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Exhibit 2.14
AGREEMENT OF SALE AND PURCHASE
BY AND AMONG
HAVENWYCK HOSPITAL, INC.
AND
MICHIGAN PSYCHIATRIC SERVICES, INC., AS SELLERS
AND
CAPSTONE CAPITAL CORPORATION, AS PURCHASER
September 28, 1998
For
HAVENWYCK HOSPITAL AND RELATED PROPERTIES
0000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx
0000-0000 University Drive
Auburn Hills, Michigan
0000 Xxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS................................................................................1
ARTICLE 2 AGREEMENTS TO SELL, PURCHASE AND LEASE.....................................................7
2.1 AGREEMENT TO SELL AND PURCHASE.............................................................7
2.2 AGREEMENT TO LEASE.........................................................................7
ARTICLE 3 EXCHANGE CONSIDERATION.....................................................................7
3.1 PAYMENT OF CASH CONSIDERATION..............................................................7
3.2 TRANSFER OF EXCHANGE PROPERTY..............................................................7
ARTICLE 4 ITEMS TO BE FURNISHED TO PURCHASER BY SELLER...............................................8
4.1 DUE DILIGENCE MATERIALS....................................................................8
4.2 DUE DILIGENCE REVIEW.......................................................................9
ARTICLE 5 TITLE AND SURVEY...........................................................................9
5.1 TITLE COMMITMENT, EXCEPTION DOCUMENTS AND SURVEY...........................................9
ARTICLE 6 REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS......................................9
6.1 REPRESENTATIONS AND WARRANTIES OF SELLER...................................................9
6.2 INDEMNITY OF SELLER.......................................................................13
6.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER....................................14
ARTICLE 7 CONDITIONS TO PURCHASER'S AND SELLER'S OBLIGATIONS........................................15
7.1 CONDITIONS TO PURCHASER'S OBLIGATIONS.....................................................15
7.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS..........................................17
7.3 CONDITIONS TO SELLER'S OBLIGATIONS........................................................17
7.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS.............................................18
ARTICLE 8 PROVISIONS WITH RESPECT TO THE CLOSING....................................................18
8.1 SELLER'S CLOSING OBLIGATIONS..............................................................18
8.2 PURCHASER'S CLOSING OBLIGATIONS...........................................................19
ARTICLE 9 EXPENSES OF CLOSING.......................................................................19
9.1 ADJUSTMENTS...............................................................................19
9.2 CLOSING COSTS.............................................................................19
ARTICLE 10 DEFAULT AND REMEDIES......................................................................20
10.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES....................................................20
10.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES....................................................20
ARTICLE 11 MISCELLANEOUS.............................................................................21
11.1 SURVIVAL..................................................................................21
11.2 NOTICES...................................................................................21
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11.3 ENTIRE AGREEMENT; MODIFICATIONS...........................................................22
11.4 APPLICABLE LAW............................................................................22
11.5 CAPTIONS..................................................................................23
11.6 BINDING EFFECT............................................................................23
11.7 EXTENSION OF DATES........................................................................23
11.8 TIME IS OF THE ESSENCE....................................................................23
11.9 WAIVER OF CONDITIONS......................................................................23
11.10 BROKERS...................................................................................23
11.11 RISK OF LOSS..............................................................................24
11.12 NO ASSUMPTION OF LIABILITIES..............................................................24
11.13 COUNTERPARTS..............................................................................24
11.14 OTHER TERMS...............................................................................24
11.15 SINGULAR AND PLURAL REFERENCES............................................................24
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") is made and
entered into as of September ____ , 1998, by and among HAVENWYCK HOSPITAL, INC.,
a Michigan corporation, and MICHIGAN PSYCHIATRIC SERVICES, INC., a Michigan
corporation (collectively, "Seller"), and CAPSTONE CAPITAL CORPORATION, a
Maryland corporation ("Purchaser"). Seller and Purchaser are sometimes
collectively referred to herein as the "Parties" and each of the Parties is
sometimes singularly referred to herein as a "Party".
WHEREAS, Seller is the owner of the Property (as defined below),
consisting of certain parcels of real property and the improvements located
thereon commonly known as Havenwyck Hospital located at 0000 Xxxxxxxxxx Xxxxx,
0000 Xxxxx Road, and 0000-0000 Xxxxxxxxxx Xxxxx, Xxxx of Auburn Hills, Oakland
County, Michigan, which improvements, together with all related land and parking
areas, total approximately 31.395 acres, more or less, as more particularly
described on EXHIBIT A attached hereto;
WHEREAS, Purchaser is the owner of the Exchange Property (as defined
below), consisting of certain real property and improvements located thereon
commonly known as Desert Vista Hospital located at 000 Xxxx Xxxxx Xxxx, Xxxx,
Xxxxxxxx Xxxxxx, Arizona, consisting of one two-story building comprising and
containing 113,555 square feet, more or less, which together with all related
land and parking areas total approximately 10.485 acres, more or less, as more
particularly described on EXHIBIT A-1; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property, and simultaneously therewith, to enter into a lease transaction
pursuant to which Purchaser shall lease to Seller, and Seller shall lease from
Purchaser, the Property.
NOW, THEREFORE, in consideration of the sum of $10.00, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE 1
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"Xxxx of Sale" means a xxxx or bills of sale in the form attached as
EXHIBIT B hereto, and sufficient to transfer to Purchaser all of the items set
forth therein.
"Business Agreement" means any management agreement, service contract,
easement, covenant, restriction or other agreement relating to the operation or
maintenance of the Property.
"Business Day(s)" means calendar days other than Saturdays, Sundays and
legal holidays.
"Cash Consideration" means an amount equal to $1,300,000.
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"Certificate of Non-Foreign Status" means a certificate dated as of the
Closing Date, addressed to Purchaser and duly executed by Seller, in the form of
EXHIBIT C attached hereto.
"Claim" means any obligation, liability, lien, encumbrance, loss,
damage, cost, expense or claim, including, without limitation, any claim for
damage to property or injury to or death of any person or persons.
"Closing" means the consummation of the sale and purchase provided for
herein, to be held at such place as the Parties may mutually agree.
"Closing Certificate" means a certificate in the form of EXHIBIT D
wherein Seller shall represent that the representations and warranties of Seller
contained in this Agreement are true and correct as of the Closing Date as if
made on and as of the Closing Date, except with respect to those matters that
may be disclosed in writing to and accepted by Purchaser prior to the Closing
Date.
"Closing Date" means the closing date as shall be hereafter agreed upon
by the Parties but in no event later than September __, 1998.
"Credit Enhancements" means all security deposits, security interests,
letters of credit, pledges, prepaid rent or other sums, deposits or interests,
if any, held by Seller with respect to the Property, the Tenant Leases or the
Tenants.
"Deed" means a special warranty deed substantially in the form of
EXHIBIT E attached hereto (as the same may be modified to comply with local law
and custom), executed by each Seller, as grantor, in favor of Purchaser, as
grantee, conveying the Land and Improvements to Purchaser, subject only to the
Permitted Exceptions.
"Disclosure Schedule" has the meaning set forth in Section 6.1(v).
"Due Diligence Materials" means the information to be provided by
Seller to Purchaser pursuant to the provisions of Section 4.1 hereof.
"Date hereof" means the later of the two dates on which this Agreement
is signed and all changes initialed by Seller and Purchaser, as indicated by
their signatures below; provided that in the event only one Party dates its
signature, then the date of its signature shall be the Date hereof.
"Engineering Documents" means all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications, engineering
plans and studies, floor plans, landscape plans, and other plans and studies
that relate to the Land, the Improvements or the Fixtures and are in Seller's
possession or control.
"Exception Documents" means true, correct and legible copies of each
document listed as an exception to title on the Title Commitment.
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"Exchange Personal Property" means the personal property set forth on
EXHIBIT G attached hereto.
"Exchange Property" means the real property described on EXHIBIT A-1
attached hereto, together with any related improvements and the Exchange
Personal Property.
"Exchange Value" means $9,850,000, which is the sum of the Cash
Consideration plus the assumed value of the Exchange Property.
"Fixtures" means all permanently affixed equipment, machinery,
fixtures, and other items of real and/or personal property, including all
components thereof, now and hereafter located in, on or used in connection with,
and permanently affixed to or incorporated into the Improvements, including
without limitation all furnaces, boilers, heaters, electrical equipment,
heating, plumbing, lighting, ventilating, refrigerating, incineration, air and
water pollution control, waste disposal, air-cooling and air-conditioning
systems and apparatus, sprinkler systems and fire and theft protection
equipment, built-in vacuum, cable transmission, oxygen and similar systems, all
of which, to the greatest extent permitted by law, are hereby deemed by the
Parties hereto to constitute real estate, together with all replacements,
modifications, alterations and additions thereto, but specifically excluding any
Tenant's trade fixtures or other fixtures or equipment that a Tenant is
permitted to remove pursuant to the applicable Tenant Lease.
"Guarantor" means Ramsay Health Care, Inc., a Delaware corporation, and
owner of 100% of the issued and outstanding capital stock of Michigan
Psychiatric Services, Inc., who is the owner of 100% of the issued and
outstanding capital stock of Havenwyck Hospital, Inc.
"Guaranty" means a guaranty of the obligations of Seller under the
Lease, executed by Guarantor.
"Hazardous Materials" means any substance, including without limitation
asbestos or any substance containing asbestos and deemed hazardous under any
Hazardous Materials Law, the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, medical waste,
chemicals, pollutants, effluents, contaminants, emissions or related materials
and items included in the definition of hazardous or toxic wastes, materials or
substances under any Hazardous Materials Law.
"Hazardous Materials Law" means any law, regulation or ordinance
relating to environmental conditions, medical waste and industrial hygiene,
including without limitation the Resource Conservation and Recovery Act of 1976
("RCRA"), the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), the Hazardous Materials Transportation
Act, the Federal Water Pollution Control Act, the Clean Air Act, the Clean Water
Act, the Toxic Substances Control Act, the Safe Drinking Water Act, the Atomic
Energy Act, and all similar federal, state and local environmental statutes,
ordinances and the regulations, orders, or decrees now or hereafter promulgated
thereunder.
"Independent Consideration" means the sum of $100.00.
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"Improvements" means all buildings, structures, Fixtures and other
improvements of every kind now or on the Closing Date located on the Land,
including without limitation all alleyways, connecting tunnels, crosswalks,
sidewalks, landscaping, parking lots and structures, roads, drainage and all
above-ground and underground utility structures, equipment systems that
constitute Fixtures and other so-called "infrastructure" improvements.
"Intangible Property" means all intangible property or any interest
therein now or on the Closing Date owned or held by Seller in connection with
the Land, the Improvements or the Fixtures, including without limitation all
water rights and reservations, zoning rights and warranties related to the Land,
the Improvements or the Fixtures, or any part thereof, PROVIDED "Intangible
Property" shall not include the general corporate trademarks, service marks,
logos or insignia or books and records of Seller.
