insurance premium for obtaining standard insurance coverage under
the Title Policy in a minimum amount equal to the Purchase Price. Purchaser
shall also pay the cost of a current, as-built boundary survey of the Land
prepared by a reputable and established surveyor in the Atlanta area, to be
obtained by Purchaser by the Closing Date (the "Survey"), which Survey shall
disclose no encumbrances on title to, or ownership of, the Property, except for
Permitted
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Encumbrances. Seller shall pay the Georgia Real Property Transfer tax on the
deed. Purchaser shall pay all recording fees.
5.4 If and to the extent that such materials are in the possession or
control of Seller, Seller shall deliver or cause to be delivered to Purchaser on
the Closing Date the following additional documents:
(a) all architectural drawings and plans and specifications
for the Improvements, including an "as built" set of plans, if available;
(b) a copy of the paid real estate tax xxxx for the most
recent period for which real estate taxes have been due and payable;
(c) true and correct copies of all equipment leases, service,
maintenance, union and management contracts, as well as all other documents or
agreements relating to or affecting the Project;
(d) true and complete copies of any engineering and asbestos
reports with respect to the Property;
(e) true and correct copies of operating statements for the
Property for the period commencing with the date of Seller's occupancy through
September 30, 1999 as well as escalation statements for operations, taxes,
electric, utilities and other expenses relating to the Property during the same
period;
(f) true and complete copies of any real estate tax
information available to the Seller relating to the Property for the year of
Closing and the previous year as well as a schedule of any tax reduction
proceedings relating to the Property;
(g) a copy of the present 1999 operating budget of the
Property as well as a copy of any projections for future operating budgets
relating to the Property;
(h) true and complete copies of any certificate of occupancy
for the Property as well as a true and complete copy of any other permits
relating to the Project; provided, however, that nothing contained herein shall
require Seller to deliver certificates or permits obtained or required to be
obtained by any tenants of the Property.
ARTICLE 6
CLOSING
6.1 The consummation of the transactions described in this Agreement
(the "Closing") shall occur on November 16, 1999, or such earlier or later date
as to which Seller and Purchaser may mutually agree (the "Closing Date") at
11:00 a.m. at the offices of King & Spalding, Atlanta, Georgia, legal counsel to
the Purchaser, or in such other manner or at such other place as the parties may
agree upon.
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6.2 Upon Purchaser's receipt or delivery of all required documents and
instruments and its payment of the balance of the Purchase Price and other
amounts required herein, Purchaser and Seller shall prepare and sign a closing
statement reflecting the adjustments and payments made and agreements in
connection therewith (the "Closing Statement").
6.3 Notwithstanding anything contained in this Agreement to the
contrary, Purchaser and Seller acknowledge that the requirements for the Closing
set forth in this Agreement may be supplemented by a written settlement
statement executed by both Seller and Purchaser.
ARTICLE 7
DOCUMENTS REQUIRED AT CLOSING
7.1 At the Closing, Seller shall execute and deliver the following to
Purchaser:
(a) a Limited Warranty Deed to the Property, based on the
legal description thereof set forth on Exhibit A attached hereto, to be
substantially in the form annexed hereto as Exhibit D (the "Limited Warranty
Deed"), and a Quitclaim Deed with respect to (i) the sewer easement created by
that certain Easement from Piedmont Hospital, Inc., a Georgia corporation, to
Rockfield, Inc., a Georgia corporation, dated January 18, 1957, filed for record
January 22, 1957, and recorded in Deed Book 3188, page 407 et seq. in the
records of Xxxxxx County, Georgia, and (ii) the property description derived
from the Survey, to be substantially in the form of Exhibit O attached hereto
(the "Quitclaim Deed"; the Limited Warranty Deed and the Quitclaim Deed
hereinafter collectively called the "Deed"), pursuant to which Seller shall
convey the Property to Purchaser;
(b) a Xxxx of Sale, to be substantially in the form annexed
hereto as Exhibit E, pursuant to which Seller shall assign and convey to
Purchaser all personal property covered by this Agreement, with any applicable
sales tax to be paid by Seller;
(c) an Assignment and Assumption of the Tenant Leases, to be
substantially in the form annexed hereto as Exhibit F, pursuant to which Seller
shall assign to Purchaser its interest in (i) all Tenant Leases and (ii) all
guaranties relating thereto;
(d) an Assignment and Assumption of Warranties and Service
Contracts, to be substantially in the form annexed hereto as Exhibit G, pursuant
to which Seller shall assign to Purchaser its interest in (i) all service
contracts relating to the Property and (ii) all transferable guaranties and
warranties relating to the Property;
(e) a written notice of the acquisition of the Property by
Purchaser, originally executed by Seller and Purchaser, which Purchaser or HRG
may transmit, but upon their failure to do so, Seller may transmit, to all
tenants and to other parties affected by the sale and purchase of the Property
(the "Tenant Notices"). Such Tenant Notices shall be prepared by HRG in
substantially the form annexed hereto as Exhibit I, and shall inform the
addressees of the sale and transfer of the Property to Purchaser and contain
appropriate instructions relating to the payment of future rentals, the giving
of future notices, the naming of Purchaser as an additional
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insured on each tenant's insurance policies and other matters reasonably
required by Purchaser. The Tenant Notices shall specify that unapplied security
deposit under the tenant leases have been delivered to Purchaser;
(f) a non-foreign status affidavit for Seller complying with
the requirements of Internal Revenue Code Section 1445(f)(3) and the regulations
promulgated thereunder in substantially the form annexed hereto as Exhibit J;
(g) all costs and fees required to be paid by Seller pursuant
to Articles 4 or 8 hereof;
(h) a mechanics' lien and general title affidavit, verifying
it to be the fact that, as of the Closing Date, there are no unpaid bills for
work, labor, service or materials furnished to the real property upon the
request or order of Seller which may be made the basis of a lien, and that
Seller is in possession of the Project, subject only to the rights of tenants in
possession under the Tenant Leases, to be substantially in the form annexed
hereto as Exhibit N and otherwise acceptable to the Title Company;
(i) estoppel certificates from all tenants under the Tenant
Leases, as provided in Article 14 hereof; provided, however, that if less than
all tenants execute estoppel certificates, Purchaser's sole remedy shall be to
close and accept the Property without the estoppels (in which event, however,
Seller shall certify under oath, as to Seller's best knowledge, of the status of
each affected Tenant Lease) or terminate this Agreement, whereupon Seller shall
return the Security Deposit and neither party shall have any further obligations
under this Agreement.
