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Exhibit 2.20
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (THIS "AGREEMENT") IS MADE AND
ENTERED INTO AS OF THE "EFFECTIVE DATE" (AS DEFINED IN SUBPARAGRAPH 1.2) BY AND
AMONG CRESCENT REAL ESTATE FUNDING VII, L.P., A DELAWARE LIMITED PARTNERSHIP
(HEREINAFTER REFERRED TO AS "SELLER"), AND RAMSAY YOUTH SERVICES, INC., A
DELAWARE CORPORATION (HEREINAFTER REFERRED TO AS "PURCHASER").
IN CONSIDERATION OF THE AGREEMENTS HEREIN CONTAINED, THE PARTIES AGREE
AS FOLLOWS:
1. PROPERTY/EXCLUDED ASSETS.
1.1 PROPERTY. SELLER AGREES TO SELL AND CONVEY AND PURCHASER AGREES TO
PURCHASE AND TAKE TITLE TO: (A) THOSE CERTAIN PARCELS OF REAL ESTATE LYING AND
BEING IN THE COUNTY OF MANATEE, STATE OF FLORIDA, AND EACH BEING MORE
PARTICULARLY DESCRIBED ON EXHIBIT A-1 AND EXHIBIT A-2 ATTACHED HERETO
(COLLECTIVELY, THE "LAND") AND ALL IMPROVEMENTS SITUATED THEREON (THE
"IMPROVEMENTS") (THE LAND AND THE IMPROVEMENTS ARE SOMETIMES HEREIN COLLECTIVELY
CALLED THE "REAL PROPERTY"), (B) ALL OF SELLER'S RIGHT, TITLE, AND INTEREST, IF
ANY, IN ALL ITEMS OF PERSONAL PROPERTY PRESENTLY ATTACHED TO, PLACED OR SITUATED
UPON THE LAND AND/OR THE IMPROVEMENTS (THE "PERSONALTY"), BUT SPECIFICALLY
EXCLUDING ANY ITEMS OF PERSONAL PROPERTY OWNED BY ANY TENANT, (C) ALL RIGHT,
TITLE AND INTEREST OF SELLER IN AND TO ALL RIGHTS, PRIVILEGES, EASEMENTS,
HEREDITAMENTS AND APPURTENANCES TO THE REAL PROPERTY, AND (D) THE RIGHT, TITLE
AND INTEREST OF SELLER IN AND TO THE LAND LYING IN THE BED OF ANY STREET, ROAD,
AVENUE OR ALLEY, OPEN OR PROPOSED, PUBLIC OR PRIVATE, IN FRONT OF OR ADJOINING
THE LAND TO THE CENTER LINE THEREOF. THE REAL PROPERTY AND THE INTERESTS
DESCRIBED IN SUBPARTS (C) AND (D) OF THE PRECEDING SENTENCE ARE HEREINAFTER
CALLED "REAL PROPERTY INTERESTS". THE REAL PROPERTY INTERESTS AND THE PERSONALTY
ARE SOMETIMES COLLECTIVELY CALLED THE "PROPERTY".
1.2 EXCLUDED ASSETS. THE PROPERTY TO BE CONVEYED BY SELLER TO PURCHASER
HEREUNDER INCLUDES ONLY THE LAND, IMPROVEMENTS AND PERSONALTY SPECIFICALLY
DESCRIBED IN PARAGRAPH 1.1. THE PROPERTY DOES NOT INCLUDE ANY OTHER PROPERTY
("EXCLUDED ASSETS"), WHETHER REAL OR PERSONAL, TANGIBLE OR INTANGIBLE, OF ANY
KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION ANY PROPERTY OR ASSETS UTILIZED IN
OR GENERATED BY THE BUSINESS CONDUCTED AT THE PROPERTY PRIOR TO THE CLOSING)
OTHER THAN WHAT IS SPECIFICALLY DESCRIBED IN THIS PARAGRAPH 1.2. PURCHASER HAS
ENTERED INTO AN AGREEMENT ("CHARTER AGREEMENT") WITH CHARTER BEHAVIORAL HEALTH
SYSTEMS, LLC AND CERTAIN OF ITS WHOLLY-OWNED SUBSIDIARIES (COLLECTIVELY,
"CHARTER") TO ACQUIRE CERTAIN OF THE BUSINESS ASSETS DESCRIBED IN THE CHARTER
AGREEMENT ("BUSINESS ASSETS"). PURCHASER ACKNOWLEDGES THAT SELLER SHALL HAVE NO
LIABILITY ARISING OUT OF ANY FAILURE BY CHARTER TO PERFORM ITS OBLIGATIONS
PURSUANT TO THE CHARTER AGREEMENT OR ANY BREACH OF THE REPRESENTATIONS OR
WARRANTIES MADE BY CHARTER PURSUANT TO THE CHARTER AGREEMENT. AS USED IN THIS
AGREEMENT, THE "EFFECTIVE DATE" MEANS THE DATE WHICH IS THE
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LATER OF THE DATE ON WHICH: (I) THIS AGREEMENT IS EXECUTED BY BOTH SELLER AND
PURCHASER OR (II) THE CHARTER AGREEMENT IS EXECUTED BY BOTH CHARTER AND
PURCHASER.
2. PURCHASE PRICE. THE PURCHASE PRICE OF THE PROPERTY (HEREINAFTER REFERRED TO
AS THE "PURCHASE PRICE") SHALL BE THE SUM OF $7,700,000.00.
2.1 DEPOSIT. PRIOR TO THE EXECUTION OF THIS AGREEMENT BY RAMSAY, RAMSAY
HAS DELIVERED A CASHIER'S CHECK TO THE TITLE COMPANY (HEREINAFTER DEFINED) IN
THE AMOUNT OF $87,600 (HEREINAFTER REFERRED TO AS THE "DEPOSIT") MADE PAYABLE TO
REPUBLIC TITLE OF TEXAS, INC. ("TITLE COMPANY"), AS AGENT OF FIRST AMERICAN
TITLE INSURANCE COMPANY. THE DEPOSIT AND ANY INTEREST THEREON IS HEREINAFTER
REFERRED TO AS "▇▇▇▇▇▇▇ MONEY". TITLE COMPANY SHALL DEPOSIT THE ▇▇▇▇▇▇▇ MONEY
INTO AN INTEREST-BEARING MONEY MARKET ACCOUNT MAINTAINED AT A FEDERALLY INSURED
BANK OR SAVINGS AND LOAN LOCATED IN TEXAS APPROVED BY SELLER AND PURCHASER. ALL
INTEREST EARNED SHALL BE REPORTED TO THE INTERNAL REVENUE SERVICE AS THE INCOME
OF PURCHASER. PURCHASER SHALL PROMPTLY EXECUTE SUCH DOCUMENTS AS TITLE COMPANY
MAY REASONABLY REQUEST IN ORDER TO PROPERLY REPORT SUCH INCOME. SUCH ACCOUNT
SHALL HAVE NO PENALTY FOR EARLY WITHDRAWAL. IF THE TRANSACTION CONTEMPLATED
HEREBY IS CONSUMMATED IN ACCORDANCE WITH THE TERMS AND PROVISIONS HEREOF, THE
▇▇▇▇▇▇▇ MONEY SHALL BE PAID TO SELLER AND CREDITED AGAINST THE PURCHASE PRICE.
IF THE TRANSACTION IS NOT SO CONSUMMATED, THE ▇▇▇▇▇▇▇ MONEY SHALL BE HELD AND
DELIVERED BY THE TITLE COMPANY AS HEREINAFTER PROVIDED.
2.2 PAYMENT OF PURCHASE PRICE. THE PURCHASE PRICE, LESS CREDIT FOR SUCH
CREDITS, PRORATIONS AND ADJUSTMENTS AS ARE PROVIDED HEREIN, SHALL BE PAID AT
CLOSING (DEFINED IN PARAGRAPH 3.1) BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE
FUNDS TO TITLE COMPANY'S ESCROW ACCOUNT FOR DISBURSEMENT IN ACCORDANCE WITH THIS
AGREEMENT.
3. CLOSING.
3.1 CLOSING/CONVEYANCE DOCUMENTS. THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT (THE "CLOSING") SHALL OCCUR BY DELIVERY BY SELLER
TO PURCHASER OF A PROPERLY EXECUTED: (A) WARRANTY DEED OR OTHER APPROPRIATE
CONVEYANCE DOCUMENT (HEREINAFTER REFERRED TO AS THE "DEED") CONVEYING THE REAL
PROPERTY TO PURCHASER, AND (B) ▇▇▇▇ OF SALE AND ASSIGNMENT OR OTHER APPROPRIATE
CONVEYANCE DOCUMENT (HEREINAFTER REFERRED TO AS THE "▇▇▇▇ OF SALE") CONVEYING
THE PERSONALTY TO PURCHASER IN CONSIDERATION OF THE PAYMENT BY PURCHASER TO
SELLER OF THE PURCHASE PRICE AND UPON PERFORMANCE OF ALL OF THE OTHER
OBLIGATIONS INCURRED UNDER THIS AGREEMENT, AT THE OFFICE OF TITLE COMPANY
LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, AT 10:00 A.M. ON
THE CLOSING DATE. "CLOSING DATE" MEANS THE DATE DESIGNATED BY SELLER BY
DELIVERING WRITTEN NOTICE ("CLOSING NOTICE") TO PURCHASER WHICH DATE IS: (A) NO
EARLIER THAN THE LATER OF JULY 1, 2000 OR FIVE (5) BUSINESS DAYS AFTER THE
DELIVERY OF THE CLOSING NOTICE; OR (B) NO LATER THAN AUGUST 15, 2000. THE
CLOSING NOTICE SHALL SET FORTH A CLOSING DATE WHICH SHALL NOT BE DIFFERENT FROM
THE DATE AS MAY BE SET FOR THE CLOSING UNDER THE CHARTER AGREEMENT PURSUANT TO
ITS TERMS. SELLER AND BUYER SHALL NOT BE OBLIGATED TO ATTEND CLOSING AND SHALL
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SUBMIT THE DOCUMENTS REQUIRED OF IT BY CERTIFIED MAIL, UPS, FEDERAL EXPRESS, OR
OTHER SIMILAR DELIVERY SERVICE. THE FORM OF THE DEED AND ▇▇▇▇ OF SALE SHALL
CONFORM TO THE REQUIREMENTS OF THE STATE IN WHICH THE REAL PROPERTY IS SITUATED
AND THE WARRANTY OF TITLE SET FORTH THEREIN SHALL BE LIMITED TO A WARRANTY
AGAINST CLAIMS ARISING BY, THROUGH OR UNDER SELLER BUT NOT OTHERWISE. SUBJECT TO
THE FOREGOING, THE DEED AND ▇▇▇▇ OF SALE SHALL BE IN THE FORMS PREPARED BY
SELLER'S COUNSEL AND APPROVED BY PURCHASER WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED.
3.2 CLOSING DOCUMENTS. AT CLOSING, THE FOLLOWING DOCUMENTS SHALL BE
EXECUTED AND DELIVERED TO THE TITLE COMPANY TO BE HELD IN ESCROW PENDING
COMPLETION AND FUNDING:
3.2.1 AUTHORITY OF SELLER. SELLER SHALL DELIVER TO PURCHASER
SATISFACTORY EVIDENCE OF ITS DUE AND PROPER AUTHORITY AND POWER TO PERFORM ITS
OBLIGATIONS HEREUNDER AND TO EXECUTE AND DELIVER ALL DOCUMENTS REQUIRED HEREBY.