"Land" means the real property more particularly described on EXHIBIT A
attached hereto and made a part hereof, together with all covenants, licenses,
privileges and benefits thereto belonging, and any easements, rights-of-way,
rights of ingress or egress or other interests of Seller in, on, or to any land,
highway, street, road or avenue, open or proposed, in, on, across, in front of,
abutting or adjoining such real property including without limitation all strips
and gores adjacent to or lying between such real property and any adjacent real
property.
"Laws" means all federal, state and local laws, moratoria, initiatives,
referenda, ordinances, rules, regulations, standards, orders and other
governmental requirements, including, without limitation, those relating to the
environment, health and safety, disabled or handicapped persons.
"Lease" means a lease agreement to be executed and delivered by Lessee
in favor of Purchaser at the Closing, pursuant to the terms of which Purchaser
shall lease the Property to Seller following the Closing.
"Lessee" means MICHIGAN PSYCHIATRIC SERVICES, INC., a Michigan
corporation.
"Party" and "Parties" have the meanings set forth in the preamble to
this Agreement.
"Permits" means all permits, licenses, approvals, entitlements,
notifications, determinations and other governmental and quasi-governmental
authorizations including without limitation certificates of occupancy, required
in connection with the ownership, planning, development, construction, use,
operation or maintenance of the Property (other than such items related solely
to the conduct by Seller of its business on the Property or Seller's other
property or assets.) As used herein, "quasi-governmental" shall include the
providers of all utility services to the Property.
"Permitted Exceptions" means the exceptions listed on EXHIBIT F
attached hereto.
"Property" means, collectively, the Real Property (together with all
rights, titles and appurtenant interests), the Intangible Property, the
Warranties, the Engineering Documents and the Seller's Personal Property. As
used in the foregoing, "appurtenant interests" shall mean those interests which
pass by operation of law with the conveyance of the fee simple estate in the
Land and Improvements.
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"Real Property" means the Land, the Improvements and the Fixtures.
"Search Reports" means the initial reports of searches made of the
Uniform Commercial Code Records of the County in which the Property is located,
and of the office of the Secretary of State of the State in which the Property
is located, which searches shall reflect that none of the Property is encumbered
by liens. The Search Reports shall be updated, at Seller's expense, at or within
one week prior to Closing.
"Seller's Personal Property" means the personal property set forth on
EXHIBIT I attached hereto.
"Survey" means a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in which
the Land is located and who is acceptable to Purchaser, which survey shall: (a)
include a legal description of the Land by metes and bounds (which shall include
a reference to the recorded plat, if any), and a computation of the area
comprising the Land in both acre, gross square feet and net square feet (to the
nearest one-hundredth of said respective measurement); (b) accurately (upon
Seller's belief, without inquiry) show the location on the Land of all
improvements, building and set-back lines, fences, evidence of abandoned fences,
ponds, creeks, streams, rivers, officially designated 100-year flood plains and
flood prone areas, canals, ditches, easements, roads, rights-of-way and
encroachments; (c) be certified to Purchaser, the Title Company, and any
third-party lender designated by Purchaser pursuant to a certification in
substantially the form of EXHIBIT K attached hereto; (d) legibly identify any
and all recorded matters shown on the Title Commitment or on said survey by
appropriate volume and page recording references and the survey shall show the
location of all adjoining streets; and (e) be satisfactory to the Title Company
so as to permit it to amend the standard exception for area and boundaries in
the Title Policy.
"Tenant" means the lessees or tenants under the Tenant Leases, if any.
"Tenant Leases" means all leases, subleases and other rental
agreements, if any (written or verbal, now or hereafter in effect) that grant a
possessory interest in and to any space in the Improvements or that otherwise
have rights with regard to the use of the Land or Improvements, and all Credit
Enhancements, if any, held in connection therewith.
"Title Commitment" means a current commitment issued by the Title
Company to Purchaser pursuant to the terms of which the Title Company shall
commit to issue the Title Policy to Purchaser in accordance with the provisions
of this Agreement, and reflecting all matters which would be listed as
exceptions to coverage on the Title Policy.
"Title Company" means Commonwealth Land Title Insurance Company, whose
address is c/o New York Land Title Services, Inc., 000 0xx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxx, National Department.
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"Title Policy" means an ALTA Extended Coverage Owner's Policy of Title
Insurance (1970 Form B - 1987 revision), together with such endorsements thereto
as are reasonably and customarily required by institutional purchasers of real
property similar to the Property, with liability in the amount of the Exchange
Value, dated as of the Closing Date, issued by the Title Company, insuring title
to the fee interest in the Real Property in Purchaser, subject only to the
Permitted Exceptions and to the standard printed exceptions included in the ALTA
standard form owner's extended coverage policy of title insurance, with the
following modifications: (a) the exception for areas and boundaries shall be
deleted; (b) the exception for ad valorem taxes shall reflect only taxes for the
current and subsequent years; (c) any exception as to parties in possession
shall be limited to rights of tenants in possession, as tenants only, pursuant
to the Lease and the Tenant Leases; (d) there shall be no general exception for
visible and apparent easements or roads and highways or similar items (with any
exception for visible and apparent easements or roads and highways or similar
items to be specifically referenced to and shown on the Survey and also
identified by applicable recording information); and (e) all other exceptions
shall be modified or endorsed in a manner reasonably acceptable to Purchaser.
"Warranties" means all warranties, representations and guaranties with
respect to the Property, whether express or implied, which Seller now holds or
under which Seller is the beneficiary (other than such items related solely to
the conduct by Seller of its business on the Property or Seller's other property
or assets.)
ARTICLE 2
AGREEMENTS TO SELL, PURCHASE AND LEASE
2.1 AGREEMENT TO SELL AND PURCHASE. In consideration for the transfer
of the Exchange Property and the payment of the Cash Consideration by Purchaser
to Seller (or its designee) Seller shall sell, convey, assign, transfer and
deliver to Purchaser and Purchaser shall purchase, acquire and accept from
Seller, the Property (it being expressly agreed that the Property shall not
include any accounts receivable of Seller), subject to the terms and conditions
of this Agreement. To the extent permitted or required by law, Seller shall
assign to Purchaser all of Seller's right, title and interest in and to the
Permits.
2.2 AGREEMENT TO LEASE. On the Closing Date, and subject to performance
by the Parties of the terms and provisions of this Agreement, Purchaser shall
lease to Lessee and Lessee shall lease from Purchaser, the Property at the
rental and upon the terms and conditions set forth in the Lease.
ARTICLE 3
EXCHANGE CONSIDERATION
3.1 PAYMENT OF CASH CONSIDERATION. The Cash Consideration shall be paid
by Purchaser delivering to Seller at the Closing a wire transfer or other
immediately available funds payable to the order of Seller in the amount of the
Cash Consideration, subject to adjustment as provided in Article 9 hereof.
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3.2 TRANSFER OF EXCHANGE PROPERTY. At the Closing, Purchaser shall
transfer title to the Exchange Property to Seller (or Seller's designee) by
means of a special warranty deed in a form reasonably acceptable to the Title
Company and Seller, together with a xxxx of sale in substantially the same form
as the Xxxx of Sale for the Exchange Personal Property, if any. Additionally,
Purchaser shall execute such affidavits and other instruments as Seller may
reasonably request prior to the Closing in connection with the transfer of the
Exchange Property to Seller.
ARTICLE 4
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER
4.1 DUE DILIGENCE MATERIALS. Prior to the execution hereof, Seller
shall have delivered to Purchaser or made available to Purchaser at the Property
for its review the following items:
(a) True, correct, complete and legible copies of all Tenant Leases,
Business Agreements, Warranties, Permits, and Engineering Documents;
(b) A true, correct, complete and legible rent roll of all existing
Tenant Leases, if any, setting forth with respect to each of the Tenant Leases:
(i) the premises covered; (ii) the date of such Tenant Lease and all amendments
and modifications thereto; (iii) the name of the Tenant, licensee or occupant;
(iv) the term, including specification of the commencement date and the
termination date; (v) the rents; (vi) the nature and amount of the security
deposits thereunder, if any; (vii) options to renew or extend contained in any
of the Tenant Leases; (viii) the status of Tenant improvements to be performed
by Seller; and
(c) True, correct, complete and legible copies of the following items:
(i) tax statements or assessments for all real estate and
personal property taxes assessed against the Property for the current
and the prior two calendar years;
(ii) certificates of insurance evidencing all existing fire
and extended coverage insurance policies and any other insurance
policies pertaining to the Property;
(iii) all instruments evidencing, governing or securing the
payment of any loans secured by the Property or related thereto;
(iv) audited balance sheets and income statements of Guarantor
for 1996 and 1997;
(v) all environmental studies or impact reports relating to
the Property in possession or control of Seller, if any, and any
approvals, conditions, orders or declarations issued by any
governmental authority relating thereto (such studies and reports shall
include, but not be limited to, reports indicating whether the Property
is or has been contaminated by Hazardous Materials); and
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(vi) all litigation files, if any, with respect to any pending
litigation and claim files for any claims made or threatened, the
outcome of which might have a material adverse effect on the Property
or the use and operation of the Property.
4.2 DUE DILIGENCE REVIEW. Prior to the Closing, Purchaser shall be
entitled to review the Due Diligence Materials delivered or made available by
Seller to Purchaser pursuant to the provisions of Section 4.1 above. If
Purchaser shall, for any reason in Purchaser's sole discretion, disapprove or be
dissatisfied with any aspect of such information, or the Property, then
Purchaser shall be entitled to terminate this Agreement by giving written notice
thereof to Seller on or before the Closing, whereupon this Agreement shall
automatically be rendered null and void, all moneys which have been delivered by
Purchaser to Seller or the Title Company (other than the Independent
Consideration) shall be immediately returned to Purchaser and thereafter neither
Party shall have any further obligations or liabilities to the other hereunder.
Alternatively, Purchaser may give written notice setting forth any defect,
deficiency or encumbrance and specify a time within which Seller may remedy or
cure such matter. If any defect, deficiency or encumbrance, so noticed, is not
satisfied or resolved to the satisfaction of Purchaser, in Purchaser's sole
discretion, within the time period specified in such written notice, this
Agreement shall automatically terminate as provided in this section. If no such
notice is timely given, then Purchaser shall be deemed to have waived its right
to so terminate. Also, Purchaser shall treat the Due Diligence Materials as
confidential and shall use them solely for the purpose of evaluating the
Property. If this Agreement is terminated, Purchaser shall promptly redeliver to
Seller all Due Diligence Materials.
ARTICLE 5
TITLE AND SURVEY
5.1 TITLE COMMITMENT, EXCEPTION DOCUMENTS AND SURVEY. Prior to the Date
hereof, Seller shall have delivered or caused to be delivered to Purchaser, the
Title Commitment, Exception Documents, Survey, and Search Reports.
ARTICLE 6
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
6.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to
enter into this Agreement and to purchase the Property, Seller represents and
warrants to Purchaser, to the best of its knowledge, as follows:
(a) Seller has, and at the Closing Seller will convey, transfer and
assign to Purchaser, good, marketable, fee simple and insurable title to the
Land, free and clear of any deeds of trust, mortgages, liens, encumbrances,
leases, tenancies other than the Tenants or Tenant Leases, licenses, chattel
mortgages, conditional sales agreements, security interests, covenants,
conditions, restrictions, judgments, rights-of-way, easements, encroachments and
any other matters affecting title or use of the Property, except for the
Permitted Exceptions.