(j) such other documents and instruments as may be reasonably
required by the Title Company in order to issue the Title Policy or as Purchaser
or its legal counsel may reasonably request from Seller in order to consummate
the transactions described in this Agreement in accordance with the terms
hereof; provided, however, that such other documents and instruments do not
impose any material expense or risk on Seller.
7.2 At the Closing, Purchaser shall execute, where appropriate, and
deliver the following to Seller:
(a) the Closing Payment;
(b) the Assignment and Assumption of Tenant Leases;
(c) the Assignment and Assumption of Warranties and Service
Agreements;
(d) such other documents and instruments as Seller or its
legal counsel may reasonably request in order to consummate the transactions
described in this Agreement in accordance with the terms hereof; provided,
however, that such other documents and instruments do not impose any material
expense or risk on Purchaser.
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7.3 If at any time after the Closing it becomes apparent to either
party hereto that any necessary closing documents were either not delivered or
improperly executed or that any closing adjustments were improperly calculated,
the parties shall act in good faith and take all such steps including the
execution or re-execution of documents and the payment of monies as may be
reasonably necessary to rectify such errors or miscalculations. The provisions
of this Section 7.3 shall survive the Closing for a period of one (1) year.
ARTICLE 8
APPORTIONMENTS AND ADJUSTMENTS
8.1 Except as provided in Section 8.5 below, Seller shall be
responsible for and shall pay all accrued expenses with respect to the Project
accruing up to 11:59 p.m. on the Closing Date and shall be entitled to receive
and retain all revenue from the Project accruing up to the Closing Date.
8.2 On the Closing Date, the following adjustments and apportionments
shall be made in cash as follows:
(a) Rents for the month in which the Closing Date occurs (the
"Closing Month") as and when collected. If past due rents are owing by tenants
for any period prior to the Closing Month (the "Rent Arrearages"), then after
request made by Seller subsequent to the Closing Date, Purchaser shall xxxx all
tenants for such sums, provided, however, that Purchaser shall have no liability
or responsibility for the collection of any such Rent Arrearages. Seller shall
be entitled to those funds received by Purchaser from tenants having Rent
Arrearages after the Closing Date, only where such funds are in payment of such
Rent Arrearages and are excess of amounts then owing or otherwise required to be
paid to Purchaser from such tenants. Notwithstanding the foregoing, for any
"pass-through" expenses which are collected from tenants on the basis of
Seller's estimates of such expenses, promptly following the end of the fiscal
period for which such estimated expenses are allocable, Seller and Purchaser
shall determine the actual expenses allocable to such period and shall adjust
for any difference between the estimated expenses and the actual expenses and
the responsible party promptly shall pay the other the amount of any such
difference.
(b) Real estate taxes, ad valorem taxes, school taxes, annual
assessments and personal property, intangible and use taxes, if any;
(c) Charges under service contracts affecting the Project
which Purchaser has agreed in writing to assume on the Closing Date; and
(d) Water and sewer charges on the basis of the period for
which assessed; provided that if a final xxxx is not available at Closing, a
reasonable estimate will be made based on prior bills and an amount reasonably
estimated to be adequate to pay such charges through the Closing Date shall be
escrowed with the Purchaser pending receipt of final bills.
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8.3 At the Closing, Purchaser will receive a further credit against the
Purchase Price in an amount equal to all existing tenant and/or common area
improvement allowances for any work that is in process in an aggregate amount
equal to the total sums which Seller has contracted to pay the affected tenants
under existing Tenant Leases. The foregoing shall not apply, however, to tenant
improvements scheduled to be made to (or any leasing commission owing in respect
of) Suite 303 (1,344 RSF), for Northwest Nephrology Clinic, and as to such
suite, Purchaser shall assume and pay such costs.