3.2.2 AUTHORITY OF PURCHASER. PURCHASER SHALL DELIVER TO
SELLER SATISFACTORY EVIDENCE OF ITS DUE AND PROPER AUTHORITY AND POWER TO
PERFORM ITS OBLIGATIONS HEREUNDER AND TO EXECUTE AND DELIVER ALL DOCUMENTS
REQUIRED HEREBY.
3.2.3 DEED. SELLER SHALL EXECUTE AND DELIVER THE DEED
CONVEYING THE REAL PROPERTY TO PURCHASER.
3.2.4 ▇▇▇▇ OF SALE. SELLER SHALL EXECUTE AND DELIVER THE ▇▇▇▇
OF SALE CONVEYING SELLER'S RIGHT TITLE AND INTEREST TO THE PERSONALTY TO
PURCHASER.
3.2.5 FIRPTA AFFIDAVIT. SELLER SHALL EXECUTE AND DELIVER TO
PURCHASER A CERTIFICATE CERTIFYING THAT SELLER IS NOT A FOREIGN PERSON,
CORPORATION OR PARTNERSHIP OR STATE WITHIN THE MEANING OF SECTION 1445 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
3.2.6 OTHER REQUIRED DOCUMENTS. SELLER AND PURCHASER SHALL
EXECUTE SUCH OTHER DOCUMENTS AS MAY BE: (I) REQUIRED BY THE LAW OF THE
JURISDICTION IN WHICH THE REAL PROPERTY IS LOCATED OR (II) REQUESTED BY THE
TITLE COMPANY.
3.3 CERTAIN DEFINITIONS. AS USED HEREIN, THE TERM:
"BANKRUPTCY COURT" MEANS THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE.
"BANKRUPTCY PROCEEDING" MEANS COLLECTIVELY THE PROCEEDINGS
NAMING CHARTER AND CERTAIN OF ITS AFFILIATES AS "DEBTOR" CURRENTLY PENDING IN
THE BANKRUPTCY COURT BEING NUMBERED 00-989 THROUGH 00-1089.
"CHARTER AFFILIATES" MEANS THOSE AFFILIATES OF CHARTER WHO
ARE NAMED AS A "DEBTOR" IN THE BANKRUPTCY PROCEEDING.
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"CHARTER AGREEMENT CLOSING" MEANS THE EXECUTION AND DELIVERY
OF DOCUMENTS AND THE PAYMENT OF CONSIDERATION NECESSARY FOR THE ASSIGNMENT OF
THE BUSINESS ASSETS IN ACCORDANCE WITH THE TERMS OF THE CHARTER AGREEMENT.
"CLOSING OBLIGATIONS" MEANS THE PAYMENT OF THE PURCHASE PRICE
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND THE EXECUTION AND DELIVERY OF
THE DOCUMENTS DESCRIBED IN PARAGRAPH 3.2.
"SELLER PARTIES" MEANS SELLER AND ANY AFFILIATE OF SELLER AND
ANY OFFICERS, DIRECTORS, PARTNERS AND EMPLOYEES OF SELLER OR ANY AFFILIATE OF
SELLER.
"MASTER LEASE" MEANS THAT CERTAIN MASTER LEASE DATED JUNE 16,
1997 BY AND BETWEEN SELLER AS "LANDLORD" AND CHARTER AND OTHER AFFILIATED
ENTITIES AS "TENANT" (COLLECTIVELY CALLED "TENANT").
"RELEASE AGREEMENT" MEANS AN AGREEMENT AUTHORIZED BY AN
APPROPRIATE FINAL ORDER OF THE BANKRUPTCY COURT IN THE BANKRUPTCY PROCEEDING
(NOT SUBJECT TO NOR THE SUBJECT OF AN APPEAL) AND EXECUTED BY CHARTER AND THE
CHARTER AFFILIATES HAVING TERMS REASONABLY ACCEPTABLE TO SELLER PURSUANT TO
WHICH CHARTER AND THE CHARTER AFFILIATES RELEASE SELLER AND THE SELLER PARTIES
FROM ANY AND ALL CLAIMS (REGARDLESS OF THE THEORY), KNOWN OR UNKNOWN, NOW OR
HEREAFTER ARISING WHICH ARE BASED UPON ACTIONS OR FAILURES TO ACT BY SELLER OR
ANY OF THE SELLER PARTIES OCCURRING ON OR PRIOR TO THE DATE OF THE RELEASE
AGREEMENT.
"TERMINATION AGREEMENT" MEANS AN AGREEMENT ("TERMINATION
AGREEMENT") EXECUTED BY TENANT AND AUTHORIZED BY APPROPRIATE FINAL ORDER ENTERED
BY THE BANKRUPTCY COURT (NOT SUBJECT TO NOR THE SUBJECT OF AN APPEAL) PURSUANT
TO WHICH TENANT TERMINATES ALL OF ITS RIGHTS PURSUANT TO THE MASTER LEASE TO THE
EXTENT THOSE RIGHTS RELATE TO THE PROPERTY OR ANY PART THEREOF AND WHICH
INCLUDES ONLY THOSE TERMS WHICH ARE REASONABLY ACCEPTABLE TO SELLER.
"TENANT" MEANS COLLECTIVELY CHARTER AND THE CHARTER AFFILIATE
WHICH HAS THE RIGHT TO OCCUPY THE PROPERTY PURSUANT TO THE MASTER LEASE.
3.4 SELLER'S RIGHT TO TERMINATE. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, SELLER MAY TERMINATE THIS AGREEMENT BY DELIVERING
WRITTEN NOTICE TO PURCHASER IF THE FOLLOWING CONDITIONS ARE NOT SATISFIED ON OR
BEFORE THE CLOSING DATE:
(A) THE EXECUTION AND DELIVERY OF THE TERMINATION
AGREEMENT AND THE RELEASE AGREEMENT BY THE
APPROPRIATE PARTIES ("TERMINATION AND RELEASE
CONDITION");
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(B) THE CHARTER AGREEMENT CLOSING SHALL HAVE OCCURRED OR
BE OCCURRING SIMULTANEOUSLY WITH THE CLOSING OF THIS
AGREEMENT; AND
(C) PURCHASER SHALL HAVE PERFORMED ITS CLOSING
OBLIGATIONS ("PURCHASER'S PERFORMANCE CONDITION").
3.5 PURCHASER'S RIGHT TO TERMINATE. NOTWITHSTANDING ANY PROVISION OF
THIS AGREEMENT TO THE CONTRARY, PURCHASER MAY TERMINATE THIS AGREEMENT BY
DELIVERING WRITTEN NOTICE TO SELLER IF THE FOLLOWING CONDITIONS ARE NOT
SATISFIED ON OR BEFORE THE CLOSING DATE:
(A) SELLER SHALL HAVE PERFORMED ITS CLOSING OBLIGATIONS
("SELLER'S PERFORMANCE CONDITION");
(B) THE CHARTER AGREEMENT CLOSING SHALL HAVE OCCURRED OR
BE OCCURRING SIMULTANEOUSLY WITH THE CLOSING OF THIS
AGREEMENT;
(C) PURCHASER SHALL HAVE OBTAINED FINANCING IN AN AMOUNT
SUFFICIENT TO FUND THE PURCHASE PRICE TO COMPLETE THE
TRANSACTIONS CONTEMPLATED HEREBY AND THE CHARTER
AGREEMENT; AND
(D) PURCHASER SHALL HAVE OBTAINED THE CONSENT OF THE
BOARD OF DIRECTORS OF RAMSAY YOUTH SERVICES, INC. TO
THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT
AND THE CHARTER AGREEMENT;
3.6 CERTAIN TERMINATION PROVISIONS. FOLLOWING THE TIMELY DELIVERY OF A
TERMINATION NOTICE PURSUANT TO EITHER PARAGRAPH 3.4 OR SUBPARAGRAPHS 3.5(A) OR
(B): (A) PURCHASER SHALL DELIVER THE INSPECTION DOCUMENTS (HEREAFTER DEFINED) TO
SELLER, (B) UPON THE DELIVERY OF THE INSPECTION DOCUMENTS TO SELLER, TITLE
COMPANY SHALL IMMEDIATELY DELIVER THE ▇▇▇▇▇▇▇ MONEY (HEREAFTER DEFINED) IN
ACCORDANCE WITH THE FURTHER PROVISIONS OF THIS PARAGRAPH, AND (C) FOLLOWING (A)
AND (B) NEITHER SELLER NOR PURCHASER SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS PURSUANT TO THIS AGREEMENT EXCEPT FOR THE PURCHASER'S INSPECTION
OBLIGATIONS, THE CONFIDENTIALITY OBLIGATIONS AND THE OBLIGATIONS CREATED
PURSUANT TO PARAGRAPH 12, ALL OF WHICH SHALL CONTINUE UNTIL FULLY PERFORMED.
FOLLOWING THE TIMELY DELIVERY OF A TERMINATION NOTICE PURSUANT TO EITHER
SUBPARAGRAPHS 3.5(C) OR (D): (A) PURCHASER SHALL DELIVER THE INSPECTION
DOCUMENTS (HEREAFTER DEFINED) TO SELLER, AND (B) FOLLOWING (A) NEITHER SELLER
NOR PURCHASER SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS PURSUANT TO THIS
AGREEMENT EXCEPT FOR THE PURCHASER'S INSPECTION OBLIGATIONS, THE CONFIDENTIALITY
OBLIGATIONS AND THE OBLIGATIONS CREATED PURSUANT TO PARAGRAPH 12, ALL OF WHICH
SHALL CONTINUE UNTIL FULLY PERFORMED. PROVIDED PURCHASER IS NOT IN DEFAULT IN
THE PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT OR THE CHARTER
AGREEMENT, UPON TERMINATION PURSUANT TO THIS PARAGRAPH, THE ▇▇▇▇▇▇▇ MONEY SHALL
BE IMMEDIATELY PAID TO PURCHASER IF: (I) THE TERMINATION AND RELEASE CONDITION
IS NOT SATISFIED, (II) THE CHARTER AGREEMENT CLOSING DID NOT OCCUR AS A RESULT
OF CHARTER'S DEFAULT OR THE FAILURE OF ANY CONDITION (OTHER THAN ONE CAUSED BY
PURCHASER'S DEFAULT PURSUANT TO THE CHARTER
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AGREEMENT) WHICH RELIEVED PURCHASER OF ITS OBLIGATIONS PURSUANT TO THE CHARTER
AGREEMENT, OR (III) SELLER'S PERFORMANCE CONDITION WAS NOT SATISFIED. PROVIDED
SELLER IS NOT IN DEFAULT IN THE PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THIS
AGREEMENT, UPON TERMINATION PURSUANT TO THIS PARAGRAPH, THE ▇▇▇▇▇▇▇ MONEY SHALL
BE PAID TO SELLER IF (I) THE CHARTER AGREEMENT CLOSING DID NOT OCCUR AS A RESULT
OF PURCHASER'S FAILURE TO PERFORM ITS OBLIGATIONS PURSUANT TO THE CHARTER
AGREEMENT, (II) THE PURCHASER'S PERFORMANCE CONDITION WAS NOT SATISFIED.