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(b) Seller has duly and validly authorized and executed this Agreement
and has right, title, power and authority to enter into this Agreement and, at
Closing, to consummate the actions provided for herein, and the joinder of no
person or entity will be necessary to convey the Property fully and completely
to Purchaser at Closing. The execution by Seller of this Agreement and the
consummation by Seller of the transactions contemplated hereby do not, and at
the Closing will not (i) result in a breach of any of the terms or provisions
of, or constitute a default or a condition which upon notice or lapse of time or
both would ripen into a default under, any indenture, agreement, instrument or
obligation to which Seller is a party or by which Seller or the Property or any
portion thereof is bound; or (ii) constitute a violation of any order, rule or
regulation of any court or of any federal or state or municipal regulatory body
or administrative agency or other governmental body having jurisdiction over
Seller or any portion of the Property.
(c) There are no adverse or other parties in possession of the Property
or of any part thereof except Seller and Tenants, if any, under valid and
effective Tenant Leases delivered to Purchaser pursuant to this Agreement, and
no party has been granted any license, lease or other right relating to the use
or possession of the Property, except Tenants under Tenant Leases which have
been delivered to Purchaser pursuant to this Agreement.
(d) Each Tenant Lease, if any, furnished to Purchaser pursuant to this
Agreement is in full force and effect and has not been materially amended,
modified or supplemented in any way that has not been disclosed to Purchaser in
writing. The Tenant Leases, if any, furnished to Purchaser pursuant to this
Agreement constitute all material written and oral agreements of any kind for
the leasing, rental or occupancy of any portion of the Property. No material
default or breach on the part of Seller as landlord or Tenant exists under any
of the Tenant Leases. All material Tenant improvements, repairs and other work
and obligations, if any, then required to be performed by the landlord under
each of the Tenant Leases will be fully performed and paid for in full on or
prior to the Closing. Seller has not, except as disclosed to Purchaser in
writing, accepted the payment of rent or other sums due under any of the Tenant
Leases for more than one month in advance.
(e) None of the Tenant Leases and none of the rents or other charges
payable thereunder, if any, have been assigned, pledged or encumbered by Seller.
(f) No brokerage or leasing commissions or other compensation will be
due or payable to any person, firm, corporation or other entity with respect to,
or on account of, any Tenant Lease or any extensions or renewals thereof, if
any, except those agreements entered into or accepted in writing by Purchaser.
(g) No notice has been received by Seller and Seller is not aware of
any person having received notice from any insurance company that has issued a
policy with respect to any portion of the Property or from any board of fire
underwriters (or other body exercising similar functions), claiming any defects
or deficiencies or requiring the performance of any repairs, replacements,
alterations or other work. No notice has been received by Seller from any
issuing insurance company that any of such policies will not be renewed, or will
be renewed only at a higher premium rate than is presently payable therefor,
except as disclosed to and accepted by Purchaser in writing.
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(h) No pending condemnation, eminent domain, assessment or similar
proceeding or charge affecting the Property or any portion thereof exists.
Seller has not received any notice of a proposed increase in the assessed
valuation of the Property.
(i) (i) All of the Improvements (including all utilities) have been
completed and installed and are being used in accordance in all material
respects with all applicable Laws; (ii) permanent certificates of occupancy, all
licenses, permits, authorizations and approvals required by all governmental
authorities having jurisdiction, and the requisite certificates of the local
board of fire underwriters (or other body, exercising similar functions) have
been issued for the Improvements, and are in full force and effect; and (iii)
the Improvements, as designed and constructed, comply in all material respects
with all Laws applicable thereto.
(j) (i) The existing water, sewer, gas and electricity lines, storm
sewer and other utility systems on the Land are adequate to serve the utility
needs of the Property; (ii) all utilities required for the operation of the
Improvements enter the Land through adjoining public streets or through
adjoining private land in accordance with valid public or private easements that
will inure to the benefit of Purchaser; (iii) all approvals, licenses and
permits required for said utilities have been obtained and are in force and
effect; and (iv) all of said utilities are installed and operating, all
installation and connection charges have been paid in full, and the right to the
return of any deposit or contribution in connection therewith shall inure to
Purchaser.
(k) (i) There are no material structural defects in any of the
buildings or other Improvements constituting the Property; (ii) the
Improvements, all heating, electrical, plumbing and drainage at or servicing the
Property and all facilities and equipment relating thereto are in reasonably
good condition and working order and adequate in quantity and quality for the
normal operation of the Property; (iii) no part of the Property has been
destroyed or damaged by fire or other casualty; and (iv) there are no
unsatisfied requests for repairs, restorations or alterations with regard to the
Property from any Tenant, lender, insurance provider or governmental authority.
(l) No work has been performed or is in progress at the Property, and
no materials will have been delivered to the Property, that might reasonably be
expected to provide the basis for a mechanic's, materialmen's or other lien
against the Property or any portion thereof.
(m) Other than the Business Agreements furnished to Purchaser pursuant
to Section 4.1(a), there are no material agreements or understandings (oral or
written) with respect to the Property or any portion thereof to which Seller is
a party (other than such items related solely to the conduct by Seller of its
business on the Property or Seller's other property or assets).
(n) No default or breach exists under any of the Business Agreements,
or any covenant, condition, restriction, right-of-way or easement affecting the
Property or any portion thereof.
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(o) There are no actions, suits or proceedings pending or, to the best
of Seller's knowledge, threatened against or affecting the Property or any
portion thereof, any of the Tenant Leases or relating to or arising out of the
ownership of the Property, or before any federal, state, county or municipal
department, commission, board, bureau or agency or other governmental
instrumentality, other than those disclosed to Purchaser pursuant to Section
4.1. All judicial proceedings concerning the Property will be finally dismissed
and terminated prior to Closing.
(p) The Property has free and unimpeded access to presently existing
public highways and/or roads (either directly or by way of perpetual easements),
and all approvals necessary therefor have been obtained and in full force and
effect. No fact or condition exists which would result in the termination of the
current access from the Property to any presently existing public highways
and/or roads adjoining or situated on the Property.
(q) There are no attachments, executions, assignments for the benefit
of creditors, or voluntary or involuntary proceedings in bankruptcy or under any
other debtor relief laws contemplated by or pending or threatened against Seller
or the Property.
(r) Except as set forth in the Disclosure Schedule and other than with
respect to activities in connection with or conditions arising strictly from
customary and ordinary use or maintenance of the Property by Seller and Tenants
in full compliance with any or all Hazardous Materials Law, to the best of
Seller's knowledge, there is not (i) any Hazardous Materials installed, used,
generated, manufactured, treated, handled, refined, produced, processed, stored
or disposed of, or otherwise on or under, the Property; (ii) any activity on the
Property which could cause (a) the Property to become a hazardous waste
treatment, storage or disposal facility within the meaning of any Hazardous
Materials Law, (b) a release or threatened release of Hazardous Materials from
the Property within the meaning of any Hazardous Materials Law, or (c) the
discharge of any Hazardous Materials into any watercourse, body of surface or
subsurface water or wetland, or the discharge into the atmosphere of any
Hazardous Materials which would require a permit under any Hazardous Materials
Law; (iii) any activity with respect to the Property which would cause a
violation or support a claim under any Hazardous Materials Law; (iv) any
investigation, administrative order, litigation or settlement with respect to
any Hazardous Materials relating to or affecting the Property; or (v) any notice
being served on Seller from any entity, governmental body or individual claiming
any violation of any Hazardous Materials Law, or requiring compliance with any
Hazardous Materials Law, or demanding payment or contribution for the
environmental damage or injury to natural resources. Seller has not obtained and
is not required to obtain, and Seller has no knowledge of any reason Purchaser
will be required to obtain, any permits, licenses, or similar authorizations to
occupy, operate or use the Improvements or any part of the Property by reason of
any Hazardous Materials Law.
(s) The Exchange Value is being allocated to the Real Property and the
portion of the Property which is considered to be personal property as set forth
on EXHIBIT J attached hereto.
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(t) All certificates of need or approvals or consents from any
governmental authorities necessary or appropriate for Seller's use of the
Property as currently used have been finally and properly obtained, and all
applicable appeal periods have lapsed with respect thereto, and no transfer or
reissuance of, or notice in connection with, any such certificate, approval or
consent is or will be required as a result of this Agreement or the consummation
of the transactions contemplated hereby.
(u) The number of parking spaces available for use in connection with
the Improvements complies with all applicable Laws.
(v) All documents and information delivered by Seller to Purchaser
pursuant to the provisions of this Agreement are true, correct and complete as
of the Date hereof and will be correct and complete as of the Closing Date,
except as set forth in this Agreement and in the disclosure schedule
accompanying this Agreement and initialed by the Parties (the "Disclosure
Schedule"). The Disclosure Schedule will be arranged in paragraphs corresponding
to the lettered paragraphs in this Section 6.1. From time to time after the
execution of this Agreement until the Closing, Seller shall deliver to Purchaser
one or more supplemental schedules setting forth all changes in the schedules,
and in previously delivered supplemental schedules, if any, and in any of the
representations and warranties made herein whether or not previously modified by
a schedule, arising out of matters discovered or occurring prior to the Closing.
Purchaser and its counsel shall have 30 days to object in writing to any
material information in any supplemental schedule. Failure by Purchaser to
notify Seller within such 30-day period of any objection to information provided
in the supplemental schedule prior to the Closing shall be deemed to be approval
thereof.
6.2 INDEMNITY OF SELLER. Subject to the provisions provided hereafter
limiting the liability of Seller, Seller hereby agrees to indemnify and defend,
at its sole cost and expense, and hold Purchaser, its successors and assigns,
harmless from and against and to reimburse Purchaser with respect to any and all
claims, demands, actions, causes of action, losses, damages, liabilities, costs
and expenses (including without limitation reasonable attorneys' fees and court
costs) of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by Purchaser at any time and from time
to time by reason of or arising out of (a) the breach of any representation or
warranty of Seller set forth in this Agreement, (b) the failure of Seller, in
whole or in part, to perform any obligation required to be performed by Seller
pursuant to this Agreement, or (c) except for the matters disclosed herein or in
the Disclosure Schedule, the ownership, construction, occupancy, operation, use
and maintenance of the Property prior to the Closing Date, or (d) the violation
on or before the Closing Date of any Hazardous Material Law in effect on or
before the Closing Date and any and all matters arising out of any act,
omission, event or circumstance existing or occurring on or prior to the Closing
Date (including, without limitation, the presence on the Property or release
from the Property of Hazardous Materials disposed of or otherwise released prior
to the Closing Date) which results in a violation of a Hazardous Materials Law,
regardless of whether the act, omission, event or circumstance constituted a
violation of any Hazardous Materials Law at the time of its existence or
occurrence. The provisions of this Section 6.2 shall survive the Closing of the
transaction contemplated by this Agreement and shall continue thereafter in full
force and effect for the benefit of Purchaser, its successors and assigns.
However, notwithstanding any provision of this Agreement to the contrary,
Purchaser may exercise any right or remedy Purchaser may have at law or in
equity should Seller fail to meet, comply with or perform its indemnity
obligations required by this Section 6.2.