8.4 At the Closing, Purchaser will receive a further credit against the
Purchase Price in an amount equal to all unapplied security deposits (and
interest, if any) payable to tenants under Tenant Leases in effect on the
Closing Date. Upon making such credit, Purchaser will be deemed to have received
all such security deposits and shall be fully responsible for the same as if a
cash amount equal to such security deposits were actually delivered to
Purchaser. During the period prior to the Closing, Seller agrees to obtain
Purchaser's prior written consent, such consent not to be unreasonably withheld,
before applying any security deposit(s), or portions thereof, against any tenant
default pursuant to the terms of the defaulting tenant's lease.
8.5 If the Purchase Price is transmitted by wire transfer pursuant to
Seller's order by 12:00 Noon (EST or EDT as applicable) on the day of closing,
then in making the prorations and adjustments at closing, Purchaser will receive
the benefit of the Rents and the burden of Property expenses for the day of
closing. If transmitted thereafter, Seller will receive the benefit of the Rents
and the burden of Property expenses for the day of closing.
8.6 At the Closing, Purchaser will receive a further credit against the
Purchase Price in the amount of any prepaid rents in respect of the Tenant
Leases.
8.7 At the Closing, a further credit to the Purchase Price shall be
made to fund the "Parking Revenue Escrow Account" described in Section 15.1.
8.8 The provisions of this Article 8 shall survive the closing of title
and the delivery of the Deed.
ARTICLE 9
REMEDIES
9.1 If Purchaser defaults in its obligation to purchase the Project
pursuant to this Agreement, then Seller shall have the right, in addition to any
other remedies available to it at law or in equity, to terminate this Agreement
by giving Purchaser written notice thereof and, upon receipt of such notice,
this Agreement shall wholly cease and terminate, no party to this Agreement
shall have any further claim, agreement, or obligation to any other party to
this Agreement (except for Seller's right to retain the Security Deposit), and
any lien of Purchaser against the Project shall automatically cease, terminate
and be released.
9.2 If the sale contemplated by this Agreement is not consummated
because of Seller's failure to perform its obligations hereunder, Purchaser
shall be entitled, as its exclusive remedies, to elect either (a) to terminate
this Agreement or (b) to enforce specific performance of Seller's obligations
under this Agreement; provided, however, that Seller shall not be required to
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expend any money other than the amounts provided in Article 8, or take any
action other than delivery of the items provided in Article 7, in connection
with such specific performance.
ARTICLE 10
BROKERS
10.1 Purchaser and Seller mutually represent and warrant to each other
that neither they nor any entity related to them have dealt with any broker,
finder or other person or entity who would be entitled to a commission or other
brokerage fee in connection with the transactions described in this Agreement
other than HRG, which entity Seller has agreed to pay the sum of $230,000 at
Closing pursuant to separate agreement, and which Seller shall pay at the
Closing (and provide evidence thereof to Purchaser). HRG only represents Seller
in this transaction and is presently Seller's property manager of the Property.
No commission is due if the sale under this Agreement fails to close for any
reason, including without limitation default of either party, termination as
provided under this Agreement or mutual termination or rescission by Seller and
Purchaser. Purchaser and Seller each agree to indemnify, defend and hold the
other harmless of and from and against any loss, costs, damage or expense
(including reasonable attorneys' fees and court costs) arising out of (i) any
inaccuracy in the representation and warranty contained in the immediately
preceding sentence or (ii) the claims of any broker or finder (or anyone
claiming to be a broker or finder) regarding any services claimed to have been
rendered to the indemnifying party in connection with the transactions
contemplated by this Agreement.
10.2 The provisions of this Article shall survive the closing of title
and the delivery of the Deed and any prior termination of this Agreement for any
reason whatsoever.
ARTICLE 11
NOTICES
Any notice given or required to be given pursuant to any provision of
this Agreement shall be in writing and shall either be personally delivered,
sent by facsimile or sent by a reputable commercial courier service guaranteeing
overnight delivery, and shall be deemed to have been given upon receipt. The
address of the parties for the giving of notices is as follows:
PURCHASER: Universal Health Realty Income Trust
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxx
President
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with a copy to: Universal Health Realty Income Trust
0000 Xxxxxxxx Xxxx, X.X.
7 Piedmont Center; Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Vice President
and a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
SELLER: XX Xxxxxxxxx Partners, LLC
c/o Xxxxxxxx Xxxxxx Company - Atlanta
0000 Xxxxxx Xxxxx Xxxx - Xxxxxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxxxxxx M. Sites, Jr.
Vice President
with a copy to:
Xxxxxxxxx, Xxxxxxx & Xxxxx
1600 Xxxxxxx Building
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Esq.
HRG: HealthAmerica Realty Group, L.L.C.
00 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx
Either party may, by giving notice to the other in the manner set forth
above, change the address to which notices shall be sent to it, provided that
any such change of address shall be effective when received. The attorney for
each party to this Agreement may give notices on behalf of its client with the
same force and effect as if such notice was given directly by such party.