PROVIDED SELLER IS NOT IN DEFAULT IN THE PERFORMANCE OF ITS OBLIGATIONS PURSUANT
TO THIS AGREEMENT, IN THE EVENT PURCHASER TERMINATES THIS AGREEMENT PURSUANT TO
SUBPARAGRAPHS 3.5(C) AND/OR (D) OF THIS AGREEMENT THE ▇▇▇▇▇▇▇ MONEY SHALL BE
PAID TO SELLER.
3.7 ADDITIONAL TERMINATION PROVISION REGARDING CHARTER AGREEMENT. IF
PRIOR TO THE CLOSING DATE THE CHARTER AGREEMENT IS TERMINATED FOR ANY REASON
OTHER THAN A DEFAULT BY PURCHASER UNDER THE CHARTER AGREEMENT, THEN PURCHASER
MAY TERMINATE THIS AGREEMENT BY DELIVERING WRITTEN NOTICE OF TERMINATION TO
SELLER WITHIN TEN (10) DAYS OF THE TERMINATION OF THE CHARTER AGREEMENT.
FOLLOWING THE TIMELY DELIVERY OF A TERMINATION NOTICE PURSUANT TO THIS PARAGRAPH
3.7: (A) PURCHASER SHALL DELIVER THE INSPECTION DOCUMENTS (HEREAFTER DEFINED) TO
SELLER, (B) UPON THE DELIVERY OF THE INSPECTION DOCUMENTS TO SELLER, TITLE
COMPANY SHALL IMMEDIATELY DELIVER THE ▇▇▇▇▇▇▇ MONEY IN ACCORDANCE WITH THE
FURTHER PROVISIONS OF THIS PARAGRAPH, AND (C) FOLLOWING (A) AND (B) NEITHER
SELLER NOR PURCHASER SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS PURSUANT TO
THIS AGREEMENT EXCEPT FOR THE PURCHASER'S INSPECTION OBLIGATIONS, THE
CONFIDENTIALITY OBLIGATIONS AND THE OBLIGATIONS CREATED PURSUANT TO PARAGRAPH
12, ALL OF WHICH SHALL CONTINUE UNTIL FULLY PERFORMED.
4. TITLE. AT CLOSING, SELLER SHALL CONVEY TITLE TO THE LAND AND IMPROVEMENTS TO
PURCHASER, SUBJECT TO THE FOLLOWING EXCEPTIONS:
(A) LIENS FOR AD VALOREM TAXES NOT YET DUE AND PAYABLE;
(B) THE STANDARD PRINTED EXCEPTIONS AS SET FORTH IN THE TITLE
POLICY (DEFINED IN PARAGRAPH 5);
(C) THE PERMITTED EXCEPTIONS (DEFINED IN PARAGRAPH 5);
(D) ALL MATTERS THAT WOULD BE SHOWN BY AN ACCURATE SURVEY OR
INSPECTION OF THE REAL PROPERTY, INCLUDING BUT NOT LIMITED TO
EASEMENTS, ENCROACHMENTS, OVERLAPS, RIPARIAN RIGHTS, AND
BOUNDARY DISPUTES, IF ANY; AND
(E) ALL BUILDING, ZONING, ENVIRONMENTAL, AND OTHER STATE, COUNTY
OR FEDERAL LAWS, CODES, AND REGULATIONS (WHETHER EXISTING OR
PROPOSED), AFFECTING THE REAL PROPERTY, INCLUDING ANY AND ALL
SPECIAL EXCEPTIONS, CONDITIONS, SITE PLAN APPROVALS, PROFFERS,
AND OTHER SIMILAR MATTERS, IF ANY, RELATED TO THE ZONING OF
THE REAL PROPERTY.
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5. TITLE COMMITMENT/TITLE POLICY. PRIOR TO THE EFFECTIVE DATE, SELLER DELIVERED
TO PURCHASER (A) TITLE COMMITMENTS (COLLECTIVELY, THE "COMMITMENT"), SHOWING
SELLER AS THE RECORD TITLE OWNER OF THE REAL PROPERTY AND THE TERMS BY WHICH
TITLE COMPANY AGREES TO ISSUE TO PURCHASER AN OWNER'S POLICY OF TITLE INSURANCE
("TITLE POLICY") ISSUED ON A.L.T.A. OWNER'S POLICY (10/17/92 WITH FLORIDA
MODIFICATIONS) IN THE AMOUNT OF THE PURCHASE PRICE INSURING PURCHASER'S FEE
SIMPLE TITLE TO THE REAL PROPERTY SUBJECT TO THE STANDARD TERMS OF SUCH POLICY
AND THE TITLE EXCEPTIONS THEREIN DESCRIBED, (B) A PHOTOCOPY OF ALL DOCUMENTS
("TITLE DOCUMENTS") CONSTITUTING ALL THE TITLE EXCEPTIONS SHOWN ON THE
COMMITMENT, AND (C) A COPIES OF THE MOST RECENT SURVEYS (COLLECTIVELY THE
"SURVEY") OF THE REAL PROPERTY IN SELLER'S POSSESSION. ANY EXTENDED COVERAGE,
ENDORSEMENTS, MODIFICATIONS OR AMENDMENTS (COLLECTIVELY, THE "ENDORSEMENTS") TO
THE TITLE POLICY MAY BE OBTAINED BY PURCHASER BUT SHALL BE OBTAINED AT
PURCHASER'S SOLE COST AND EXPENSE. NOTWITHSTANDING THE FOREGOING, PURCHASER'S
OBTAINING THE ENDORSEMENTS SHALL NOT BE A CONDITION TO CLOSING. AS USED HEREIN,
THE TERM "TITLE OBJECTION PERIOD" SHALL MEAN A PERIOD COMMENCING ON THE
EFFECTIVE DATE AND ENDING FIVE (5) BUSINESS DAYS THEREAFTER. THE TERM "APPROVED
EXCEPTIONS" MEANS (I) THE STANDARD PRINTED EXCEPTIONS SET FORTH IN THE
COMMITMENT, (II) THOSE MATTERS OF TITLE LISTED ON THE COMMITMENT (OTHER THAN
THOSE WITH RESPECT TO WHICH A TITLE OBJECTION (DEFINED BELOW) HAS BEEN RAISED BY
PURCHASER), AND (III) THE MATTERS OF TITLE LISTED IN SUBPARAGRAPHS (D) AND (E)
OF PARAGRAPH 4. IN THE EVENT THE COMMITMENT OR THE SURVEY REFLECTS ANY MATTER
WHICH IS A REASONABLE TITLE OBJECTION (HEREAFTER DEFINED), PURCHASER MAY OBJECT
TO SAID MATTER ("TITLE OBJECTION") BY DELIVERING WRITTEN NOTICE ("TITLE
OBJECTION NOTICE") ON OR BEFORE THE EXPIRATION OF THE TITLE OBJECTION PERIOD AND
SELLER MAY, BUT SHALL NOT BE OBLIGATED TO, CURE SUCH TITLE OBJECTION. IF SELLER
IS ABLE AND WILLING TO ELIMINATE OR CURE SUCH TITLE OBJECTIONS, SELLER SHALL
NOTIFY PURCHASER IN WRITING OF SUCH FACTS (SAID NOTICE HEREINAFTER CALLED
"SELLER'S TITLE NOTICE") ON OR BEFORE THREE (3) BUSINESS DAYS AFTER THE DELIVERY
OF THE TITLE OBJECTION NOTICE (SAID PERIOD CALLED "SELLER'S NOTICE PERIOD") AND
IN WHICH CASE THE ELIMINATION OR CURING BY SELLER OF THE TITLE OBJECTIONS SHALL
BE COMPLETED ON OR BEFORE THE CLOSING. IN THE EVENT SELLER DOES NOT DELIVER
SELLER'S TITLE NOTICE TO PURCHASER WITHIN SELLER'S NOTICE PERIOD, PURCHASER IS
DEEMED TO BE NOTIFIED THAT SELLER IS UNABLE OR UNWILLING TO CURE THE TITLE
OBJECTIONS. IN THE EVENT SELLER (I) DOES NOT DELIVER SELLER'S TITLE NOTICE PRIOR
TO THE EXPIRATION OF THE SELLER'S NOTICE PERIOD OR (II) NOTIFIES PURCHASER THAT
SELLER IS UNABLE OR UNWILLING TO CURE ANY TITLE OBJECTION, PURCHASER SHALL BE
DEEMED TO HAVE WAIVED THE APPLICABLE TITLE OBJECTIONS UNLESS WITHIN THREE (3)
BUSINESS DAYS FOLLOWING THE EXPIRATION OF SELLER'S NOTICE PERIOD, PURCHASER
DELIVERS TO SELLER WRITTEN NOTICE TERMINATING THIS AGREEMENT. TERMINATION SHALL
BE PURCHASER'S ONLY REMEDY ARISING OUT OF SELLER'S FAILURE OR REFUSAL TO CURE OR
REMOVE ANY TITLE OBJECTION. "PERMITTED EXCEPTIONS" MEANS THE APPROVED EXCEPTIONS
EXCLUDING ANY MATTER WHICH IS A TITLE OBJECTION AND WHICH SELLER CURES OR
REMOVES. SELLER'S COMPLIANCE WITH PARAGRAPHS 4 AND 5 SHALL BE CONCLUSIVELY
ESTABLISHED BY TITLE COMPANY'S COMMITMENT TO ISSUE THE TITLE POLICY WITHIN A
REASONABLE PERIOD FOLLOWING THE CLOSING, SUBJECT TO ONLY THOSE EXCEPTIONS LISTED
IN PARAGRAPH 4. UPON THE TIMELY DELIVERY OF A TERMINATION NOTICE PURSUANT TO
THIS PARAGRAPH: (A) PURCHASER SHALL DELIVER THE INSPECTION DOCUMENTS TO SELLER,
(B) UPON THE DELIVERY OF THE INSPECTION DOCUMENTS TO SELLER, TITLE COMPANY SHALL
DELIVER THE ▇▇▇▇▇▇▇ MONEY TO PURCHASER, AND (C) FOLLOWING (A) AND (B) NEITHER
SELLER NOR PURCHASER SHALL HAVE
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ANY FURTHER RIGHTS OR OBLIGATIONS PURSUANT TO THIS AGREEMENT EXCEPT FOR THE
PURCHASER'S INSPECTION OBLIGATIONS, THE CONFIDENTIALITY OBLIGATIONS AND THE
OBLIGATIONS CREATED PURSUANT TO PARAGRAPH 12, ALL OF WHICH SHALL CONTINUE UNTIL
FULLY PERFORMED. "REASONABLE TITLE OBJECTION" MEANS ANY: (I) MONETARY
ENCUMBRANCE OTHER THAN AD VALOREM TAXES ASSESSED FOR THE YEAR IN WHICH CLOSING
IS TO OCCUR; (II) ANY MATERIAL ENCROACHMENT OF ANY IMPROVEMENTS SITUATED ON THE
REAL PROPERTY UPON ANY EASEMENT, SET-BACK LINE OR RIGHT OF WAY; (III) ANY
MATERIAL ENCROACHMENT OF ANY OFF-SITE IMPROVEMENTS OVER ANY BOUNDARY OF THE REAL
PROPERTY; OR (IV) ANY MATERIAL VIOLATION OF ANY COVENANT OR RESTRICTION BINDING
UPON THE REAL PROPERTY.