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6.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. Purchaser
represents and warrants to Seller that:
(a) Purchaser has duly and validly authorized and executed this
Agreement, and has full right, power and authority to enter into this Agreement
and to consummate the actions provided for herein, and the joinder of no person
or entity will be necessary to purchase the Property from Seller at Closing.
(b) The execution by Purchaser of this Agreement and the consummation
by Purchaser of the transactions contemplated herein do not, and at the Closing
will not, result in any breach of any of the terms or provisions of or
constitute a default or a condition which upon notice or lapse of time or both
would ripen into a default under any indenture, agreement, instrument or
obligation to which Purchaser is a party, and do not constitute a violation of
any order, rule or regulation of any court or of any federal or state or
municipal regulatory body or administrative agency or other governmental body
having jurisdiction over Purchaser.
(c) Purchaser shall indemnify and hold Seller harmless from and against
any claims for any brokerage fee or commission, finder's fee or financial
advisory fee arising from or related to the transactions contemplated by this
Agreement and which is asserted by any person or entity claiming to have acted
as agent or a representative of Purchaser.
(d) All documents and information delivered by Purchaser to Seller
pursuant to the provisions of this Agreement are true, correct and complete as
of the Date hereof and will be correct and complete as of the Closing Date,
except as set forth in this Agreement and in the Disclosure Schedule. From time
to time after the execution of this Agreement until the Closing, Purchaser shall
deliver to Seller one or more supplemental schedules setting forth all changes
in the schedules, and in previously delivered supplemental schedules, if any,
and in any of the representations and warranties made herein whether or not
previously modified by a schedule, arising out of matters discovered or
occurring prior to the Closing. Seller and its counsel shall have 30 days to
object in writing to any material information in any supplemental schedule;
failure by Seller to notify Purchaser within such 30-day period of any objection
to information provided in the supplemental schedule prior to the Closing shall
be deemed to be approval thereof.
(e) Purchaser has, and at the Closing Purchaser will convey, transfer
and assign to Seller, title to the Exchange Property, free and clear of any
deeds of trust, mortgages, liens, encumbrances, leases, tenancies other than
such encumbrances and other exceptions to title (i) as existed on the date of
transfer of the same to Purchaser from an affiliate of Guarantor and Seller,
Mesa Psychiatric Hospital, Inc., an Arizona corporation ("Mesa") and (ii)
arising out of or in connection with the Lease Agreement dated as of April 12,
1995 (the "Mesa Lease"), between Purchaser, as lessor, and Mesa, as lessee.
Purchaser does not own any fixtures, intangible property, warranties,
engineering documents and permits related to the Exchange Property other than
the Exchange Personal Property that was transferred to Purchaser by Mesa.
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(f) To the best of Purchaser's knowledge, there are no actions, suits
or proceedings pending or threatened against or affecting the Exchange Property,
the Exchange Personal Property or any portion thereof, before any federal,
state, county or municipal department, commission, board, bureau or agency or
other governmental instrumentality.
ARTICLE 7
CONDITIONS TO PURCHASER'S AND SELLER'S OBLIGATIONS
7.1 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations of Purchaser
to purchase the Property from Seller and to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, as of the
Closing Date, of each of the following conditions:
(a) All of the representations and warranties of Seller set forth in
this Agreement shall be true as of the Closing Date in all material respects
except for changes expressly permitted or contemplated by the terms of this
Agreement.
(b) Seller shall have delivered, performed, observed and complied in
all material respects with, all of the items, instruments, documents, covenants,
agreements and conditions required by this Agreement to be delivered, performed,
observed and complied with by Seller prior to, or as of, the Closing Date.
(c) Neither Seller nor any Tenant shall be in receivership or
dissolution proceedings or have made any assignment for the benefit of
creditors, or admitted in writing its inability to pay its debts as they mature,
or have been adjudicated as bankrupt, or have filed a petition in voluntary
bankruptcy, a petition or answer seeking reorganization or an arrangement with
creditors under the federal bankruptcy law or any other similar law or statute
of the United States or any state and no such petition shall have been filed
against it.
(d) No material or substantial change shall have occurred with respect
to the condition, financial or otherwise, of the Property or Seller.
(e) Neither the Property nor any part thereof or interest therein shall
have been taken by execution or other process of law in any action prior to the
Closing Date.
(f) Purchaser shall be reasonably satisfied with its inspection of the
Property with respect to the physical condition thereof by agents or contractors
selected by Purchaser.
(g) Purchaser shall have received, in form acceptable to Purchaser,
evidence of compliance by the Property with all Permits required as of the Date
hereof and such other Permits as may be necessary or appropriate for the
operation of the Property for the current and intended use and for the
transactions contemplated by this Agreement and the Lease.
(h) All necessary approvals, consents and the like of third parties to
the validity and effectiveness of the transactions contemplated hereby shall
have been obtained.
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(i) Purchaser shall be reasonably satisfied that the Property is
sufficient and adequate for Seller to carry on the business now being conducted
thereon and that the Property is in good condition and repair as reasonably
required for the proper operation and use thereof in compliance with applicable
Laws and the requirements of applicable accreditation and licensing authorities.
(j) Purchaser shall be satisfied with all matters regarding title and
survey pursuant to Article 5 hereof.
(k) Purchaser shall have obtained an environmental site assessment
report covering the Property in form and content acceptable to Purchaser.
(l) No portion of the Property shall have been destroyed by fire or
casualty.
(m) No condemnation, eminent domain or similar proceeding shall have
been commenced or threatened with respect to any portion of the Property.
(n) Purchaser shall have received an appraisal satisfactory to
Purchaser in all respects, including without limitation a fair market value not
less than the Exchange Value.
(o) Seller shall have provided such representations, warranties and
consents as may be reasonably required by the United States Securities and
Exchange Commission (including, but not limited to, inclusion of financial
statements, financial information and other required information concerning
Seller or any affiliate of Seller in any United States Securities and Exchange
Commission filings made by Purchaser or any affiliate of Purchaser).
7.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event any
one or more of the conditions to Purchaser's obligations are not satisfied in
whole or in part as of the Closing Date, Purchaser, at Purchaser's option, shall
be entitled to: (a) terminate this Agreement by giving written notice thereto to
Seller, whereupon all moneys which have been delivered by Purchaser to Seller or
the Title Company (other than the Independent Consideration) shall be
immediately refunded to Purchaser and, except for the obligations set forth in
Section 4.2 hereof related to confidentiality, neither Purchaser nor Seller
shall have any further obligations or liabilities hereunder; (b) waive such
failure of condition and proceed to Closing hereunder; or (c) pursue such other
remedies as may be available to Purchaser.
7.3 CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller to
sell the Property to Purchaser and to consummate the transactions contemplated
by this Agreement are subject to the satisfaction, as of the Closing Date, of
each of the following conditions:
(a) The representations and warranties of Purchaser contained herein
shall be in all material respects true and accurate as of the Closing Date.
(b) Purchaser shall have delivered, performed, observed and complied in
all material respects with, all of the items, instruments, documents, covenants,
agreements and conditions required by this Agreement to be delivered, performed,
observed and complied with by Purchaser as of the Closing Date.
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(c) No statute, rule, regulation, order, decree or injunction shall
have been enacted, entered, promulgated or enforced by any court of competent
jurisdiction or United States governmental authority which prohibits the
consummation of the transactions contemplated by this Agreement.
(d) All action required to be taken by Purchaser to authorize the
execution, delivery, and performance of this Agreement and the other agreements
or documents related hereto, and the consummation of the transactions
contemplated hereby, shall have been duly and validly taken.
7.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In the event any one
or more of the conditions to Seller's obligations are not satisfied in whole or
in part as of the Closing, Seller, at Seller's option, shall be entitled to: (a)
terminate this Agreement by giving written notice thereto to Purchaser,
whereupon all moneys which have been delivered by Purchaser to Seller or the
Title Company (other than the Independent Consideration) shall be immediately
refunded to Purchaser and neither Purchaser nor Seller shall have any further
obligations or liabilities hereunder; or (b) waive such failure of conditions
and proceed to Closing hereunder.
ARTICLE 8
PROVISIONS WITH RESPECT TO THE CLOSING
8.1 SELLER'S CLOSING OBLIGATIONS. At Closing, Seller shall furnish and
deliver, or shall cause Guarantor to furnish and deliver, to the Title Company
and/or Purchaser the following:
(a) The Deed, Title Commitment obligating the Title Company to issue
the Title Policy subject only to the Permitted Exceptions, Xxxx of Sale,
Certificate of Non-Foreign Status, the Closing Certificate, the Guaranty and the
Lease, each duly executed and acknowledged by Seller or Guarantor, as the case
may be.
(b) An affidavit, agreement and indemnity executed by Seller and dated
as of the Closing Date, stating that there are no unpaid debts for any work that
has been done or materials furnished to the Property prior to and as of Closing
and stating that Seller shall indemnify, save and protect Purchaser and its
assigns harmless from and against any and all Claims, including court costs and
reasonable attorneys' fees related thereto, arising out of, in connection with,
or resulting from the same, up to and including the Closing Date, in form and
substance mutually acceptable to Seller and Purchaser.
(c) Certificates of casualty and fire insurance for the Property
required pursuant to the Lease showing Purchaser as additional insured and loss
payee thereunder, with appropriate provisions for 30 days' prior written notice
to Purchaser in the event of cancellation or termination of such policies.
(d) Updated Search Reports, dated not more than ten days prior to
Closing, evidencing no UCC-l Financing Statements or other filings in the name
of Seller with respect to the Property.
(e) Such affidavits, certificates or letters of indemnity as the Title
Company shall reasonably require in order to omit from its insurance policy all
exceptions for unfiled mechanic's, materialman's or similar liens.
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(f) Any and all transfer declarations or disclosure documents, duly
executed by the appropriate parties, required in connection with the Deed by any
state, county or municipal agency having jurisdiction over the Property or the
transactions contemplated hereby.
(g) Such instruments or documents as are necessary, or reasonably
required by Purchaser or the Title Company, to evidence the status and capacity
of Seller and the authority of the person or persons who are executing the
various documents on behalf of Seller in connection with the purchase and sale
transaction contemplated hereby.
(h) All costs and expenses payable by Seller pursuant to Section 9.2.
8.2 PURCHASER'S CLOSING OBLIGATIONS. At Closing, Purchaser shall
deliver to the Title Company and/or Seller the following:
(a) The Lease, duly executed and acknowledged by Purchaser.
(b) Such instruments as are necessary, or reasonably required by Seller
or the Title Company to evidence the authority of Purchaser to consummate the
transactions contemplated hereby and to execute and deliver the closing
documents on Purchaser's part to be delivered.
(c) A special warranty deed, xxxx of sale, closing certificate and
certificate of non-foreign status with respect to the Exchange Property, each in
substantially the same form as the Deed, the Xxxx of Sale, the Closing
Certificate and the Certificate of Non-Foreign Status, respectively.
(d) A termination of the Mesa Lease and any related guaranty.