ARTICLE 12
ASSIGNMENT
Purchaser may assign its interest under this Agreement to any affiliate
of Purchaser without Seller's consent. Seller may not assign its interest under
this Agreement.
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ARTICLE 13
REPRESENTATIONS
Seller and Purchaser hereby make the following mutual representations
and warranties to each other, which representations and warranties are
materially true and accurate in every respect as of the date hereof and shall be
materially true and accurate as of the Closing Date and shall survive the
delivery of the Deed and the Closing for one (1) year thereafter:
13.1 Of Seller:
(a) Authority. Seller has the full and unrestricted power and
capacity to enter into and carry out the terms of this Agreement and all other
agreements referred to herein. This Agreement constitutes, and all other
agreements, documents and instruments to be executed by Seller pursuant hereto,
when executed and delivered by Seller, will each constitute a valid and binding
obligation of Seller enforceable in accordance with its terms;
(b) No Defaults. Neither the execution, delivery or
performance of this Agreement or any other agreement contemplated hereby, the
fulfillment of and compliance with the respective terms and provisions hereof or
thereof, nor the consummation of the transactions contemplated hereby or
thereby, will: (i) conflict with, or result in a breach of, any of the terms,
conditions or provisions of, or constitute any default under, any agreement or
instrument to which Seller is a party or is subject; (ii) violate any
restriction to which Seller is a party or is subject; (iii) constitute a
violation of any applicable law, statute, regulation, ordinance, rule, judgment,
decree, writ or order; or (iv) conflict with, or contradict, any right of first
refusal or similar right in respect of the sale of the Property.
(c) No Litigation. There are no actions, suits, claims,
arbitrations, proceedings, orders, judgments or investigations pending or, to
the knowledge of Seller, threatened against or affecting Seller or the Project
or any of the Tenant Leases or which question the validity of this Agreement or
any action taken or to be taken under any of the provisions of this Agreement,
at law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality.
(d) Equipment. Except as otherwise stated in this Section
13.1, Seller has not received any notification in writing from any governmental
agency or authority that the use and operation of the equipment of Seller
constituting part of the Project is not in compliance with applicable laws,
regulations and guidelines, except for prior notifications which have been
corrected.
(e) Assessments. Seller has received no notice and has no
knowledge of any pending improvements, liens or special assessments to be made
against the Project by any governmental authority;
(f) Condemnation. There is no exercise of eminent domain or
condemnation pending, or to Seller's knowledge threatened, against or affecting
the Project (or
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any part thereof), nor does Seller know or have reasonable grounds to know of
any basis for any of same;
(g) Leases. To the best of Seller's knowledge: Seller is not
in default under any Tenant Lease, nor is there in existence any condition or
fact which with notice or lapse of time, or both, would constitute a default
thereunder; Seller (or its management company) is in possession of all tenant
security deposits in the amounts set forth in the Tenant Leases; no such tenants
shall be entitled to any rebates, revenue participations, rent concessions, rent
limitations or free rent or renewal options, except as provided in the Tenant
Leases; no express written commitments have been made to any tenant for repairs
or improvements, by Seller, as landlord, which remain to be completed or paid
for in full (except as provided in Section 7.3 as to Suite 303); the Tenant
Leases constitute the entire agreement between the landlord and tenant
thereunder, and there are no side letters or other agreements between the
Landlord and each of the tenants; all Tenant Leases are the result of bona fide
arm's-length negotiations with persons who are not affiliates of Seller; no
rents due under any of said Tenant Leases have been assigned, hypothecated or
encumbered (excepting therefrom any such hypothecations or encumbrances being
removed at Closing); no rents under any Tenant Leases have been prepaid in
advance of the then current month which are not the subject of a credit under
Section 8.5; and there are no fees or commissions payable to any third person or
entity in regard to the subject property or any of said Tenant Leases (including
any commissions payable upon the exercise of any renewal option under the Tenant
Leases); no tenant under any Tenant Lease has received any financing, or
commitment to extend financing, from Seller in respect of any tenant
improvements or for any other purposes (except as provided in Section 7.3 as to
Suite 303); and Seller will not, hereafter and prior to the Closing Date, modify
any Tenant Lease, accept any termination or surrender of any Tenant Lease or
enter into any agreement extending the term of any Tenant Lease, without the
prior written consent of Purchaser;
(h) Zoning. [INTENTIONALLY OMITTED];
(i) Permits. Except as otherwise disclosed in this Section
13.1, Seller has not received any notification in writing from any governmental
authority that the Property is lacking any permits or licenses necessary for the
operation and occupancy of the Property. No notice, notification, demand,
request for information, citation, summons or order has been received by Seller
and Seller has no knowledge that any complaint has been filed, penalty has been
assessed or investigation or review is pending or threatened by any governmental
authority with respect to any alleged failure by Seller to have any permit,
license or authorization required in connection with the use, maintenance and
operation of the Property, or with respect to any generation, treatment,