6. FEASIBILITY STUDIES.
6.1 DURING THE PERIOD ("INSPECTION PERIOD") COMMENCING ON THE EFFECTIVE
DATE AND ENDING ON THE EARLIER OF THE CLOSING DATE OR THE DATE ON WHICH THIS
AGREEMENT IS TERMINATED PURSUANT TO THE TERMS HEREOF, PURCHASER, AND ITS
AUTHORIZED AGENTS OR REPRESENTATIVES (COLLECTIVELY, "PURCHASER'S CONTRACTORS"),
SHALL BE ENTITLED TO ENTER UPON THE REAL PROPERTY AT ALL REASONABLE TIMES DURING
NORMAL BUSINESS HOURS TO INSPECT AND CONDUCT REASONABLY NECESSARY TESTS WHICH
ARE APPROVED IN WRITING BY SELLER, WHICH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED, PROVIDED HOWEVER, SAID INSPECTIONS SHALL BE SUBJECT TO AND
LIMITED BY THE PROVISIONS OF PARAGRAPH 6.4. AND THE RIGHTS OF ANY TENANT OR
SUBTENANTS OF THE REAL PROPERTY. PURCHASER SHALL NOTIFY SELLER IN WRITING OF ITS
INTENTION OR THE INTENTION OF PURCHASER'S CONTRACTORS TO ENTER THE REAL PROPERTY
AT LEAST FORTY-EIGHT (48) HOURS BEFORE SUCH INTENDED ENTRY, AND OBTAIN SELLER'S
WRITTEN CONSENT TO ANY TESTS TO BE CONDUCTED. PURCHASER SHALL BEAR THE COST OF
ALL INSPECTIONS AND TESTS. ADDITIONALLY, PURCHASER AND PURCHASER'S CONTRACTORS
MAY ENTER ON THE REAL PROPERTY TO PREPARE A SURVEY OF THE REAL PROPERTY OR TO
UPDATE THE SURVEY AND TO PERFORM ENVIRONMENTAL ASSESSMENTS OF THE REAL PROPERTY.
AT SELLER'S OPTION, SELLER AND ITS REPRESENTATIVES MAY BE PRESENT FOR ANY
INSPECTION OR TEST. WITHOUT LIMITATION OF THE FOREGOING, SELLER MAY CONDITION
ITS APPROVAL OF ANY INSPECTION OR TEST UPON OBTAINING THE APPROVAL OF ANY TENANT
OF THE REAL PROPERTY, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
6.2 DURING THE INSPECTION PERIOD, SELLER AGREES TO ALLOW PURCHASER AND
PURCHASER'S CONTRACTORS TO INSPECT AND MAKE COPIES OF ASSESSMENTS (SPECIAL OR
OTHERWISE), REAL PROPERTY AD VALOREM TAX BILLS, NOTICES, OR CORRESPONDENCE FROM
GOVERNMENTAL ENTITIES, ENVIRONMENTAL REPORTS AND INSPECTIONS, FILES AND RELATED
ITEMS WITH RESPECT TO THE PROPERTY, IF ANY, WHICH ARE IN SELLER'S POSSESSION OR
UNDER THE CONTROL OF SELLER. ALL DOCUMENTS AND OTHER MATERIALS DELIVERED TO OR
MADE AVAILABLE TO PURCHASER PURSUANT TO THIS PARAGRAPH 6.2 OR OTHERWISE AND ALL
COPIES THEREOF ARE HEREAFTER CALLED "DOCUMENTS". NOTWITHSTANDING ANYTHING IN
THIS PARAGRAPH 6.2 TO THE CONTRARY, PURCHASER SHALL NOT HAVE THE RIGHT TO
INSPECT OR MAKE COPIES OF (I) ANY APPRAISALS OF THE REAL PROPERTY IN SELLER'S
POSSESSION OR ANY DOCUMENTS IN SELLER'S POSSESSION INVOLVING ANY PROSPECTIVE
PURCHASERS OR (II) ANY DOCUMENTS RELATING TO THE ACTIVITIES CONDUCTED ON THE
REAL PROPERTY BY ANY TENANT OF THE REAL PROPERTY. PURCHASER AGREES AND
ACKNOWLEDGES THAT ANY AND ALL OF THE DOCUMENTS ARE PROPRIETARY AND CONFIDENTIAL
IN NATURE AND WILL BE DELIVERED TO PURCHASER SOLELY TO ASSIST
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PURCHASER IN CONNECTION WITH THIS AGREEMENT. PURCHASER AGREES NOT TO DISCLOSE
THE DOCUMENTS, OR ANY OF THE PROVISIONS, TERMS OR CONDITIONS THEREOF, TO ANY
PARTY EXCEPT IN ACCORDANCE WITH THE FURTHER PROVISIONS OF THIS PARAGRAPH 6.2.
PURCHASER SHALL NOT DISCLOSE THE DOCUMENTS OR THE CONTENTS THEREOF EXCEPT TO THE
FOLLOWING PERSONS AND ONLY AFTER SAID FOLLOWING PERSONS EXECUTE AGREEMENTS TO
COMPLY WITH THE CONFIDENTIALITY PROVISIONS SET FORTH IN THIS PARAGRAPH 6.2 AND
PARAGRAPH 15.14: (A) PERSONS WITHIN PURCHASER'S ORGANIZATION WHO ARE ASSISTING
PURCHASER WITH ITS EVALUATION OF THE PROPERTY, (B) PERSONS EMPLOYED BY
PURCHASER'S CONTRACTORS TO ASSIST PURCHASER WITH ITS EVALUATION OF THE PROPERTY
AND (C) PERSONS EMPLOYED BY ENTITIES PROPOSING TO PROVIDE EQUITY OR LOANS IN
CONNECTION WITH THE PURCHASE OR OWNERSHIP OF THE PROPERTY. "INSPECTION
DOCUMENTS" MEANS THE DOCUMENTS AND ALL STUDIES, REPORTS OR TEST RESULTS OBTAINED
BY PURCHASER IN CONNECTION WITH ITS INSPECTION OF THE PROPERTY. PURCHASER SHALL
RETURN ALL OF THE INSPECTION DOCUMENTS IF THIS AGREEMENT IS TERMINATED FOR ANY
REASON.
6.3 DISCLAIMER. PURCHASER ACKNOWLEDGES AND AGREES THAT THE DOCUMENTS
ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND THAT NEITHER SELLER, NOR ITS
AFFILIATES, NOR THE PERSON OR COMPANY WHICH PREPARED ANY DOCUMENT (COLLECTIVELY,
THE "AUTHOR") HAVE MADE OR MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF THE DOCUMENTS. PURCHASER AGREES
THAT NEITHER SELLER, NOR ITS AFFILIATES, NOR ANY AUTHOR, NOR ANY OTHER PERSON,
WILL HAVE ANY LIABILITY TO PURCHASER OR ANY OF PURCHASER'S CONTRACTORS RESULTING
FROM THE USE OF ANY OF THE DOCUMENTS. PURCHASER FURTHER AGREES THAT PURCHASER
AND PURCHASER'S CONTRACTORS SHALL INDEPENDENTLY INSPECT AND INVESTIGATE THE
PROPERTY AND VERIFY SUCH INFORMATION WITH RESPECT TO THE PROPERTY AS SAID
PARTIES DEEM NECESSARY OR DESIRABLE TO FULLY EVALUATE THE PROPOSED TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THE PHYSICAL CONDITION AND ECONOMIC STATUS OF
THE PROPERTY. PURCHASER SHALL NOTIFY ANY OF PURCHASER'S CONTRACTORS OF THE
PROVISIONS OF THIS PARAGRAPH 6.3 BEFORE DELIVERING ANY OF THE DOCUMENTS TO ANY
OF THEM.
6.4 INSPECTION OBLIGATIONS. PURCHASER AND PURCHASER'S CONTRACTORS
SHALL: (A) NOT UNREASONABLY INTERFERE WITH THE OPERATION AND MAINTENANCE OF THE
REAL PROPERTY; (B) NOT DAMAGE ANY PART OF THE PROPERTY; (C) NOT INJURE OR
OTHERWISE CAUSE BODILY HARM TO SELLER, ITS AGENTS, CONTRACTORS AND EMPLOYEES,
ANY TENANT OF THE PROPERTY, OR ANY THIRD PARTY; (D) MAINTAIN GENERAL LIABILITY
(OCCURRENCE) INSURANCE IN TERMS AND AMOUNTS SATISFACTORY TO SELLER COVERING ANY
ACCIDENT ARISING IN CONNECTION WITH THE PRESENCE OF PURCHASER, PURCHASER'S
CONTRACTORS ON THE REAL PROPERTY (WITH RESPECT TO PURCHASER'S CONTRACTORS, IT
SHALL BE SUFFICIENT FOR PURCHASER TO PROVIDE SELLER WITH EVIDENCE THAT
PURCHASER'S CONTRACTOR'S ENTERING THE REAL PROPERTY TO CONDUCT INSPECTIONS ARE
INDEPENDENT CONTRACTORS THAT INDEPENDENTLY CARRY SUCH INSURANCE); (E) PROMPTLY
PAY WHEN
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DUE THE COSTS OF ALL TESTS, INVESTIGATIONS, AND EXAMINATIONS DONE WITH REGARD TO
THE PROPERTY; (F) NOT PERMIT ANY LIENS TO ATTACH TO THE PROPERTY BY REASON OF
THE EXERCISE OF ITS RIGHTS HEREUNDER; (G) RESTORE THE SURFACE OF THE LAND OR ANY
IMPROVEMENTS THEREON TO THE CONDITION IN WHICH THE SAME WAS FOUND BEFORE ANY
PERMITTED INSPECTIONS OR TESTS WERE UNDERTAKEN, PROVIDED, THAT ANY SUCH
RESTORATION SHALL BE LIMITED TO THE RESTORATION OF ANY DAMAGE CAUSED BY
PURCHASER OR PURCHASER'S CONTRACTORS IN THEIR CONDUCTING OF INSPECTIONS AND/OR
TESTS OF THE PROPERTY; (H) COMPLY WITH THE CONFIDENTIALITY PROVISIONS SET FORTH
IN PARAGRAPH 6.2 AND PARAGRAPH 15.14; (I) NOT UNREASONABLY INTERFERE WITH ANY
ACTIVITIES CONDUCTED ON THE REAL PROPERTY BY ANY TENANT THEREOF AND (J) NOT
ENTER UPON THE REAL PROPERTY WITHOUT THE CONSENT OF THE APPLICABLE TENANT OR
SUBTENANT OF THE REAL PROPERTY. PURCHASER INDEMNIFIES AND HOLDS SELLER HARMLESS
FROM AND AGAINST ANY AND ALL LIENS, CLAIMS, CAUSES OF ACTION, DAMAGES AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ASSERTED AGAINST OR INCURRED BY
SELLER ARISING OUT OF ANY VIOLATION OF THE PROVISIONS OF THIS PARAGRAPH 6.4. THE
OBLIGATIONS OF PURCHASER CREATED PURSUANT TO THIS PARAGRAPH 6.4 ARE CALLED
"PURCHASER'S INSPECTION OBLIGATIONS", AND SHALL SURVIVE THE CLOSING OR ANY
TERMINATION OF THIS AGREEMENT. THE ▇▇▇▇▇▇▇ MONEY SHALL SECURE THE PURCHASER'S
INSPECTION OBLIGATIONS AND PURCHASER GRANTS TO AND SELLER SHALL HAVE THE RIGHT
(BUT NOT BE OBLIGATED) TO CURE ANY VIOLATION OF THIS PARAGRAPH 6.4 BY PAYING OR
BONDING AROUND ANY SUCH VIOLATION OUT OF THE ▇▇▇▇▇▇▇ MONEY. IN THE EVENT THAT
SELLER INTENDS TO DRAW ON THE ▇▇▇▇▇▇▇ MONEY PURSUANT TO THE PRECEDING SENTENCE,
SELLER SHALL FIRST SEND WRITTEN NOTICE OF SUCH INTENTION TO PURCHASER AND TO
ESCROW AGENT SETTING FORTH THE AMOUNT OF THE NECESSARY DRAW AND THE REMEDY TO
THE VIOLATION FOR WHICH SUCH DRAW WILL BE USED. UPON RECEIPT OF SUCH NOTICE,
PURCHASER SHALL HAVE TEN (10) DAYS DURING WHICH TO REMEDY THE VIOLATION FOR
WHICH SUCH DRAW IS REQUIRED. IN THE EVENT THAT PURCHASER FAILS TO REMEDY SUCH
VIOLATION DURING SAID TEN (10) DAY PERIOD, SELLER MAY DRAW ON THE ▇▇▇▇▇▇▇ MONEY
IN ACCORDANCE WITH THE FOREGOING AND PURCHASER SHALL BE REQUIRED TO REPLACE SUCH
SUMS WITHIN FIVE (5) DAYS OF RECEIVING WRITTEN NOTICE FROM SELLER THAT IT HAS
DRAWN FUNDS FROM THE ▇▇▇▇▇▇▇ MONEY. THE FAILURE BY PURCHASER TO TIMELY REPLACE
SUCH FUNDS SHALL BE DEEMED A DEFAULT HEREUNDER BY PURCHASER RESULTING IN SELLER
HAVING THE RIGHT TO EXERCISE ANY OF ITS REMEDIES HEREIN CONTAINED FOR A DEFAULT
BY PURCHASER. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY,
NO TERMINATION OF THIS AGREEMENT SHALL TERMINATE THE PURCHASER'S INSPECTION
OBLIGATIONS, AND THE LIMITATION OF DAMAGES AS SET FORTH IN PARAGRAPH 14.1 SHALL
NOT APPLY TO ANY CAUSE OF ACTION ARISING OUT OF A BREACH OF THE PURCHASER'S
INSPECTION OBLIGATIONS.