ARTICLE 9
EXPENSES OF CLOSING
9.1 ADJUSTMENTS. There shall be no adjustment of taxes, assessments,
water or sewer charges, gas, electric, telephone or other utilities, operating
expenses, employment charges, premiums on insurance policies or other items that
are normally prorated, it being agreed and understood by the Parties that Seller
shall be obligated to pay such items under the terms of the Lease.
9.2 CLOSING COSTS. Seller shall pay all costs of closing, including
without limitation reasonable attorneys' fees and expenses for Purchaser and
Seller, all title examination fees and premiums for the Title Policy, the Search
Reports, the Survey, any environmental reports, appraisals, structural or
engineering reports, all state, municipal or other documentary or transfer taxes
payable in connection with the delivery of any instrument or document required
or contemplated by this Agreement or any agreement or commitment described or
referred to herein, and the charges for or in connection with the recording
and/or filing of any instrument or document required or contemplated by this
Agreement or any agreement or document described or referred to herein.
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ARTICLE 10
DEFAULT AND REMEDIES
10.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
(a) Seller's Default. Seller shall be deemed to be in default hereunder
upon the occurrence of any one or more of the following events: (i) any of
Seller's warranties or representations set forth herein shall be untrue in any
material aspect when made or at Closing; or (ii) Seller shall fail in any
material respect to meet, comply with, or perform any covenant, agreement or
obligation on its part required within the time limits and in the manner
required in this Agreement.
(b) Purchaser's Remedies. In the event Seller shall be deemed to be in
default hereunder Purchaser may, as its sole remedies: (i) terminate this
Agreement by written notice delivered to Seller on or before the Closing; or
(ii) enforce specific performance of this Agreement against Seller including
Purchaser's reasonable costs and attorneys fees in connection therewith. It is
understood and agreed that termination or specific performance as provided in
(i) and (ii) above constitute Purchaser's sole remedy against Seller, and that
Purchaser shall not be entitled to seek monetary damages from Seller or assert
any other remedy against Seller, except for the items to be paid by Seller
pursuant to Section 9.2 hereof.
10.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
(a) Purchaser's Default. Purchaser shall be deemed to be in default
hereunder upon the occurrence of any one or more of the following events: (i)
any of Purchaser's warranties or representations set forth herein shall be
untrue in any material respect when made or at Closing; or (ii) Purchaser shall
fail in any material respect to meet, comply with, or perform any covenant,
agreement or obligation on its part within the time limits and in the manner
required in this Agreement.
(b) Seller's Remedy. In the event Purchaser shall be deemed to be in
default hereunder, Seller, as Seller's sole and exclusive remedy for such
default, shall be entitled to terminate this Agreement and all rights of
Purchaser hereunder and to receive the Independent Consideration, it being
agreed between Purchaser and Seller that such sum shall be liquidated damages
for a default of Purchaser hereunder because of the difficulty, inconvenience,
and uncertainty of ascertaining actual damages for such default. If Seller shall
be entitled to the Independent Consideration in accordance with this Section
10.2, Purchaser agrees to deliver, on written request of Seller, such
instructions as may be reasonably necessary to cause the Title Company to
deliver the Independent Consideration to Seller. In such event, Purchaser will
pay the costs of the Survey, Title Commitment, Search Reports, appraisals and
any environmental survey, report or study, which items shall be and become
property of Purchaser.
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ARTICLE 11
MISCELLANEOUS
11.1 SURVIVAL. All of the representations, warranties, covenants,
agreements and indemnities (but not matters or items identified as conditions
for parties' obligation to close) of Seller and Purchaser contained in this
Agreement, to the extent not performed at the Closing, shall survive the Closing
and shall not be deemed to merge upon the acceptance of the Deed by Purchaser.
11.2 NOTICES. Any notices, demands, approvals and other communications
provided for herein shall be in writing and shall be delivered by telephonic
facsimile, overnight air courier, personal delivery or registered or certified
U.S. Mail with return receipt requested, postage paid, to the appropriate party
at its address as follows:
If to Purchaser:
CAPSTONE CAPITAL CORPORATION
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xx. Xxxxxx X. Xxxxxx
Sirote & Permutt, P.C.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seller:
MICHIGAN PSYCHIATRIC SERVICES, INC.
c/x Xxxxxx HealthCare, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Addresses for notice may be changed from time to time by written notice
to all other parties. Any communication will be effective (i) if given by mail,
upon the earlier of (a) three business days following deposit in a post office
or other official depository under the care and custody of the United States
Postal Service or (b) actual receipt, as indicated by the return receipt; (ii)
if given by telephone facsimile, when sent; and (iii) if given by personal
delivery or by overnight air courier, when delivered to the appropriate address
set forth.
11.3 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies and
constitutes the entire understanding between the parties with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements (oral or written) are merged into
this Agreement. Neither this Agreement nor any provision hereof may be waived,
modified, amended, discharged or terminated except by an instrument in writing
signed by the Party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
11.4 APPLICABLE LAW. This Agreement and the transactions contemplated
hereby shall be governed by and construed in accordance with the laws of the
state in which the Property is located.
11.5 CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, or limit the scope
or intent of this Agreement or any of the provisions hereof.
11.6 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal and personal representatives, successors, and
assigns.
11.7 EXTENSION OF DATES. Notwithstanding anything to the contrary
contained in this Agreement, if Seller shall fail to deliver any document or
item required pursuant to any of the terms and provisions of Article 4 and/or
Article 5 within the applicable time period required, Purchaser, at its option,
shall have the right to extend the date of expiration of the Review Period, and
correspondingly the date of Closing, by the number of days elapsing from the
date such items were required to be delivered and the date such items were
actually delivered to Purchaser; provided that Purchaser shall give Seller
notice of its intent to extend such dates. Nothing herein shall diminish
Seller's obligation to timely furnish such items.
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11.8 TIME IS OF THE ESSENCE. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is not
a Business Day, then, in such event, the time of such period shall be extended
to the next day which is a Business Day.
11.9 WAIVER OF CONDITIONS. Any Party may at any time or times, at its
election, waive any of the conditions to its obligations hereunder, but any such
waiver shall be effective only if contained in a writing signed by such Party.
No waiver by a Party of any breach of this Agreement or of any warranty or
representation hereunder by the other Party shall be deemed to be a waiver of
any other breach by such other Party (whether preceding or succeeding and
whether or not of the same or similar nature), and no acceptance of payment or
performance by a Party after any breach by the other Party shall be deemed to be
a waiver of any breach of this Agreement or of any representation or warranty
hereunder by such other Party, whether or not the first Party knows of such
breach at the time it accepts such payment or performance. No failure or delay
by a Party to exercise any right it may have by reason of the default of the
other Party shall operate as a waiver of default or modification of this
Agreement or shall prevent the exercise of any right by the first Party while
the other Party continues to be so in default.
11.10 BROKERS. Each Party hereby represents to the other Party that it
has not discussed this Agreement or the subject matter thereof with any real
estate broker or salesman so as to create any legal rights in any such broker or
salesman to claim a real estate commission or similar fee with respect to the
purchase or sale of the Property, and agrees to defend, indemnify and hold the
other Party harmless from any and all claims for any real estate commissions,
leasing fees or similar fees arising out of or in any way relating to a breach
of the foregoing representation.
11.11 RISK OF LOSS. Until the Closing Date, the risk of loss of any
portion of the Property shall be solely that of Seller. Risk of loss shall be
that of Purchaser from and after the Closing Date, at which xxxx Xxxxxx shall
deliver to Purchaser possession of the Property.
11.12 NO ASSUMPTION OF LIABILITIES. Purchaser shall not assume any of
the existing liabilities, indebtedness, commitments or obligations of any nature
whatsoever (whether fixed or contingent) of Seller in respect of the Property or
otherwise, except those expressly assumed herein.
11.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.14 OTHER TERMS. The term "document" is used in its broadest sense
and encompasses agreements, certificates, opinions, consents, instruments and
other written material of every kind. The word "including", when following any
general statement, term or matter shall not be construed to limit such
statement, term or matter to the specific terms or matters as provided
immediately following the word "including" or to similar items or matters,
whether or not non-limiting language (such as "without limitation", "but not
limited to", or words of similar import) as used with reference to the word
"including" or the similar items or matters, but rather shall be deemed to refer
to all other items or matters that could reasonably fall within the broadest
possible scope of the general statement, term or matter. The term "any" as a
modifier to any noun, shall be construed to mean "any and/or all" preceding the
same noun in the
21
25
plural. The terms "herein" "hereunder" and other similar compounds of the word
"here" refer to the entire document in which the term appears and not to any
particular provision or section of the document. In all cases where the Owner's
approval or consent is required hereunder, such approval or consent must be in
writing and, except as herein otherwise provided, may be withheld in the Owner's
sole and absolute discretion.
11.15 SINGULAR AND PLURAL REFERENCES. Reference to any party in the
singular, or as "him," "her," "it," "its," "itself," or other like references,
shall also be deemed to include the plural or the masculine or feminine
reference, as the case may be. References to any of the Parties in the plural,
or as "they," "them," "their," or other like references, shall also be deemed to
include the singular reference.
EXECUTED as of the date first written above to be effective as of the
Date hereof.
PURCHASER:
CAPSTONE CAPITAL CORPORATION
By /s/ Xxxx X. XxXxxxxxx
---------------------------------
Xxxx X. XxXxxxxxx
President
SELLER:
HAVENWYCK HOSPITAL, INC.
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
------------------------------
Title: Vice President
------------------------------
Seller's Tax Identification Number:
-----------------------------------
22
26
MICHIGAN PSYCHIATRIC SERVICES, INC.
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
------------------------------
Title: Vice President
------------------------------
Seller's Tax Identification Number:
-----------------------------------
23
27
LIST OF EXHIBITS
Exhibit A - Property Description
Exhibit A-1 - Exchange Property
Exhibit B - Xxxx of Sale and Assignment
Exhibit C - Certificate of Non-Foreign Status
Exhibit D - Closing Certificate
Exhibit E - Special Warranty Deed
Exhibit F - Permitted Exceptions
Exhibit G - Exchange Personal Property
Exhibit H - Intentionally Left Blank
Exhibit I - Seller's Personal Property
Exhibit J - Allocation of Exchange Value
Exhibit K - Survey Certificate
Disclosure Schedule
24
28
EXHIBITS
TO
AGREEMENT OF SALE AND PURCHASE
BY AND BETWEEN
HAVENWYCK HOSPITAL, INC.
AND
MICHIGAN PSYCHIATRIC SERVICES, INC.