storage, recycling, transportation, release or disposal of any "hazardous
substances" (as hereinafter defined);
(j) Certificate of Occupancy. Seller has no knowledge that
certificates of occupancy have not been issued for the Property, including all
medical offices; however, Seller has not been able to locate or obtain copies of
all certificates of occupancy for all suites in the Project; Seller has no
knowledge that any certificate of occupancy for a current tenant has been
revoked or canceled;
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(k) Access. To the best of Seller's knowledge, no fact or
condition exists which would result or could result in the termination or
reduction of the current access from the Property to existing roads or to sewer
or other utility services presently serving the Property;
(l) Utilities. Water, sewer, electricity and telephone
facilities have been available to the Property during Seller's ownership in
adequate capacity for the purpose of using the Project for its intended purpose;
(m) No Option to Purchase. No third party has an option to
purchase the Project;
(n) No Bankruptcy. There are no attachments, executions,
assignments for the benefit of creditors or voluntary or involuntary proceedings
in bankruptcy pending, contemplated or, to the knowledge of Seller, threatened
against Seller
(o) Service, Maintenance Agreements, etc. As of the Closing
Date, there shall be no employees employed by Seller or contractors retained by
Seller in the operation of the Project; and no contracts, oral or written, with
any employees nor any service contract, maintenance contract, nor any union or
other contract or agreement with respect to the Project; in each case, except as
listed in Exhibit K. All such agreements (if any) listed on said Exhibit K are
in full force and effect without default. Seller will not enter into any new
such agreement or modify any such agreement prior to the Closing;
(p) No Lease of Space. Seller will not, hereafter and prior to
the Closing Date, lease any space which is now or may become vacant without the
prior written approval of Purchaser, not to be unreasonably withheld or delayed;
(q) Seller to Maintain Premises. Seller will maintain the
physical condition of the Property in substantially the same condition as of the
date hereof through the Closing Date, reasonable wear and tear and loss by fire
or other casualty excepted, and will make any ordinary repairs and continue
maintenance of the Property from the date hereof until Closing, as it would do
in the normal course of operations, provided that in the event that any part of
the Project is damaged by fire or other casualty prior to Closing and the cost
to repair same exceeds $20,000, then Purchaser may at its option either (i)
terminate this Agreement (whereupon the Security Deposit shall be returned and
neither party shall be obligated to buy or sell under this Agreement), or (ii)
proceed to close and accept from Seller an assignment of any insurance proceeds
receivable due to such casualty loss plus a payment from Seller of the amount of
the deductible on Seller's casualty insurance policy, but provided further that
if the casualty loss is less than $20,000 the Purchaser shall proceed under
option (ii);
(r) Insurance Requirements. To the best of Seller's knowledge,
there are no outstanding requirements by the holder of any existing note and
mortgage on the Property, or any insurance company, insurance rating board, fire
underwriting board or governmental agency requiring or recommending any repairs
or work to be done at the Property or any equipment to be installed thereon with
which Seller has not fully complied;
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(s) Income and Operating Expenses. Seller believes that the
schedule annexed hereto as Exhibit L and made a part hereof accurately sets
forth the income and expenses of the Project on an annual basis for the period
ended December 31, 1998, and for the current year through September 30, 1999.
However, such statements were prepared by HRG (which itself is making no
representation or warranty to Purchaser in respect thereof), are unaudited and
have not been independently verified by Seller. To the best of Seller's
knowledge, there was no tax abatement or exemption in effect for the Property
during said period. To the best of Seller's knowledge, there has been no
material adverse change in the operation or income of the Property since
September 30, 1999;
(t) Employees. There are no employees employed directly by
Seller and stationed on site in the operation and maintenance of the Property;
(u) No Defective Condition. Except as otherwise may be
described herein and in that certain Property Condition Assessment dated January
17, 1997 prepared for Xxxxxxxx Fright Company - Atlanta, by Asset Advisory
Services, Inc. and the Building and Site Assessment, dated May 17, 1999,
prepared for HRG by CDH Partners, Inc. relative to the Property (the terms of
which are hereby incorporated by reference into this Agreement), Seller has not
been advised and is not aware that (considering the age of the Project): (I)
there is any substantial defective condition, structural or otherwise, in the
buildings or other improvements on the Property; or (II) that all heating,
electrical, plumbing, air conditioning, and other mechanical and electrical
systems are not in reasonably good condition and working order, or (III) that
there are any substantial roof leaks. Nevertheless, Seller believes that the
Property does not comply with the Americans With Disabilities Act, and Seller
further discloses that it is possible that the buildings and improvements and
the plumbing, electrical and mechanical systems of the Project do not fully
comply with current codes and ordinances. During its ownership of the Property,
Seller has been required to upgrade some of such systems when preparing suites
for tenant occupancy;
(v) Hazardous Substances. When it was purchased by Seller, the
Project contained asbestos containing materials, and Seller undertook to remove
same, but Seller gives no assurance that all such materials have been removed.