6.5 PROPERTY CONVEYED "AS IS". PURCHASER ACKNOWLEDGES AND AGREES THAT
SELLER IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PROPERTY OR THE BUSINESS ASSETS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE
SET FORTH IN THE DEED TO BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OF ACCESS, INGRESS OR EGRESS,
VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY
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OTHER MATTER OR THING RELATING TO OR AFFECTING THE PROPERTY INCLUDING, WITHOUT
LIMITATION: (A) THE VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OF THE
PROPERTY, AND (B) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY. PURCHASER AGREES THAT WITH RESPECT TO THE PROPERTY OR THE BUSINESS
ASSETS , PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY
OR INDIRECTLY, ANY STATEMENT, REPRESENTATION OR WARRANTY OF SELLER OR ANY AGENT
OF SELLER. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE PURCHASER OF REAL
ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
PURCHASER'S CONTRACTORS, AND THAT PURCHASER WILL CONDUCT SUCH INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY OR THE BUSINESS ASSETS, INCLUDING, BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY
UPON SAME, AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS,
MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INSPECTIONS AND INVESTIGATIONS.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND
CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS",
WITH ALL FAULTS, AND PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO
ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE
PROPERTY OR THE BUSINESS ASSETS BY SELLER, ANY AGENT OF SELLER OR ANY THIRD
PARTY. THE TERMS AND CONDITIONS OF THIS PARAGRAPH 6.5 SHALL EXPRESSLY SURVIVE
THE CLOSING AND NOT MERGE THEREIN AND SHALL BE INCORPORATED INTO THE DEED AND
▇▇▇▇ OF SALE. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY
OR THE BUSINESS ASSETS FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED
TO HEREIN.
PURCHASER FURTHER ACKNOWLEDGES THAT SELLER HAS ADVISED PURCHASER THAT
NEITHER SELLER NOR ANY OF ITS CONTRACTORS OR AGENTS HAVE HERETOFORE OCCUPIED OR
OPERATED THE PROPERTY AND THUS SELLER DOES NOT HAVE THE KNOWLEDGE OF THE
PROPERTY THAT AN OWNER WHICH OCCUPIED OR OPERATED THE PROPERTY WOULD HAVE.
6.6 ENVIRONMENTAL STUDIES. AS ADDITIONAL CONSIDERATION FOR THE
TRANSACTION CONTEMPLATED HEREIN, PURCHASER AGREES THAT IT WILL PROVIDE TO SELLER
IMMEDIATELY FOLLOWING THE RECEIPT OF SAME BY PURCHASER COPIES OF ANY AND ALL
REPORTS, TESTS OR STUDIES INVOLVING HAZARDOUS MATERIALS (HEREAFTER DEFINED) ON,
UNDER OR AT THE REAL PROPERTY WHICH REPORTS,
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TESTS OR STUDIES SHALL BE ADDRESSED TO BOTH SELLER AND PURCHASER AT NO COST TO
SELLER; PROVIDED, HOWEVER, PURCHASER SHALL HAVE NO OBLIGATION TO CAUSE ANY SUCH
TESTS OR STUDIES TO BE PERFORMED ON THE REAL PROPERTY. IN THE EVENT THAT SUCH
REPORTS, TESTS OR STUDIES INDICATE THE EXISTENCE OF MATERIALLY ADVERSE
CONTAMINATION BY HAZARDOUS MATERIALS (FOR WHICH THE APPLICABLE GOVERNMENTAL
AUTHORITIES REQUIRE REMEDIATION) ON, UNDER OR AT THE REAL PROPERTY, SELLER MAY
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE TO PURCHASER WITHIN TEN (10)
BUSINESS DAYS AFTER PURCHASER DELIVERS COPIES OF SUCH REPORTS, TESTS OR STUDIES
TO SELLER. FOLLOWING SUCH TERMINATION: (A) PURCHASER SHALL DELIVER THE
INSPECTION DOCUMENTS TO SELLER, (B) UPON THE DELIVERY OF THE INSPECTION
DOCUMENTS TO SELLER, TITLE COMPANY SHALL DELIVER THE ▇▇▇▇▇▇▇ MONEY TO PURCHASER,
(C) FOLLOWING (A) AND (B) NEITHER SELLER NOR PURCHASER SHALL HAVE ANY FURTHER
RIGHTS OR OBLIGATIONS PURSUANT TO THIS AGREEMENT EXCEPT FOR THE PURCHASER'S
INSPECTION OBLIGATIONS, THE CONFIDENTIALITY OBLIGATIONS AND THE OBLIGATIONS
CREATED PURSUANT TO PARAGRAPH 12, ALL OF WHICH SHALL CONTINUE UNTIL FULLY
PERFORMED. THE TERM "HAZARDOUS MATERIALS" SHALL REFER TO (I) ALL MATERIALS AND
SUBSTANCES WHICH ARE DEFINED AS SUCH IN (OR FOR PURPOSES OF) THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, ANY SO CALLED
"SUPERFUND" OR "SUPERLIEN" LAW, THE TOXIC SUBSTANCE CONTROL ACT, OR ANY FEDERAL,
STATE OR LOCAL STATUTE, ORDINANCE, CODE, RULE, REGULATIONS, ORDER OR DECREE
REGULATING, RELATING TO, OR IMPOSING LIABILITY OR STANDARDS OF CONDUCT
CONCERNING ANY HAZARDOUS, TOXIC OR DANGEROUS WASTE, SUBSTANCE OR MATERIAL, AS
NOW OR AT ANY TIME HEREINAFTER IN EFFECT; (II) ASBESTOS; AND (III) ANY OTHER
HAZARDOUS, TOXIC OR DANGEROUS WASTE, SUBSTANCE OR MATERIAL.
6.7 RELEASE. PURCHASER RELEASES AND DISCHARGES SELLER FROM ALL CLAIMS,
CAUSES OF ACTION AND EXPENSES WHICH HAVE ARISEN OR WHICH MAY HEREAFTER ARISE OUT
OF OR RELATE TO: (I) THE PHYSICAL CONDITION OF THE IMPROVEMENTS, PERSONALTY OR
THE LAND, TITLE TO THE PROPERTY OR ANY GOVERNMENTAL REGULATIONS AFFECTING ANY
PART OF THE PROPERTY EXCEPT FOR CLAIMS ARISING OUT OF SELLER'S WARRANTY OF TITLE
TO BE INCLUDED IN THE DEED AND THE ▇▇▇▇ OF SALE AND ANY EXPRESS OBLIGATION OF
SELLER PURSUANT TO THIS AGREEMENT; OR (II) THE PRESENCE, GENERATION, TREATMENT
OR DISPOSITION OF HAZARDOUS MATERIALS ON, UNDER OR AT THE REAL PROPERTY OR ANY
PROPERTY NEAR THE REAL PROPERTY; OR (III) THE BUSINESS ASSETS. ADDITIONALLY,
PURCHASER INDEMNIFIES AND HOLDS SELLER HARMLESS FROM AND AGAINST ANY CLAIMS,
CAUSES OF ACTION AND EXPENSES (INCLUDING THOSE ASSERTED AGAINST OR INCURRED BY
SELLER) WHICH MAY ARISE AFTER THE CLOSING DATE AND WHICH ARISE OUT OF OR RELATE
TO THE PRESENCE, GENERATION, TREATMENT OR DISPOSITION OF HAZARDOUS MATERIALS ON,
UNDER OR AT THE REAL PROPERTY OR ANY PROPERTY NEAR THE REAL PROPERTY INSOFAR AS
SUCH FIRST OCCURS AFTER THE CLOSING DATE. THIS PARAGRAPH 6.7 SHALL SURVIVE
CLOSING UNTIL FULLY PERFORMED.