AND
CAPSTONE CAPITAL CORPORATION
25
29
EXHIBIT A
PROPERTY DESCRIPTION
(Parcel 1)
Situated in the City of Auburn Hills, Oakland County, Michigan, described as:
Part of the Northwest 1/4 of Section 23, Town 3 North, Range 10 East, being more
particularly described as follows: Beginning at a point which is North 00
degrees 13 minutes 10 seconds East 1360.94 feet along the West line of Section
23, which is also the East line of Assessor's Plat No. 104 (liber 48, page 26
and 26a, Oakland County Records) from the West 1/4 corner of Xxxxxxx 00, Xxxx 0
Xxxxx, Xxxxx 00 Xxxx; thence along the West line of Section 23, 897.98 feet;
thence North 89 degrees 00 minutes 00 seconds East 270.00 feet; thence South 65
degrees 09 minutes 27 seconds East 538.14 feet; thence South 39 degrees 10
minutes 58 seconds East 292.62 feet; thence South 01 degrees 26 minutes 00
seconds West 135.00 feet; thence along the center line of Mt. Xxxxxxx Road
(University Drive), Southwesterly 177.16 feet along a curve concave curve to the
Northwest (Radius of 1084.04 feet, central angle 09 degrees 21 minutes 50
seconds, long chord bears South 67 degrees 41 minutes 35 seconds West 176.97
feet), and South 72 degrees 22 minutes 30 seconds West 817.91 feet to the point
of beginning.
Excepting the following described parcel for University Drive Right-of-Way.
Beginning at a point which is North 00 degrees 13 minutes 10 seconds East,
1360.94 feet along the West line of said Section 23, which is also the east line
of Assessor's Plat No. 104 (liber 48, page 26 and 26a, Oakland County Records)
from the West 1/4 corner of said Section 23; thence continuing along the West
line of said Section 23, North 00 degrees 13 minutes 10 seconds East 63.14 feet;
thence North 72 degrees 04 minutes 17 seconds East 867.83 feet; thence 128.76
feet along the arc of a curve to the left having a radius of 825.00 feet passing
through a central angle of 08 degrees 56 minutes 32 seconds with a long chord
bearing of North 67 degrees 36 minutes 01 seconds, East 128.63 feet; thence
South 01 degrees 26 minutes 00 seconds West, 64.50 feet; thence 177.16 feet
along the arc of a curve to the right having a radius of 1084.04 feet passing
through a central angle of 09 degrees 21 minutes 50 seconds with a long chord
bearing of South 67 degrees 41 minutes 35 seconds West, 176.97 feet; thence
South 72 degrees 22 minutes 30 seconds West, 817.91 feet to the point of
beginning.
Parcel Identification No. 00-00-000-000
Commonly known as: 0000 Xxxxxxxxxx Xxxxx
26
30
(Parcel 2)
Situated in the City of Auburn Hills, Oakland County, Michigan, described as:
Part of the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 00 East, described
as beginning at a point in the center line of Mt. Xxxxxxx Road located North 00
degrees 13 minutes 10 seconds East 1360.94 feet along the West line of Section
23, which is also the East line of Assessor's Plat No. 104 and North 72 degrees
22 minutes 30 seconds East 751.66 feet along the center line of Mt. Xxxxxxx Road
from the West 1/4 corner of said Section 23; thence from said point of beginning
North 72 degrees 22 minutes 30 seconds East 66.25 feet along the centerline of
Mt. Xxxxxxx Road; thence on a curve to the left (radius 1084.04) feet, delta
angle 9 degrees 46 minutes 41 seconds, Long Chord North 67 degrees 29 minutes 09
seconds East 184.78 feet) an arc distance of 185.00 feet along the center line
of Mt. Xxxxxxx Road; thence South 26 degrees 21 minutes 20 seconds East 281.15
feet; thence South 61 degrees 44 minutes 10 seconds West 205.78 feet to the
center line of Xxxxx Road; thence North 34 degrees 27 minutes 10 seconds West
313.56 feet along the center line of Xxxxx Road to the point beginning. Subject
to the rights of the public and of any governmental unit in any part thereof
taken, used or deeded for street, road or highway purposes.
Containing 1.520 acres more or less.
Parcel Identification No. 00-00-000-000
Commonly known as: 0000 Xxxxx Xxxx
(Parcel 3)
The East 190.75 feet of Lot 1 and all of Xxx 0, Xxxxxxxx'x Xxxx Xx. 000 as
recorded in Liber 48, Pages 26 and 26a of Plats, Oakland County Records, more
particularly described as: Beginning at the Southeast corner of Lot 2; thence
South 69 degrees 39 minutes 05 seconds West along the centerline of University
Drive 540.97 feet; thence North 01 degrees 40 minutes 58 seconds West 1,472.03
feet; thence North 88 degrees 14 minutes 06 seconds East 512.52 feet to a point
on the East line of Section 23; thence along said section line South 01 degrees
40 minutes 58 seconds East 1,299.64 feet to the point of beginning.
Excepting the following 2 parcels for University Drive Right-of-Way:
Commencing at the Southeasterly corner of Xxx 0, "Xxxxxxxx'x Xxxx Xx. 000",
subdivision of part of the Northeast 1/4 and part of the Southeast 1/4, Xxxxxxx
00, Xxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Pontiac, Oakland County, Michigan and
recorded in Liber 48 of Plats, Pages 26, and 26a, Oakland County Records, said
Southeasterly corner being on the centerline of University Drive (variable
width); thence North 01 degrees 40 minutes 58 seconds West, 34.83 feet along the
Easterly line of said Lot 1, also being the Westerly line of Lot 2 of said
"Assessor's Plat Not 104", to the point of beginning; thence South 69 degrees 39
minutes 05 seconds West 201.34 along the existing Northwesterly Right-of-Way
line of University Drive; thence North 01 degrees 40 minutes 58 seconds West
28.50 feet along the Westerly line of the Easterly 190.75 feet of said Lot 1;
thence North 69 degrees 39 minutes 05 seconds East 201.34 feet; thence South 01
degrees 40 minutes 58 seconds East 28.50 feet along said Easterly line of Lot 1
to the
27
31
point of beginning. Being a part of said Lot 1, also being 27.00 feet in width
and containing 5,436 square feet of land. Also being subject to easements and
restrictions of record, if any.
Commencing at the Southwesterly corner of Xxx 0, "Xxxxxxxx'x Xxxx Xx. 000" a
subdivision of part of the Northeast 1/4 and part of the Southeast 1/4, Xxxxxxx
00, Xxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Pontiac, Oakland County, Michigan and
recorded in Liber 48 of Plats, Pages 26 and 26a, Oakland County Records, said
Southwesterly corner being on the centerline of University Drive (variable
width); thence North 01 degrees 40 minutes 58 seconds West, 34.83 feet along the
Westerly line of said Lot 2, also being the Easterly line of Xxx 0 xx xxxx
"Xxxxxxxx'x Xxxx Xx. 000" to the point of beginning; thence continuing North 01
degrees 40 minutes 58 seconds East 28.50 feet along said Westerly line of Lot 2;
thence North 69 degrees 39 minutes 05 seconds East 339.63 feet; thence South 01
degrees 40 minutes 58 seconds East 28.50 feet along the Easterly line of said
Lot 2, also being the Easterly line of said "Assessor's Plat No. 104", also
being the East line of said Section 22, also being the Easterly limits of the
City of Pontiac; thence South 69 degrees 39 minutes 05 seconds West, 339.63 feet
along the existing Northwesterly Right- of-Way line of University Drive to the
point of beginning. Being a part of said Lot 2, also being 27.00 feet in width
and containing 9.170 square feet of land. Also being subject to easements and
restrictions of record, if any.
Subject to the riparian rights of the public in Xxxxxxxx Lake.
28
32
EXHIBIT A-1
REAL PROPERTY DESCRIPTION - EXCHANGE PROPERTY
That part of the East half of the Northwest quarter of the Northeast quarter of
Section 16, Township 1 North, Range 5 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona, described as follows:
Commencing at the Northeast corner of said Section 16, thence South 88 degrees
40 minutes 15 seconds West, 1253.68 feet to the Northeast corner of said East
half of the Northwest quarter of the Northeast quarter and the point of
beginning;
Thence South 00 degrees 10 minutes 08 seconds East, 698.01 feet along the East
line of said Northwest quarter of the Northeast quarter of the Northwesterly
Right-of-Way line of those certain premises described in instrument recorded in
Docket 9044, Page 917, records of Maricopa County, Arizona;
Thence along said Northwesterly Right-of-Way along a curve to the left having a
radius of 470.74 feet, a delta of 32 degrees 30 minutes 03 seconds, and a chord
bearing and distance of South 35 degrees 19 minutes 23 seconds West, 263.46
feet, to a Point of Spiral Curve;
Thence continuing along said Northwesterly Right-of-Way, along said spiral curve
to the left, having an "A" of 10 and a chord bearing and distance of South 14
degrees 10 minutes 49 seconds West, 115.49 feet, to a Point of Curve;
Thence continuing along said Northwesterly Right-of-Way along a curve to the
left having a radius of 3183.02 feet a delta of 00 degrees 52 minutes 34 seconds
and a chord bearing and distance of South 10 degrees 25 minutes 43 seconds West,
48.66 feet;
Thence along a non-tangent line, North 12 degrees 58 minutes 08 seconds West
(North 12 degrees 43 minutes West, Record) 381.00 feet to a point on the South
line of the North 695.00 feet of said Northwest quarter of the Northeast quarter
said point being South 88 degrees 40 minutes 15 seconds West (Record South 88
degrees 47 minutes West), 275.00 feet from the East line of said Northwest
quarter of the Northeast quarter;
Thence South 88 degrees 40 minutes 15 seconds West, 349.01 feet along said South
line of the North 695.0 feet;
Thence North 00 degrees 09 minutes 15 seconds West 695.15 feet, along a line
3.00 feet East of and parallel to the West line of said East half of the
Northwest quarter of the Northeast quarter to a point on the North line of said
Section 16;
Thence North 88 degrees 40 minutes 15 seconds East, 623.84 feet along the North
line of said Section 16 to the Point of Beginning;
29
33
EXCEPT the following described parcel:
Commencing at the Northeast Xxxxxx xx Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0
East; Thence South 88 degrees 40 minutes 15 seconds West continuing along the
North line of said Section 16, a distance of 1,253.66 feet to the point of
beginning;
Thence south 88 degrees 40 minutes 15 seconds West continuing along the North
line of said Section 16, a distance of 623.83 feet;
Thence South 00 degrees, 10 minutes three seconds East a distance of 162.62
feet;
Thence North 64 degrees 41 minutes 35 seconds East a distance of 196.89 feet;
Thence North 88 degrees 31 minutes 01 seconds East a distance of 445.59 feet;
Thence North 00 degrees 10 minutes 33 seconds West a distance of 81.40 feet to
the point of beginning.
30
34
EXHIBIT B
XXXX OF SALE AND ASSIGNMENT
STATE OF MICHIGAN )
:
OAKLAND COUNTY )
KNOW ALL MEN BY THESE PRESENTS THAT, HAVENWYCK HOSPITAL, INC., a
Michigan corporation, and MICHIGAN PSYCHIATRIC SERVICES, INC., a Michigan
corporation (collectively, "Seller"), for and in consideration of the sum of
$10.00 and other good and valuable consideration to it in hand paid by CAPSTONE
CAPITAL CORPORATION, a Maryland corporation ("Purchaser") has granted, sold,
assigned, transferred, conveyed, and delivered and does by these presents grant,
sell, assign, transfer, convey, and deliver unto the said Purchaser, all of
Seller's right, title and interest in and to the following described properties,
rights and interests located on, affixed to, and/or arising or used in
connection with that certain real property described in EXHIBIT A attached to
that certain Agreement of Sale and Purchase dated September __, 1998 by and
between Seller and Purchaser (the "Purchase Agreement") and incorporated herein
for all purposes (hereinafter referred to as the "Real Property" as defined in
the Purchase Agreement):
To the extent permitted or required by law, all Permits (as
defined in the Purchase Agreement) required in connection with the
ownership, planning, development, construction, use, operation or
maintenance of the Real Property or the transfer thereof from Seller to
Purchaser.