In addition the parties are aware that the physicians and other tenants of the
Project normally procure, store, use and dispose of hazardous materials in the
course of business and medical practice, and Seller makes no representations
about the use or disposal of hazardous materials by tenants. Otherwise, to the
best of Seller's knowledge, except as otherwise may be described in that certain
Phase I Environmental Site Assessment and Limited Asbestos Survey dated February
27, 1997, prepared for Xxxxxxxx Xxxxxx Company-Atlanta by United Consulting
Group, Ltd. relative to the Property, as supplemented by that certain Phase II
Environmental Site Assessment, dated March 13, 1997, likewise prepared for
Xxxxxxxx Xxxxxx Company-Atlanta, by United Consulting Group, Ltd.; or the Phase
I Environmental Site Assessment dated May 16, 1999, prepared for HRG by Xxxxxxx
Engineering, Inc. ("Xxxxxxx") relative to the Property, as supplemented by that
certain Phase II Environmental Site Assessment, dated September 17, 1999,
likewise prepared for HRG by Xxxxxxx relative to Property (the terms of each
which reports are hereby incorporated by reference into this Agreement), and
except for substances normally used in medical building
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operations and maintenance (such as for example but without limitation cleaning
fluids), the Property contains no hazardous substance, as such term is defined
in the Comprehensive Environmental Response and Liability Act, 42 U.S.C. ss.
9601 et seq., as amended, or under any other state or local environmental
statues or regulations issued pursuant thereto;
(w) Violations. To the best of Seller's knowledge, there are
no outstanding notes or notices of violations of law or governmental ordinances,
orders or requirement issued by any governmental department, agency, bureau or
instrumentality affecting the Property or any part thereof (collectively,
"Property Violations"); and all Property Violations affecting the Property
discovered by Purchaser to exist as of the Closing Date shall be complied with
and removed of record by Seller, at its expense, at Closing, or Purchaser may
(as its sole remedy) terminate this Agreement, receive a return of the Security
Deposit and neither party shall be obligated to buy or sell hereunder;
(x) Vendors. All vendors, suppliers and other contractors or
persons supplying goods or services to the Property at the instance of Seller or
its property manager, have been paid in full to date or will be paid on the
Closing Date;
(y) No Landmark. [INTENTIONALLY OMITTED]; and
(z) No Unpaid Bills. As of the Closing Date, there are no
unpaid bills for work, labor, service or materials furnished to the Project upon
the request or order of Seller, which may be made the basis of a lien or, if
there are any such bills, Seller will pay them by Closing.
All of the representations or warranties of the Seller in this Article 13 or
otherwise in this Agreement, except for Article 13.1(a), are made and expressly
limited to the actual, present knowledge of the Seller's Managers, without
imputation of knowledge or notice which may be attributed to them as a matter of
law or by virtue of the knowledge of non-executive employees of Seller or
officers or employees of the Seller's property management company (including
HRG). It is agreed that any statement made to "Seller's knowledge" or "to the
best of Seller's knowledge" or similar statements is limited as provided in the
preceding sentence.
13.2 Of Purchaser:
(a) Authority. Purchaser has the full and unrestricted power
and capacity to enter into and carry out the terms of this Agreement and all
other agreements referred to herein. This Agreement constitutes, and all other
agreements, documents and instruments to be executed by Purchaser pursuant
hereto, when executed and delivered by Purchaser, will each constitute a valid
and binding obligation of Purchaser as the case may be, enforceable in
accordance with its terms;
(b) No Defaults. Neither the execution, delivery or
performance of this Agreement or any other agreement contemplated hereby, the
fulfillment of and compliance with the respective terms and provisions hereof or
thereof, nor the consummation of the transactions contemplated hereby or
thereby, will: (i) conflict with, or result in a breach of, any
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of the terms, conditions or provisions of, or constitute any default under, any
agreement or instrument to which Purchaser is a party or is subject; (ii)
violate any restriction to which Purchaser is a party or is subject; or (iii)
constitute a violation of any applicable law, statute, regulation, ordinance,
rule, judgment, decree, writ or order; and
(c) No Litigation. There are no actions, suits, claims,
arbitrations, proceedings, orders, judgments or investigations pending or, to
the knowledge of Purchaser, threatened against or affecting or which question
the validity of this Agreement or any action taken or to be taken under any of
the provisions of this Agreement, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality.
ARTICLE 14
CONDITIONS PRECEDENT TO CLOSING
14.1 The obligation of Purchaser to purchase the Project pursuant to
the provisions of this Agreement shall be subject to the following conditions
(all or any of which may be waived in writing, in whole or in part, by
Purchaser):
(a) The representations and warranties of Seller in this
Agreement shall be true and correct and the covenants and agreements of Seller
contained herein shall have been complied with as of the date of Closing;
(b) Seller shall deliver the documents described in Articles 5
and 7 of this Agreement;
(c) There shall have been no material changes in the zoning
laws and regulations applicable to the Project;
(d) Subject to the terms of Section 7.1(j), Seller shall have
obtained an estoppel certificate from tenants each of occupying the Property's
leased space under the Tenant Leases, to be substantially in the form annexed
hereto as Exhibit M, setting forth that (i) there are no defaults thereunder by
landlord or tenant, (ii) their respective leases are valid, unmodified and in
full force and effect, (iii) that all rent and additional rent has been paid
through the month of Closing and (iv) such other matters as are set forth in
Exhibit M annexed hereto;
(e) Seller shall deliver title to the Property as provided in
Article 5, and Purchaser shall have obtained a Title Policy and Survey
corresponding thereto and confirming same.