6.8 PROPERTY CONDITION TERMINATION RIGHT. PRIOR TO THE EFFECTIVE DATE,
SELLER
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DELIVERED TO PURCHASER (I) COPIES OF THOSE CERTAIN REPORTS OF PROPERTY CONDITION
BY LAW ENGINEERING AND ENVIRONMENTAL SERVICES, INC. ("LAW ENGINEERING") BOTH
DATED MAY 23, 1997, AND (II) THOSE CERTAIN REPORTS OF PHASE I ENVIRONMENTAL SITE
ASSESSMENT BY LAW ENGINEERING DATED MAY 23, 1997, AND MAY 27, 1997
(COLLECTIVELY, THE "LAW REPORT"). PURCHASER MAY ENGAGE AN ENVIRONMENTAL OR
ENGINEERING CONSULTING FIRM TO PROVIDE A REPORT OF PROPERTY CONDITION AND A
PHASE I ENVIRONMENTAL REPORT (COLLECTIVELY, THE "NEW INSPECTION REPORT");
PROVIDED, HOWEVER, THAT SUCH FIRM SHALL BE APPROVED IN WRITING BY SELLER, WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. PURCHASER MAY TERMINATE
THIS AGREEMENT BY GIVING WRITTEN NOTICE ("TERMINATION NOTICE") TO SELLER ON OR
BEFORE THE TERMINATION DEADLINE IF, BUT ONLY IF, THE NEW INSPECTION REPORT
INDICATES A MATERIAL ADVERSE CHANGE IN OR ON THE PROPERTY FROM THE CONDITION OF
THE PROPERTY DESCRIBED IN THE LAW REPORT ("TERMINATION EVENT"). "TERMINATION
DEADLINE" SHALL BE 5:00 P.M. CENTRAL STANDARD TIME ON THE DATE WHICH IS FIFTEEN
(15) DAYS AFTER THE EFFECTIVE DATE.
6.9 TERMINATION PROCEDURES. FOLLOWING THE OCCURRENCE OF A TERMINATION
EVENT AND THE DELIVERY OF THE TERMINATION NOTICE ON OR BEFORE THE TERMINATION
DEADLINE: (A) PURCHASER SHALL DELIVER THE INSPECTION DOCUMENTS TO SELLER, (B)
UPON THE DELIVERY OF THE INSPECTION DOCUMENTS TO SELLER, TITLE COMPANY SHALL
DELIVER THE ▇▇▇▇▇▇▇ MONEY TO PURCHASER, (C) FOLLOWING (A) AND (B) NEITHER SELLER
NOR PURCHASER SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS PURSUANT TO THIS
AGREEMENT EXCEPT FOR THE PURCHASER'S INSPECTION OBLIGATIONS, THE CONFIDENTIALITY
OBLIGATIONS AND THE OBLIGATIONS CREATED PURSUANT TO PARAGRAPH 12, ALL OF WHICH
SHALL CONTINUE UNTIL FULLY PERFORMED. IF PURCHASER FAILS TO DELIVER A
TERMINATION NOTICE ON OR BEFORE THE TERMINATION DEADLINE, IT SHALL NOT HAVE ANY
FURTHER RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO PARAGRAPH 6.8.
7. CLOSING COSTS. SELLER SHALL PAY (I) OF ANY ESCROW FEE OR SIMILAR FEE CHARGED
BY TITLE COMPANY FOR ACTING AS ESCROW AGENT; (II) THE COST OF THE TITLE POLICY;
AND (III) ALL DOCUMENTARY FEES, TRANSFER TAXES OR SIMILAR FEES OR TAXES RELATING
TO THE CONVEYANCE OF THE PROPERTY. PURCHASER SHALL PAY (I) THE COST OF ALL SOIL
TESTS, ENVIRONMENTAL TESTS, HYDROLOGICAL STUDIES, AND OTHER TESTS AND
INSPECTIONS OF THE PROPERTY; (II) THE COST OF ANY ENDORSEMENTS; (III) THE COST
OF ANY SURVEY OR ANY UPDATE OF THE SURVEY. EACH PARTY SHALL PAY ITS OWN
ATTORNEYS' FEES AND EXPENSES EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 14.3.
8. APPORTIONMENT OF TAXES, INCOME AND EXPENSES. ALL CITY, STATE AND COUNTY AD
VALOREM TAXES AND PRIVATE ASSESSMENTS RELATING TO THE PROPERTY (HEREINAFTER
COLLECTIVELY REFERRED TO AS THE "TAXES") FOR THE PERIOD INCLUDING THE CLOSING
SHALL BE PRORATED AND ACCOUNTED FOR BETWEEN SELLER AND PURCHASER AS OF 12:01
A.M. ON THE CLOSING DATE BASED ON THE LATEST MILEAGE RATE AND ASSESSMENT
AVAILABLE. SHOULD SUCH PRORATION BE INACCURATE BASED ON THE ACTUAL BILLS WHEN
RECEIVED, EITHER PARTY SHALL BE ENTITLED TO RECEIVE ON DEMAND, A PAYMENT FROM
THE OTHER CORRECTING SUCH PRORATION. THERE SHALL BE NO PRORATION OF ANY INCOME
DERIVED FROM THE PROPERTY OR EXPENSES RELATED TO THE OPERATION OF THE PROPERTY.
THE PROVISIONS OF THIS PARAGRAPH 8 SHALL SURVIVE THE CLOSING.
9. CASUALTY LOSS/CONDEMNATION.
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9.1 CASUALTY LOSS. IN THE EVENT OF MATERIAL DAMAGE TO OR MATERIAL
DESTRUCTION OF THE IMPROVEMENTS BY FIRE OR OTHER CASUALTY PRIOR TO THE CLOSING,
WHICH MATERIAL DAMAGE OR MATERIAL DESTRUCTION HAS NOT BEEN REPAIRED OR RESTORED
BY THE CLOSING DATE, PURCHASER MAY, AT ITS OPTION, ELECT, (I) TO TERMINATE THIS
AGREEMENT, OR (II) TO CONSUMMATE THE TRANSACTION CONTEMPLATED HEREBY,
IRRESPECTIVE OF SUCH DAMAGE OR DESTRUCTION AND WITHOUT REDUCTION OF THE PURCHASE
PRICE, BUT WITH A CREDIT TO PURCHASER IN THE AMOUNT OF ANY INSURANCE PROCEEDS
RECEIVED PRIOR TO THE CLOSING DATE AND WHICH ARE NOT PAID FOR RESTORATION OR
REPAIR (EXCLUDING ANY RENTAL LOSS, BUSINESS INTERRUPTION OR SIMILAR PROCEEDS)
AND AN ASSIGNMENT TO PURCHASER OF SELLER'S RIGHT TO APPLICABLE INSURANCE
PROCEEDS (EXCLUDING ANY RENTAL LOSS, BUSINESS INTERRUPTION OR SIMILAR PROCEEDS)
TO BE RECEIVED THEREAFTER, IF ANY. DAMAGE OR DESTRUCTION OF WHICH THE COST TO
REPAIR IS IN EXCESS OF SEVEN HUNDRED FIFTY THOUSAND DOLLARS AND 00/100
($750,000.00) (AS REASONABLY DETERMINED BY SELLER) SHALL BE DEEMED "MATERIAL"
FOR THE PURPOSES OF THIS PARAGRAPH. IN THE EVENT PURCHASER FAILS TO DELIVER
WRITTEN NOTICE OF TERMINATION PURSUANT TO THIS PARAGRAPH 9.1 WITHIN TEN (10)
DAYS FOLLOWING SELLER'S DELIVERY OF WRITTEN NOTICE OF A CASUALTY, PURCHASER
SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT OF TERMINATION PURSUANT TO THIS
PARAGRAPH 9.1. IN THE EVENT OF ANY NON-MATERIAL DAMAGE TO OR DESTRUCTION OF THE
IMPROVEMENTS BY FIRE OR OTHER CASUALTY PRIOR TO THE CLOSING OR IF PURCHASER DOES
NOT TIMELY TERMINATE THIS AGREEMENT AS A RESULT OF A MATERIAL CASUALTY, CLOSING
SHALL OCCUR AS PROVIDED FOR IN THIS AGREEMENT WITH NO ADJUSTMENT TO THE PURCHASE
PRICE, BUT WITH A CREDIT TO PURCHASER IN THE AMOUNT OF (I) ANY INSURANCE
PROCEEDS RECEIVED PRIOR TO THE CLOSING DATE WHICH ARE NOT PAID FOR RESTORATION
OR REPAIR (EXCLUDING ANY RENTAL LOSS, BUSINESS INTERRUPTION OR SIMILAR
PROCEEDS), AND (II) THE AMOUNT OF ANY DEDUCTIBLE, AND SELLER SHALL ASSIGN TO
PURCHASER SELLER'S RIGHT TO APPLICABLE INSURANCE PROCEEDS (EXCLUDING ANY RENTAL
LOSS, BUSINESS INTERRUPTION OR SIMILAR PROCEEDS) TO BE RECEIVED THEREAFTER, IF
ANY.
9.2 CONDEMNATION. SELLER AGREES TO GIVE PURCHASER WRITTEN NOTICE OF ANY
ACTION OR PROCEEDING FOR CONDEMNATION OF ANY PART OF THE REAL PROPERTY, WHICH
MAY RESULT IN THE TAKING OF ALL OR ANY PART OF THE REAL PROPERTY. UPON SUCH
NOTIFICATION, PURCHASER SHALL HAVE THE RIGHT, TO BE EXERCISED WITHIN TEN (10)
DAYS AFTER RECEIPT OF SUCH NOTICE, TO TERMINATE THIS AGREEMENT AND RECEIVE A
REFUND OF THE ▇▇▇▇▇▇▇ MONEY. IF PURCHASER DOES NOT ELECT TO TERMINATE THIS
AGREEMENT, THEN THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND SELLER
WILL CREDIT TO PURCHASER AT CLOSING THE AMOUNT OF ANY MONIES RECEIVED BY SELLER
TO DATE BY REASON OF SUCH TAKING, AND WILL ASSIGN TO PURCHASER THE RIGHT TO ANY
CONDEMNATION AWARDS OR PROCEEDS RECEIVED AFTER SUCH DATE RELATING TO THE REAL
PROPERTY.
10. TERMINATION PURSUANT TO PARAGRAPHS 9.1 OR 9.2. FOLLOWING THE TIMELY DELIVERY
OF A TERMINATION NOTICE PURSUANT TO EITHER PARAGRAPH 9.1 OR 9.2: (A) PURCHASER
SHALL DELIVER THE INSPECTION DOCUMENTS TO SELLER, (B) UPON THE DELIVERY OF THE
INSPECTION DOCUMENTS TO SELLER, TITLE COMPANY SHALL DELIVER THE ▇▇▇▇▇▇▇ MONEY TO
PURCHASER, (C) FOLLOWING (A) AND (B) NEITHER SELLER NOR PURCHASER SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS PURSUANT TO THIS AGREEMENT EXCEPT FOR THE
PURCHASER'S INSPECTION OBLIGATIONS, THE CONFIDENTIALITY OBLIGATIONS AND THE
OBLIGATIONS CREATED PURSUANT TO PARAGRAPH 12, ALL OF WHICH SHALL CONTINUE UNTIL
FULLY PERFORMED.