All of the Property (as defined in the Purchase Agreement)
which is not deemed to be real property.
TO HAVE AND TO HOLD the foregoing property unto the said Purchaser, its
successors and assigns, forever, and Seller does hereby bind itself and its
successors to warrant and forever defend, all and singular, the assigned Permits
and said property unto the said Purchaser, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof by, through or under Seller, but not otherwise. Seller and its
successors hereby warrants, represents, covenants and agrees with Purchaser as
follows:
(i) That Seller is the owner of the foregoing property, which property
is free and clear of any and all liens, security interests or other encumbrances
except the Permitted Exceptions (as defined in the Agreement) and attached
hereto as Schedule A and incorporated herein by reference for all purposes, and
this assignment is made and accepted expressly subject to the matters set forth
on EXHIBIT F attached to the Purchase Agreement;
35
(ii) That Seller shall indemnify and hold harmless Purchaser from and
against any and all liability, loss, damage, cost or expense, including
attorneys' fees, which Purchaser may suffer or incur by reason of any act or
cause of action occurring or accruing prior to the effective date hereof and
arising out of the ownership and/or operation of the Property by Seller, except
for (A) any obligations expressly assumed hereunder by Purchaser; (B) any
liability, loss, damage, cost or expense arising out of actions of Purchaser; or
(C) any matter set forth on Schedule A.
(iii) That Purchaser shall indemnify and hold harmless Seller from and
against any and all liability, loss, damage, cost or expense, including
attorneys' fees, which Seller may suffer or incur by reason of any act or cause
of action occurring or accruing subsequent to the effective date hereof and
arising out of the ownership and/or operation of the Property by Purchaser,
except (A) any obligations which are expressly retained by Seller pursuant to
the terms and provisions of a written agreement with Purchaser, and (B) any
liability, loss, damage, cost or expense arising out of the actions of Seller.
The agreements, covenants, warranties and representations herein set
forth shall be binding upon and shall inure to the benefit of Seller and
Purchaser and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Xxxx of Sale
and Assignment to be executed effective as of September __, 1998.
SELLER:
MICHIGAN PSYCHIATRIC SERVICES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
HAVENWYCK HOSPITAL, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
2
36
PURCHASER:
CAPSTONE CAPITAL CORPORATION
By
---------------------------------------
Xxxx X. XxXxxxxxx
President
3
37
EXHIBIT C
CERTIFICATE OF NON-FOREIGN STATUS
STATE OF ________ )
:
________________ COUNTY )
KNOW ALL MEN BY THESE PRESENTS THAT BEFORE ME, the undersigned
authority, on this day personally appeared ________________________ ("Affiant"),
________________________ of HAVENWYCK HOSPITAL, INC., a Michigan corporation
("Seller"), who after being duly sworn, upon Seller's oath did depose and state
under penalty of perjury that for purposes of Section 1445 of the Internal
Revenue Code of 1986, as amended, in connection with the sale, transfer and
conveyance of that certain property located in Oakland County, Michigan and more
particularly described on EXHIBIT A attached hereto and incorporated herein for
all purposes (the "Property"), and in order to inform CAPSTONE CAPITAL
CORPORATION, a Maryland corporation ("Purchaser") that withholding of tax is not
required upon the disposition of the Property by Seller:
(i) that Seller is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as these terms are defined in the Internal
Revenue Code and Income Tax Regulations);
(ii) that Seller's United States taxpayer identification number is
00-0000000;
(iii) that Seller's address is Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxxxxx 00000; and
(iv) that Seller understands that this Affidavit may be disclosed to
the Internal Revenue Service by Purchaser and that any false statement contained
herein could be punishable by fine, imprisonment or both.
Under penalties of perjury Affiant declares that he has examined this
Affidavit, that to the best of his knowledge and belief it is true, correct and
complete, and that Affiant has the authority to sign this Affidavit on behalf of
Seller.
Dated as of September ____, 1998.
4
38
HAVENWYCK HOSPITAL, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
STATE OF ________ )
________________ COUNTY )
I, the undersigned authority, a Notary Public in and for said county in
said state, hereby certify that ________________________, whose name as
________________ of HAVENWYCK HOSPITAL, INC., a Michigan corporation, is signed
to the foregoing instrument and who is known to me, acknowledged before me on
this day that, being informed of the contents of the said instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said corporation.
GIVEN under my hand and seal, this _____ day of ____________________,
1998.
[NOTARIAL SEAL] ----------------------------------------
Notary Public
My Commission Expires __________________
5
39
STATE OF _______ )
:
________________ COUNTY )
KNOW ALL MEN BY THESE PRESENTS THAT BEFORE ME, the undersigned
authority, on this day personally appeared ________________________ ("Affiant"),
________________________ of MICHIGAN PSYCHIATRIC SERVICES, INC., a Michigan
corporation ("Seller"), who after being duly sworn, upon Seller's oath did
depose and state under penalty of perjury that for purposes of Section 1445 of
the Internal Revenue Code of 1986, as amended, in connection with the sale,
transfer and conveyance of that certain property located in Oakland County,
Michigan and more particularly described on EXHIBIT A attached hereto and
incorporated herein for all purposes (the "Property"), and in order to inform
CAPSTONE CAPITAL CORPORATION, a Maryland corporation ("Purchaser") that
withholding of tax is not required upon the disposition of the Property by
Seller:
(i) that Seller is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as these terms are defined in the Internal
Revenue Code and Income Tax Regulations);
(ii) that Seller's United States taxpayer identification number is
00-0000000._____________;
(iii) that Seller's address is Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxxxxx 00000; and
(iv) that Seller understands that this Affidavit may be disclosed to
the Internal Revenue Service by Purchaser and that any false statement contained
herein could be punishable by fine, imprisonment or both.
Under penalties of perjury Affiant declares that he has examined this
Affidavit, that to the best of his knowledge and belief it is true, correct and
complete, and that Affiant has the authority to sign this Affidavit on behalf of
Seller.
Dated as of September ____, 1998.
MICHIGAN PSYCHIATRIC SERVICES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
6
40
STATE OF ________ )
__________COUNTY )
I, the undersigned authority, a Notary Public in and for said county in
said state, hereby certify that ________________________, whose name as
________________ of MICHIGAN PSYCHIATRIC SERVICES, INC., a Delaware corporation,
is signed to the foregoing instrument and who is known to me, acknowledged
before me on this day that, being informed of the contents of the said
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
GIVEN under my hand and seal, this _____ day of ____________________,
1998.
[NOTARIAL SEAL] --------------------------------------------
Notary Public
My Commission Expires ______________________
7
41
EXHIBIT D
CLOSING CERTIFICATE
The undersigned hereby certifies that the representations and
warranties contained in Article 6 of that certain Agreement of Sale and Purchase
(the "Agreement") dated September __, 1998 by and between MICHIGAN PSYCHIATRIC
SERVICES, INC., a Delaware corporation ("Seller"), and CAPSTONE CAPITAL
CORPORATION, a Maryland corporation ("Purchaser"), which representations and
warranties are incorporated herein as though set out in full herein, are true to
Seller's knowledge, except with respect to matters which have been disclosed on
the Disclosure Schedule of the Agreement, as currently in effect and correct as
of the date hereof, shall survive the consummation of the purchase and sale
transaction as contemplated by and for the time period provided in the Agreement
and shall not be deemed to merge upon the acceptance of the deed delivered in
connection with the consummation of such purchase and sale transaction.
This certificate is given to Purchaser with the realization and
understanding that all matters referenced above are material to the decision of
Purchaser to close said sale and purchase this date and Purchaser is acting in
reliance thereon.
Dated as of September _____, 1998.
MICHIGAN PSYCHIATRIC SERVICES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
HAVENWYCK HOSPITAL, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
8
42
STATE OF _______ )
________________ COUNTY )
I, the undersigned authority, a Notary Public in and for said county in
said state, hereby certify that ________________________, whose name as
________________ of MICHIGAN PSYCHIATRIC SERVICES, INC., a Delaware corporation,
is signed to the foregoing instrument and who is known to me, acknowledged
before me on this day that, being informed of the contents of the said
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
GIVEN under my hand and seal, this _____ day of ____________________,
1998.
[NOTARIAL SEAL] ------------------------------------------
Notary Public
My Commission Expires ____________________
9
43
EXHIBIT E
SPECIAL WARRANTY DEED
STATE OF MICHIGAN )
:
OAKLAND COUNTY )
KNOW ALL MEN BY THESE PRESENTS, that________________________________, a
Michigan corporation (herein called "Grantor"), for and in consideration of the
sum of $10.00, and other good and valuable consideration paid to Grantor by
CAPSTONE CAPITAL CORPORATION, a Maryland corporation (herein called "Grantee"),
the receipt of which is hereby acknowledged, does hereby grant, sell, bargain,
convey, assign, and deliver to Grantee the real property in the City of
____________, Oakland County, Michigan, as more particularly described in
EXHIBIT A attached hereto and made a part hereof, together with all and singular
rights and appurtenances pertaining thereto (all of such real property, rights,
and appurtenances being herein called the "Property"), subject, however, to the
liens, easements, and other matters set forth in EXHIBIT B attached hereto and
made a part hereof, and any other matters affecting the Property and appearing
of record in the real property records of Oakland County, Michigan (all of such
liens, easements, and other matters being herein called the "Permitted
Exceptions"). Grantor grants to Grantee the right to make all of the division(s)
under section 108 of the Land Division Act, Act. No. 288 of the Public Acts of
1967. The Property may be located within the vicinity of farm land or a farm
operation. Generally accepted agricultural and management practices which may
generate noise, dust, odors, and other associated conditions may be used and are
protected by the Michigan Right to Farm Act.
TO HAVE AND TO HOLD the Property unto Grantee, its heirs, successors,
and assigns forever, and Grantor does hereby bind itself and its heirs,
successors, and assigns to warrant and forever defend all and singular the
Property unto Grantee, its heirs, successors, and assigns, against every person
whomsoever lawfully claiming, or to claim the same, or any part thereof, by,
through or under Grantor and subject only to the Permitted Exceptions.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor
as of September __, 1998.
1
44
WITNESS GRANTOR
------------------------------ -----------------------------------
Name
WITNESS
By:
----------------------------------------
------------------------------ Name:
Name --------------------------------------
Title:
-------------------------------------
STATE OF ________ )
________________ COUNTY )
I, the undersigned authority, a Notary Public in and for said county in
said state, hereby certify that ________________________, whose name as
________________ of a Michigan corporation, is signed to the foregoing
instrument and who is known to me, acknowledged before me on this day that,
being informed of the contents of the said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
GIVEN under my hand and seal, this _____ day of ____________________,
1998.