14.2 If any of the conditions precedent to closing set forth herein or
any other covenant or closing obligation of Seller shall not have been complied
with as of the Closing Date, then, in such event, Purchaser shall have the
right, in addition to any other rights or remedies available to Purchaser under
this Agreement or in equity or at law, to rescind this transaction in which
event
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the parties shall be relieved and released from any further obligations to
each other or Purchaser may close the transaction in accordance with its terms.
ARTICLE 15
POST-CLOSING OBLIGATIONS
15.1 At the Closing, Seller shall deposit in escrow the sum of $125,000
with HRG, as Escrow Agent, which sum shall constitute an escrow account for the
purposes herein stated (to be effected by adjustment to the Purchase Price),
which sum shall be established on its books as an escrow account. This escrow
account, which shall hereinafter be referred to as the "Parking Revenue Escrow
Account," will be used to cover any shortfall in the Property's parking revenue
that may occur on a monthly basis. Under the terms of this escrow arrangement,
but subject to Section 15.2, the Purchaser will be able to draw from HRG funds
on deposit in the Parking Revenue Escrow Account on a monthly basis if the
revenue associated with the Property's parking facilities does not meet or
exceed $16,667 per month. The remaining funds in the Parking Revenue Escrow
Account will be released by HRG to the Seller once the Property's parking
facilities meet or exceed $16,667 per month of revenue for three (3) consecutive
months (or, at any earlier time at which the Purchaser elects, at its option, to
terminate this escrow agreement). If, during any calendar month ending
subsequent to the Closing Date, parking revenues exceed $16,667, the excess
thereof shall be credited against any deficiency in parking revenue (below
$16,667) in the preceding or succeeding calendar month (but only in one or the
other of such months, and not in any earlier or later calendar months); and any
surplusage in monthly parking revenues in excess of $16,667 remaining after any
such application shall be added to the Parking Revenue Escrow Account (even if,
by doing so, the amount of funds in deposit therein exceeds $125,000). Seller's
obligations hereunder are strictly limited to the funds on deposit from time to
time in the Parking Revenue Escrow Account.
15.2 Purchaser's right to draw upon the Parking Reserve Escrow Account
is expressly conditioned upon Purchaser making reasonable, diligent and
continuous efforts (provided that in doing so Purchaser does not incur any
material expense or risk) to operate the Property's parking facilities in a
manner which will provide the maximum reasonably available revenue from parking;
it being understood and agreed by Seller, however, that so long as the Purchase
operates the Property's parking facilities in substantially the same manner as
operated by Seller immediately prior to the Closing Date, then, such operation
shall be deemed operated in such manner as to provide "the maximum reasonably
available revenue from parking"; that is, and without limitation of the
foregoing, in order to comply herewith, Purchaser shall be under no obligation
to increase (or reduce) parking fees, add parking spaces, change hours of
operation or permit usage not permitted on the Closing Date. Without limiting
the foregoing, Purchaser agrees to instruct its Property management to comply
with this Section. Further, Purchaser is not authorized to give any tenant free
parking (unless that tenant is receiving free parking on the Closing Date) and
must charge all tenants and others a reasonable parking fee for use of the
parking facilities on the Property (with the "reasonableness" of any charge or
free to be determined in the manner provided hereinabove). If Purchaser fails to
comply with the provisions of this Section 15.2, Purchaser's right to draw on
the Parking Revenue Escrow Deposit shall terminate. Purchaser agrees to promptly
refund to Seller any parking revenue which was withdrawn from the Escrow while
Purchaser was in violation of this Section. Purchaser shall provide to Seller no
later than the fifteenth (15th) day of each month, a parking
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revenue report for the prior month giving in reasonable detail the amount and
sources of parking revenue and any funds withdrawn from the Escrow. Seller and
its agents are authorized to directly contact the Purchaser's property manager
and building and parking lot personnel to make inquiries and request documents
regarding the parking revenue and efforts to obtain the maximum parking revenue,
provided that (i) such requests are made only not more frequently than monthly,
and (ii) any direct costs incurred by such persons in responding to such
inquiries are reimbursed to such persons by Seller.
15.3 The provisions of this Article 15 shall survive the Closing.
ARTICLE 16
MISCELLANEOUS
16.1 This Agreement is binding upon and shall inure to the benefit of,
the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns.
16.2 Wherever under the terms and provisions of this Agreement the time
for performance falls upon a Saturday, Sunday or legal holiday, such time for
performance shall be extended to the second business day thereafter.
16.3 This Agreement may be executed in one or more counterparts, all of
which when taken together shall constitute one and the same agreement, and shall
become effective when one or more counterparts have been executed by each of the
parties hereto and delivered to each of the other parties hereto.