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11. ASSIGNMENT. PURCHASER SHALL NOT ASSIGN ANY OR ALL OF ITS RIGHTS AND
OBLIGATIONS PURSUANT TO THIS AGREEMENT (WHETHER BY DIRECT OR INDIRECT TRANSFER
OR ASSIGNMENT) WITHOUT SELLER'S PRIOR WRITTEN CONSENT, WHICH CONSENT MAY BE
WITHHELD OR GRANTED IN SELLER'S SOLE AND ABSOLUTE DISCRETION. NOTWITHSTANDING
THE FOREGOING, PURCHASER MAY, WITHOUT SELLER'S CONSENT, ASSIGN ALL OF ITS RIGHTS
PURSUANT TO THIS AGREEMENT TO ANY DIRECT OR INDIRECT SUBSIDIARY OF PURCHASER,
PROVIDED (I) ON THE CLOSING DATE (A) NEITHER SELLER NOR ANY OF ITS AFFILIATES
DERIVES ANY INCOME FROM SUCH ASSIGNEE, AND (B) SUCH ASSIGNEE HAS NOT AND DOES
NOT PROVIDE GOODS AND SERVICES TO SELLER OR ANY AFFILIATE OF SELLER, AND (ii) at
the time of such assignment, Purchaser and the Permitted Assignee shall execute
and deliver to Seller a written agreement pursuant to which Purchaser
unconditionally assigns its interest in this Agreement and the ▇▇▇▇▇▇▇ Money to
Permitted Assignee and the Permitted Assignee unconditionally assumes and agrees
to perform all of the obligations of Purchaser pursuant to this Agreement. AT
LEAST THREE (3) DAYS PRIOR TO THE CLOSING DATE, PURCHASER SHALL NOTIFY SELLER IN
WRITING OF THE NAME OF ANY SUCH ASSIGNEE SO THAT SELLER MAY DETERMINE WHETHER
SELLER OR ANY OF ITS AFFILIATES DERIVES ANY INCOME FROM SUCH ASSIGNEE AND
WHETHER SUCH ASSIGNEE HAS PROVIDED OR DOES PROVIDE GOODS AND SERVICES TO SELLER
OR ANY AFFILIATE OF SELLER.
12. BROKER INDEMNIFICATION. PURCHASER AND SELLER REPRESENT AND WARRANT TO EACH
OTHER THAT THEY HAVE NOT DEALT WITH ANY REALTOR, BROKER OR AGENT IN CONNECTION
WITH THIS AGREEMENT FOR WHICH THE OTHER PARTY IS LIABLE FOR ANY FEE OR
COMMISSION. IN THE EVENT OF ANY BREACH OF THE FOREGOING REPRESENTATIONS BY
PURCHASER OR SELLER IN THIS PARAGRAPH 12 THE BREACHING PARTY SHALL INDEMNIFY AND
HOLD THE OTHER HARMLESS FROM ANY COST, EXPENSE, OR LIABILITY (INCLUDING THE COST
OF SUIT AND REASONABLE ATTORNEYS' FEES THROUGH THE TRIAL AND APPELLATE LEVELS)
FOR ANY COMPENSATION, COMMISSIONS OR CHARGES CLAIMED BY ANY REALTOR, BROKER, OR
AGENT IN CONNECTION WITH THIS AGREEMENT OR BY REASON OF ANY ACT OF SUCH
BREACHING PARTY. THE REPRESENTATIONS, WARRANTIES, AND INDEMNITIES CONTAINED IN
THIS PARAGRAPH SHALL SURVIVE THE RECISION, CANCELLATION, TERMINATION OR
CONSUMMATION OF THIS AGREEMENT.
13. NOTICES. ANY NOTICE OR COMMUNICATION SHALL BE IN WRITING AND SHALL BE SENT
BY EITHER: (A) PERSONAL DELIVERY SERVICE WITH CHARGES THEREFOR BILLED TO
SHIPPER; (B) OVERNIGHT OR EXPEDITED DELIVERY SERVICE WITH CHARGES THEREFOR
BILLED TO SHIPPER; (C) FACSIMILE TRANSMISSION PROVIDED A CONFIRMATION COPY IS
MAILED PURSUANT TO SUBPARAGRAPH (D) BELOW; OR (D) UNITED STATES MAIL, POSTAGE
PREPAID, REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED. ANY NOTICE OR
COMMUNICATION SENT AS ABOVE PROVIDED SHALL BE DEEMED GIVEN OR DELIVERED: (A)
UPON RECEIPT IF PERSONALLY DELIVERED (PROVIDED THAT SUCH DELIVERY IS CONFIRMED
BY THE COURIER DELIVERY SERVICE); (B) IF SENT BY UNITED STATES MAIL, ON THE DATE
APPEARING ON THE RETURN RECEIPT, OR IF THERE IS NO DATE ON SUCH RETURN RECEIPT,
THE RECEIPT DATE SHALL BE PRESUMED TO BE THE POSTMARK APPEARING ON SUCH RETURN
RECEIPT; OR (C) ON THE DATE OF ACTUAL DELIVERY BY ANY OVERNIGHT OR EXPEDITED
DELIVERY SERVICE OR ACTUAL RECEIPT IF SENT BY FACSIMILE TRANSMISSION (PROVIDED
RECEIPT IS CONFIRMED AS PROVIDED ABOVE). ANY NOTICE OR COMMUNICATION REQUIRED OR
PERMITTED HEREUNDER SHALL BE ADDRESSED AS FOLLOWS:
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TO PURCHASER:
RAMSAY YOUTH SERVICES, INC.
COLUMBUS CENTER
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇▇▇▇
FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇▇ TRAURIG, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ESQ.
FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
TO SELLER: CRESCENT REAL ESTATE FUNDING VII, L.P.
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇. ▇▇▇▇, ESQ.
FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & OAKS ▇▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ESQ.
FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
14. REMEDIES.
14.1 REMEDIES OF SELLER. EXCEPT WITH RESPECT TO A FAILURE BY PURCHASER
TO CLOSE THIS TRANSACTION WHEN PURCHASER IS OTHERWISE REQUIRED TO DO SO PURSUANT
TO THE TERMS OF THIS AGREEMENT (AS TO WHICH NO NOTICE OR CURE PERIOD SHALL BE
APPLICABLE), IN THE EVENT OF
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PURCHASER'S DEFAULT UNDER THIS AGREEMENT, SELLER AGREES TO PROVIDE PURCHASER
WITH WRITTEN NOTICE OF SUCH DEFAULT SPECIFYING THE NATURE OF SUCH DEFAULT AND
PURCHASER SHALL HAVE TEN (10) DAYS FROM THE DATE OF RECEIPT OF SAID NOTICE TO
CURE SUCH DEFAULT. IN THE EVENT PURCHASER DOES NOT CURE SUCH DEFAULT WITHIN SUCH
TEN (10) DAY PERIOD (OR IF PURCHASER FAILS TO CLOSE THIS TRANSACTION WHEN
OBLIGATED TO DO SO, WITHOUT NOTICE OR CURE PERIOD), SELLER SHALL BE ENTITLED TO
TERMINATE THIS AGREEMENT AND RECOVER THE ▇▇▇▇▇▇▇ MONEY AS ITS ONLY REMEDY EXCEPT
AS HEREAFTER PROVIDED AND THE PROVISIONS OF PARAGRAPH 14.3 SHALL APPLY. IT IS
HEREBY AGREED THAT SELLER'S DAMAGES WILL BE DIFFICULT TO ASCERTAIN AND THE
▇▇▇▇▇▇▇ MONEY CONSTITUTES A REASONABLE ESTIMATE THEREOF AND IS INTENDED NOT AS A
PENALTY, BUT AS FULL LIQUIDATED DAMAGES. SUBJECT TO THE FURTHER TERMS OF THIS
PARAGRAPH 14.1, SELLER AGREES THAT IN THE EVENT OF A DEFAULT BY PURCHASER, IT
SHALL NOT INITIATE ANY PROCEEDING TO RECOVER DAMAGES FROM PURCHASER IN EXCESS OF
THE ▇▇▇▇▇▇▇ MONEY, AND PURCHASER AGREES THAT IN THE EVENT OF ITS DEFAULT, IT
SHALL NOT INITIATE ANY PROCEEDING CHALLENGING SELLER'S RIGHT TO RETAIN OR
RECEIVE THE FULL AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY AS LIQUIDATED DAMAGES. IN THE EVENT
OF PURCHASER'S DEFAULT OR A TERMINATION OF THIS AGREEMENT, AND NOTWITHSTANDING
ANYTHING IN THIS PARAGRAPH 14.1 TO THE CONTRARY, SELLER SHALL HAVE ALL REMEDIES
AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT PURCHASER OR ANY PARTY RELATED
TO OR AFFILIATED WITH PURCHASER ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT
WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND
MARKETABLE TITLE TO THE PROPERTY. NOTHING IN THIS PARAGRAPH 14.1 SHALL LIMIT
SELLER'S RECOVERY OF DAMAGES ARISING OUT OF A BREACH OF PURCHASER'S INSPECTION
OBLIGATIONS, THE CONFIDENTIALITY OBLIGATIONS OR PURCHASER'S OBLIGATIONS PURSUANT
TO PARAGRAPH 12.
14.2 REMEDIES OF PURCHASER. EXCEPT WITH RESPECT TO A FAILURE BY SELLER
TO CLOSE THIS TRANSACTION WHEN SELLER IS OTHERWISE REQUIRED TO DO SO PURSUANT TO
THE TERMS OF THIS AGREEMENT (AS TO WHICH NO NOTICE OR CURE PERIOD SHALL BE
APPLICABLE), IN THE EVENT OF SELLER'S DEFAULT UNDER THIS AGREEMENT, PURCHASER
AGREES TO PROVIDE SELLER WITH WRITTEN NOTICE OF SUCH DEFAULT SPECIFYING THE
NATURE OF SUCH DEFAULT. SELLER SHALL HAVE TEN (10) DAYS FROM THE DATE OF RECEIPT
OF SAID NOTICE TO CURE SUCH DEFAULT. IN THE EVENT SELLER DOES NOT CURE SUCH
DEFAULT WITHIN SUCH TEN (10) DAY PERIOD, PURCHASER'S SOLE REMEDIES SHALL BE (I)
TO OBTAIN SPECIFIC PERFORMANCE OF SELLER'S OBLIGATION TO SELL THE PROPERTY TO
PURCHASER PURSUANT TO THIS AGREEMENT, OR (II) TO TERMINATE THIS AGREEMENT, IN
WHICH EVENT PURCHASER SHALL BE ENTITLED TO THE RETURN OF THE ▇▇▇▇▇▇▇ MONEY AND
THE PROVISIONS OF PARAGRAPH 14.3 SHALL APPLY. NO OTHER REMEDY SHALL BE AVAILABLE
FOR SELLER'S BREACH OF THIS AGREEMENT EXCEPT THAT IF SELLER RENDERS SPECIFIC
PERFORMANCE UNAVAILABLE BY TRANSFERRING THE PROPERTY TO A THIRD PARTY PRIOR TO
CLOSING, PURCHASER SHALL HAVE ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY;
PROVIDED HOWEVER SELLER'S LIABILITY IN SUCH CASE SHALL BE LIMITED TO
$1,000,000.00. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY: (A) PURCHASER
SHALL BE DEEMED TO HAVE ELECTED TO TERMINATE THIS AGREEMENT IF PURCHASER FAILS
TO DELIVER TO SELLER WRITTEN NOTICE OF ITS INTENT TO FILE A CLAIM OR ASSERT A
CAUSE OF ACTION FOR SPECIFIC PERFORMANCE AGAINST THE SELLER IN A COURT HAVING
JURISDICTION IN TARRANT COUNTY, TEXAS, ON OR BEFORE NINETY (90) DAYS FOLLOWING
THE CLOSING DATE, (B) PURCHASER SHALL NOT BE ENTITLED TO SEEK TO ENFORCE
SPECIFIC PERFORMANCE UNLESS ON OR BEFORE THE CLOSING DATE, PURCHASER DEPOSITS
THE ENTIRE PURCHASE PRICE (LESS THE ▇▇▇▇▇▇▇ MONEY AND ANY ADJUSTMENTS AND
CREDITS ALLOWED BY THE
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TERMS OF THIS AGREEMENT) WITH THE TITLE COMPANY WITH INSTRUCTIONS THAT SAID
AMOUNT SHALL BE PAID TO SELLER UPON SELLER'S COMPLIANCE WITH THIS AGREEMENT OR,
IN THE ALTERNATIVE, DEPOSITS $770,000.00 WITH THE TITLE COMPANY AND PROVIDES
WRITTEN EVIDENCE REASONABLY SATISFACTORY TO SELLER THAT PURCHASER HAS OBTAINED
SUFFICIENT FINANCING TO PURCHASE THE PROPERTY AND THAT SUCH LENDER IS READY,
WILLING AND ABLE TO FUND THE REMAINING AMOUNTS NECESSARY TO ACQUIRE THE
PROPERTY, SUBJECT TO NO CONDITIONS OTHER THAN CONDITIONS THAT WOULD BE SATISFIED
BY SELLER'S PERFORMANCE OF ITS CLOSING OBLIGATIONS, AND (C) PURCHASER SHALL NOT
TAKE ANY ACTION (OTHER THAN THE FILING OF SUIT SEEKING SPECIFIC PERFORMANCE)
WHICH AFFECTS SELLER'S TITLE TO THE PROPERTY OR ITS ABILITY TO CONVEY SAME.