[NOTARIAL SEAL] ----------------------------------------------
Notary Public
My Commission Expires ________________________
2
45
EXHIBIT F
PERMITTED EXCEPTIONS
1. Payment of any taxes not yet due and payable.
2. Subject to that certain Right-of-Way granted to the City of Auburn
Hills over the Northwesterly 10.30 feet of the Southeasterly 60.30 feet
of Parcel 1, bordering University Drive, as more fully described in an
unrecorded Quit Claim Deed wherein Havenwyck Hospital, Inc. is the
grantor, dated May 25, 1995.
3. Subject to that certain Right-of-Way granted to the City of Pontiac
over the Northwesterly 27 feet of the Southeasterly 60 feet of Parcel
3, bordering University Drive, as more fully described in an unrecorded
Warranty Deed wherein Michigan Psychiatric Services, Inc., a/k/a
Havenwyck Hospital, a Michigan Corporation is the grantor, dated
December 5, 1997.
4. Rights of the public and of any governmental unit in any part thereof
taken, used or deeded for street, road or highway purposes for Xxxxx
Road.
(Parcel 2)
5. Rights, if any, of riparian owners and the public to use the surface,
sub-surface and bed of Xxxxxxxx Lake for purposes of navigation and
recreation.
(Parcels 1 and 3)
6. Any adverse claims based on the assertion that the bed of Xxxxxxxx Lake
has changed location as a result of other than natural causes.
(Parcels 1 and 3)
7. Easement for and right to erect, construct and maintain a line of poles
and ancillary equipment vested in the Michigan State Telephone Company
by instrument dated February 1, 1917 and recorded February 28, 1917 in
liber 3 of Miscellaneous Records, page 232.
(Parcels 1 and 2)
8. Subject to easement for highway purposes as to University Drive and the
terms, conditions and provisions contained therein vested in the Board
of County Road Commissioners of the County of Oakland by instrument
dated October 22, 1952 and recorded December 4, 1952 in liber 2943,
page 32.
(Parcels 1 and 2)
3
46
9. Easement for the installation, repair, replacement and maintenance of
sanitary sewer lines vested in the Charter township of Pontiac, a
Michigan constitutional corporation, by instrument dated September 3,
1982 and recorded September 28, 1982 in liber 8248, page 127.
(Parcel 1)
10. Easement for the installation, repair, replacement and maintenance of
watermain lines vested in the Charter Township of Pontiac, a Michigan
constitutional corporation, by instrument dated September 3, 1982 and
recorded September 28, 1982 in liber 8248, page 129.
(Parcel 1)
11. Easement for the construction, operation, maintenance, repair and/or
replacement of the Joachim Drain and the terms, conditions and
provisions contained therein vested in the Joachim Drain Drainage
District by instrument dated April 26, 1983 and recorded May 25, 1983
in liber 8382, page 750 and by instrument dated April 26, 1983 and
recorded May 25, 1983 in liber 8382, page 755.
(Parcel 1)
12. A portion of subject property lies within a 100 year flood plain
contour established by D.N.R. (elevation 909.60), and Xxxxxxxx Drain,
which contains no improvements, as shown on survey of Xxxxxxx &
Xxxxxxxx, Inc., dated October 18, 1988 and last revised on September
15, 1997, Job No. 12917.
NOTE: The above is given for informational purposes only and will not
be shown on final policy.
(Parcels 1 and 3)
13. The following matters as disclosed by survey prepared by Xxxxxxx &
Xxxxxxxx, Inc., dated October 18, 1988 and last revised on September
15, 1997, Job No. 12917, latest revision September 10, 1998.
(Parcel 1)
a) concrete curb at the West side of subject property.
b) unrecorded 10 foot wide easement given to the City of Auburn Hills.
c) existing 8" water main reserved over subject property.
d) existing 10" sanitary sewer line reserved over subject property.
e) sanitary manhole(s) reserved over subject property.
4
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f) existing storm sewers and manholes reserved over subject property.
g) 6' chain link fence encroaching on University Drive Right of Way.
14. Rights, if any, of others to the use of existing bituminous parking at
West side of Parcel 1 as disclosed by survey of Xxxxxxx & Xxxxxxxx,
Inc., dated October 18, 1988 and last revised on September 15, 1997,
Job No. 12917, latest revision September 10, 1998.
(Parcel 1)
15. Gas main, water main, hydrant, utility poles and storm drain as
disclosed on survey prepared by Xxxxxxx & Xxxxxxxx, Inc., being Job No.
12919 dated October 18, 1988, latest revision September 10, 1998.
(Parcel 2)
16. Encroachment of bituminous parking and curb over the property adjoining
Parcel 2 to the South, disclosed in the survey prepared by Xxxxxxx &
Xxxxxxxx, Inc., Job No. 12918, dated October 18, 1988.
(Parcel 2)
17. Easement for the construction and maintenance of sewers, drains or
water mains vested in the City of Pontiac, a municipal corporation, by
instrument dated December 30, 1961 and recorded January 22, 1962 in
liber 4267, page 475 and by instrument dated December 30, 1961,
recorded January 22, 1962 in liber 4267, page 479.
(Parcel 3)
18. Agreement with easements and restrictions in favor of Michigan Xxxx
Telephone Company for the installation and maintenance of communication
facilities and ancillary equipment as contained in the instrument
recorded in liber 4897, page 114.
(Parcel 3)
19. Easement for the construction, operation, maintenance, repair and/or
replacement of the Joachim Relief Drains and the terms, conditions and
provisions contained therein vested in the Joachim Relief Drains
Drainage District by instrument dated April 13, 1972 and recorded May
15, 1972 in liber 5866, page 317, and by instrument recorded on in
liber 8382, page 755.
(Parcel 3)
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20. Easement for the construction, operation, maintenance, repair and/or
replacement of the Joachim Drain and the terms, conditions and
provisions contained therein vested in the Joachim Drain Drainage
District by instrument dated July 19, 1983 and recorded August 10, 1983
in liber 8440, page 5 and by the instrument dated July 18, 1983,
recorded August 10, 1983 in liber 8440, page 12, and by instrument
recorded _________ in liber 8413, page 700.
(Parcel 3)
21. Easement for Drainage Purposes granted to the City of Auburn Hills, as
more fully described in an unrecorded Quit Claim Deed wherein Havenwyck
Hospital is the grantor, dated May 25, 1995.
(Parcel 3)
22. Rights of others to use the bituminous drive for ingress and egress to
and from the Havenwyck Hospital parking lot, if any, as disclosed on
survey prepared by Xxxxxxx & Xxxxxxxx, Inc., Job No. 12918, dated
October 18, 1988, latest revision September 10, 1998.
(Parcel 3)
23. Encroachment of bituminous parking lot on the Easterly portion of the
property as disclosed on survey prepared by Xxxxxxx & Xxxxxxxx, Inc.,
Job No. 12918, dated October 18, 1988, last revision September 10,
1998.
(Parcel 3)
24. Rights or claims of parties in possession not shown of record.
25. Should the deed required in schedule B, Section I, Paragraph 4,5 and 6,
contain the statement provided for in Section 109 (3) of the
Subdivision Control Act of 1967, as amended, the policy(s) to be issued
pursuant to this Commitment will contain the following exception:
Terms, conditions and provisions contained in the instrument recorded
___________ in Liber _______, Page __, as same pertain to the transfer
of divisions under Section 109(3) of the Subdivision Control Act of
1967, as amended.
26. Liens for any tax and/or assessment which become due and payable on or
after the effective date of this Commitment.
27. Lease between Havenwyck Hospital, Inc. and Mamoun DabGaugh, M.D., dated
January 4, 1997.
28. Lease between Havenwyck Hospital, Inc. and Xxxxxxxxx X. Xxxxxx, M.D.,
dated January 26, 1996.
29. Lease between Havenwyck Hospital, Inc. and Doopyo Hong, M.D., dated
dated January 8, 1993.
29. Lease between Havenwyck Hospital, Inc. and Xxxxx X. Xxxxxxx, M.D.,
dated January 8, 1996.
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50
EXHIBIT G
EXCHANGE PERSONAL PROPERTY
All property covered by that certain Xxxx of Sale dated the date hereof from
Capstone to Mesa Psychiatric Hospital, Inc.
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EXHIBIT H
INTENTIONALLY LEFT BLANK
8
52
EXHIBIT I
SELLER'S PERSONAL PROPERTY
NONE.
53
EXHIBIT J
ALLOCATION OF EXCHANGE VALUE
PERSONAL PROPERTY $ 0.00
REAL PROPERTY $ 9,850,000.00
54
EXHIBIT K
SURVEYOR'S CERTIFICATE
Date ____________________
This survey is made for the benefit of Capstone Capital Corporation,
________________________ and Commonwealth Land Title Insurance Company.
I, ______________________________, Registered Land Surveyor do hereby
certify to the aforesaid parties, as of the date set forth above that I have
made a careful survey of a tract of land described as follows:
legal description
I further certify that:
1. The accompanying survey was made on the ground and correctly shows the
location of all buildings, structures and other improvements situated on the
above premises; the print of survey reflects boundary lines of the described
property which "close" by mathematical calculation; the courses and distances
shown on the survey are correct; the size and location of the buildings and
improvements are correct as shown and are all within the boundary lines of the
property; there are no easements, encroachments or rights-of-way of which the
undersigned has been advised, or appearing from a careful physical inspection of
the property, other than those shown and depicted on the survey; and that the
property described hereon is the same as the property described in
____________________ Commitment Number ____________________, dated
____________________, and that all easements, covenants and restrictions
referenced in said title commitment have been plotted hereon or otherwise noted
as to their effect on the subject property; that there are no building
encroachments on the subject property or upon adjacent land abutting said
property unless shown hereon.
2. This map or plat and the survey on which it is based were made in
accordance with "Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys," jointly establishing and adopted by ALTA and ACSM in 1992 and meets
the accuracy requirements of an Urban Survey, as defined therein, and including
Items 1-4, 6-11 and 13 in Table A contained therein.
3. Said described property is located within an area having a Zone
Designation _____ by the Federal Emergency Management Agency (FEMA), on Flood
Insurance Rate Map Number _____, in Oakland County, State of Michigan, which is
the current Flood Insurance Rate Map for the community in which said premises is
situated.
4. All set back, side yard and rear yard lines shown on the recorded
plat or set forth in the applicable zoning ordinance are shown on the survey.
5. The property has access to ____________________, a dedicated public
street or highway.
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6. The number of striped parking spaces on the property is _____.
-------------------------------------
Registered Land Surveyor No. ________
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DISCLOSURE SCHEDULE
1. Asbestos Air Monitoring Report prepared by Michigan Environmental
Auditors, Inc. (Project Dates: September 10, 11 and 14, 1998).
2. Asbestos Inspection Report prepared by Michigan Environmental Auditors,
Inc. (Inspection Date: August 7, 1998).
3. Lead-Based Paint Inspection Report prepared by Michigan Environmental
Auditors, Inc. (Inspection Date: August 7, 1998).
4. Phase I Environmental Site Assessment prepared by Xxxxx Environmental
Consulting, L.L.C. dated July 24, 1998.
5. Summary of Environmental Services, prepared by Michigan Environmental
Auditors, Inc., dated September 18, 1998.