16.4 The captions at the beginning of the several paragraphs, Sections
and Articles are for convenience in locating the context, but are not part of
the context. Unless otherwise specifically set forth in this Agreement to the
contrary, all references to Exhibits contained in this Agreement refer to the
Exhibits which are attached to this Agreement all of which Exhibits are
incorporated in, and made a part of, this Agreement by reference. Unless
otherwise specifically set forth in this Agreement to the contrary, all
references to Articles, Sections, paragraphs and clauses refer to portions of
this Agreement.
16.5 If any term or provision of this Agreement shall be held to be
illegal, invalid, unenforceable or inoperative as a matter of law, the remaining
terms and provisions of this Agreement shall not be affected thereby, but each
such remaining term and provision shall be valid and shall remain in full force
and effect.
16.6 This Agreement and the other writings referred to in, or delivered
pursuant to, this Agreement, embody the entire understanding and contract
between the parties hereto with respect to the Project and supersede any and all
prior agreements and understandings between the parties hereto, whether written
or oral, formal or informal, with respect to the subject matter of this
Agreement. This Agreement has been entered into after full investigation by each
party and its professional advisors, and neither party is relying upon any
statement, representation or warranty made by or on behalf of the other which is
not expressly set forth in this Agreement.
-18-
16.7 No extensions, changes, waivers, modifications or amendments to or
of this Agreement, of any kind whatsoever, shall be made or claimed by Seller,
HRG or Purchaser, and no notices of any extension, change, waiver, modification
or amendment made or claimed by Seller, HRG or Purchaser shall have any force or
effect whatsoever, unless the same is contained in a writing and is fully
executed by the party against whom such matter is asserted.
16.8 This Agreement shall be governed and interpreted in accordance
with the laws of the State of Georgia.
16.9 Each party hereto shall pay all charges specified to be paid by
them pursuant to the provisions of this Agreement and their own attorney's fees
in connection with the negotiation, drafting and closing of this Agreement.
16.10 Time is of the essence in this Agreement.
16.11 Seller agrees to keep confidential all information concerning the
Property, the Project and the Tenant Leases which it may retain in its files
subsequent to the Closing Date.
16.12 THE DECLARATION OF TRUST ESTABLISHING UNIVERSAL HEALTH REALTY
INCOME TRUST, FILED AUGUST 6, 1986, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO ("DECLARATION"), IS DULY FILED IN THE OFFICE OF THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT
THE NAME "UNIVERSAL HEALTH REALTY INCOME TRUST," REFERS TO THE TRUSTEES UNDER
THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY AND
THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE TRUST SHALL BE
HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR
CLAIM AGAINST, THE TRUST. ALL PERSONS DEALING WITH THE TRUST, IN ANY WAY,
WHETHER UNDER THIS AGREEMENT OR IN ANY AGREEMENT REFERENCED HEREIN OR EXECUTED
IN CONNECTION HEREWITH, SHALL LOOK ONLY TO THE ASSETS OF THE TRUST FOR THE
PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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ARTICLE 17
SECURITY DEPOSIT
Effective upon its execution and delivery of this Agreement, Purchaser shall
deposit in escrow with HRG the sum of $100,000 as xxxxxxx money (the "Xxxxxxx
Money Deposit"). At the Closing, the Xxxxxxx Money Deposit shall be credited to
the Purchase Price. If, by the Closing Date, Purchaser has not purchased the
Property other than because of (i) Seller's noncompliance with any terms or
conditions hereof concerning such purchase or (ii) the exercise by Purchaser of
any right of termination extended to it hereunder pursuant to Section 4.2(c),
Section 9.2, Section 13.1(q) or Section 13.1(w); then, HRG shall pay over to
Seller the Xxxxxxx Money Deposit as full liquidated damages and Seller's
exclusive remedy for Purchaser's default (it being understood and agreed by the
parties that any actual damages suffered by Seller as a result of such default
by Purchaser would be impracticable to ascertain and that retention of the
Xxxxxxx Money Deposit is a reasonable estimate of Seller's damages). If however,
by the Closing Date, Purchaser has not purchased the Property because of (i)
Seller's noncompliance with any terms and conditions hereof concerning such
purchase or (ii) the exercise by Purchaser of any right of termination extended
to it hereunder pursuant to Section 4.2(c), Section 9.2, Section 13.1(q) or
Section 13.1(w); then, HRG shall return the Xxxxxxx Money Deposit to Purchaser.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names by their respective duly authorized representatives
under seal on the day and year first above written.
"SELLER"
XX XXXXXXXXX PARTNERS, LLC, a (SEAL) Georgia limited
liability company
By:____________________________________
its Manager
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"PURCHASER"
UNIVERSAL HEALTH REALTY (SEAL)
INCOME TRUST
By:______________________________
Xxxxxxx X. Xxxxxx
Vice Xxxxxxxxx
-00-
"XXX"
HEALTHAMERICA REALTY GROUP, LLC
By:________________________________
Its Manager
-22-