PURCHASER'S REMEDIES SHALL BE LIMITED TO THOSE DESCRIBED IN THIS PARAGRAPH 14.2.
14.3 DISPOSITION OF ▇▇▇▇▇▇▇ MONEY. IN THE EVENT OF A TERMINATION OF
THIS AGREEMENT BY EITHER SELLER OR PURCHASER PURSUANT TO EITHER PARAGRAPH 14.1
OR PARAGRAPH 14.2, PURCHASER SHALL DELIVER THE INSPECTION DOCUMENTS TO SELLER
AND THEREAFTER TITLE COMPANY SHALL DELIVER THE ▇▇▇▇▇▇▇ MONEY TO THE PARTY
ENTITLED TO SAME PURSUANT TO THE TERMS HEREOF ON OR BEFORE THE TENTH (10TH)
BUSINESS DAY FOLLOWING DELIVERY OF WRITTEN INSTRUCTIONS ("DISBURSEMENT
INSTRUCTIONS") TO THE TITLE COMPANY AND THE PARTY NOT SENDING THE DISBURSEMENT
INSTRUCTIONS, UNLESS ON OR BEFORE SAID TENTH (10TH) BUSINESS DAY AFTER DELIVERY
OF THE DISBURSEMENT INSTRUCTIONS THE PARTY NOT SENDING THE DISBURSEMENT
INSTRUCTIONS DELIVERS TO THE TITLE COMPANY WRITTEN NOTICE THAT IT DISPUTES THE
RIGHT OF THE PARTY DELIVERING THE DISBURSEMENT INSTRUCTIONS TO RECEIVE THE
▇▇▇▇▇▇▇ MONEY. IN SUCH EVENT THE TITLE COMPANY SHALL INTERPLEAD THE ▇▇▇▇▇▇▇
MONEY INTO A COURT OF COMPETENT JURISDICTION IN TARRANT COUNTY, TEXAS. ALL
ATTORNEYS' FEES AND COSTS AND TITLE COMPANY'S COSTS AND EXPENSES INCURRED IN
CONNECTION WITH SUCH INTERPLEADER SHALL BE ASSESSED AGAINST THE PARTY WHICH IS
NOT AWARDED THE ▇▇▇▇▇▇▇ MONEY OR IF THE ▇▇▇▇▇▇▇ MONEY IS DISTRIBUTED IN PART TO
BOTH PARTIES, THEN IN INVERSE PROPORTION OF SUCH DISTRIBUTION. NOTWITHSTANDING
THE FOREGOING, IF SELLER IS ENTITLED TO RECEIVE THE ▇▇▇▇▇▇▇ MONEY, IT MAY WAIVE
THE REQUIREMENT THAT PURCHASER DELIVER THE INSPECTION DOCUMENTS BEFORE
DISBURSEMENT OF THE ▇▇▇▇▇▇▇ MONEY. FOLLOWING THE DELIVERY OF THE ▇▇▇▇▇▇▇ MONEY
TO THE APPROPRIATE PARTY, EXCEPT AS PROVIDED IN THIS PARAGRAPH 14 NEITHER PARTY
SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS PURSUANT TO THE TERMS OF THIS
AGREEMENT. NO TERMINATION PURSUANT TO PARAGRAPH 14.1 OR 14.2 SHALL TERMINATE THE
PURCHASER'S INSPECTIONS OBLIGATIONS, THE CONFIDENTIALITY OBLIGATIONS OR THE
OBLIGATIONS OF THE PARTIES PURSUANT TO PARAGRAPH 12.
15. MISCELLANEOUS.
15.1 ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN THE PARTIES. NO REPRESENTATION, PROMISE OR INDUCEMENT NOT SET FORTH
HEREIN SHALL BE BINDING UPON ANY PARTY.
15.2 NO ORAL MODIFICATIONS. THIS AGREEMENT SHALL NOT BE MODIFIED OR
AMENDED EXCEPT BY AN INSTRUMENT IN WRITING EXECUTED BY OR ON BEHALF OF PURCHASER
AND SELLER.
15.3 BINDING EFFECT. THE PROVISIONS OF THIS AGREEMENT SHALL INURE TO
THE BENEFIT OF
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AND SHALL BE BINDING UPON THE PARTIES AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND
ASSIGNS AND THE LEGAL REPRESENTATIVES OF THEIR ESTATES, SUBJECT TO THE
PROVISIONS OF PARAGRAPH 11 OF THIS AGREEMENT.
15.4 TIME OF ESSENCE/EXTENSION OF CLOSING DATE. TIME IS OF THE ESSENCE
OF THIS AGREEMENT.
15.5 DELIVERY OF POSSESSION. POSSESSION OF THE PROPERTY SHALL BE
GRANTED TO PURCHASER UPON COMPLETION OF CLOSING.
15.6 CALCULATION OF TIME. IF THE TIME PERIOD BY WHICH ANY RIGHT, OPTION
OR ELECTION PROVIDED UNDER THIS AGREEMENT MUST BE EXERCISED, OR BY WHICH ANY ACT
REQUIRED MUST BE PERFORMED, OR BY WHICH THE CLOSING MUST BE HELD, EXPIRES ON A
SATURDAY, SUNDAY OR LEGAL HOLIDAY, THEN SUCH TIME PERIOD SHALL BE AUTOMATICALLY
EXTENDED THROUGH THE CLOSE OF BUSINESS ON THE NEXT REGULAR BUSINESS DAY.
15.7 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, AND ALL OF WHICH SHALL
CONSTITUTE ONE AND THE SAME AGREEMENT.
15.8 CAPTIONS. CAPTIONS CONTAINED IN THIS AGREEMENT ARE INSERTED ONLY
AS A MATTER OF CONVENIENCE AND FOR REFERENCE, AND IN NO WAY DEFINE, LIMIT,
EXTEND OR DESCRIBE THE SCOPE OF THIS AGREEMENT NOR THE INTENT OF ANY PROVISION
HEREOF.
15.9 GOVERNING LAW. EXCEPT AS PROVIDED IN THE NEXT SENTENCE, THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF
TEXAS OTHER THAN THE LAWS RELATING TO CHOICE OF LAW. THE SUFFICIENCY OF THE DEED
TO CONVEY THE REAL PROPERTY AND THE ▇▇▇▇ OF SALE TO ASSIGN SELLER'S RIGHT TITLE
AND INTEREST IN THE PERSONALTY SHALL BE GOVERNED BY THE LAWS OF THE STATE IN
WHICH THE REAL PROPERTY IS LOCATED.
15.10 NO RECORDATION. PURCHASER SHALL NOT HAVE THE RIGHT TO RECORD THIS
AGREEMENT. IT IS EXPRESSLY AGREED AND UNDERSTOOD THAT UPON THE FILING FOR RECORD
OF THIS AGREEMENT (EXCEPT AS MAY BE LEGALLY REQUIRED IN CONNECTION WITH A SUIT
FOR SPECIFIC PERFORMANCE) BY OR THROUGH THE ACT OR EFFORT OF PURCHASER, OR ITS
SUCCESSORS, IN ANY MANNER WHATSOEVER, AS AN EXHIBIT OR ATTACHMENT TO ANY OTHER
INSTRUMENT SO FILED, OR OTHERWISE, IN THE OFFICE OF THE CLERK OF ANY COURT OF
THE COUNTY IN WHICH THE REAL PROPERTY LIES OR ANY OTHER PUBLIC RECORDS, THEN,
AND IN SUCH EVENT, AT THE OPTION OF SELLER, PURCHASER SHALL BE IN DEFAULT
HEREUNDER AND SELLER SHALL BE ENTITLED TO RECEIVE ALL OF THE ▇▇▇▇▇▇▇ MONEY AS
LIQUIDATED DAMAGES BY REASON OF SUCH DEFAULT, AND THIS AGREEMENT SHALL BE NULL
AND VOID AND OF NO FURTHER FORCE AND EFFECT EXCEPT FOR PURCHASER'S INSPECTION
OBLIGATIONS, THE CONFIDENTIALITY OBLIGATIONS AND THE PARTIES' OBLIGATIONS
PURSUANT TO PARAGRAPH 12 WHICH SHALL CONTINUE UNTIL FULLY PERFORMED.
15.11 MATERIAL CONSIDERATION. PURCHASER ACKNOWLEDGES THAT ALL OF ITS
AGREEMENTS
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SET FORTH IN THIS AGREEMENT (NOT JUST ITS AGREEMENT TO PAY THE PURCHASE PRICE),
INCLUDING BUT NOT LIMITED TO ITS AGREEMENTS SET FORTH IN PARAGRAPH 6, ARE
MATERIAL CONSIDERATION FOR SELLER'S AGREEMENT TO THE TERMS OF THIS AGREEMENT AND
BUT FOR THOSE AGREEMENTS SELLER WOULD NOT AGREE TO THE TERMS OF THIS AGREEMENT.
15.12 NO WAIVER. NO FAILURE OF ANY PARTY TO EXERCISE ANY POWER GIVEN
SUCH PARTY HEREUNDER OR TO INSIST UPON STRICT COMPLIANCE BY ANY OTHER PARTY WITH
ITS OBLIGATIONS HEREUNDER, AND NO CUSTOM OR PRACTICE OF THE PARTIES AT VARIANCE
WITH THE TERMS HEREOF SHALL CONSTITUTE A WAIVER OF ANY PARTY'S RIGHT TO DEMAND
EXACT COMPLIANCE WITH THE TERMS HEREOF.
15.13 CONSTRUCTION OF AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT
THEY HAVE BEEN REPRESENTED BY COUNSEL AND THAT EACH OF THE PARTIES HAS
PARTICIPATED IN THE DRAFTING OF THIS AGREEMENT. ACCORDINGLY, IT IS THE INTENTION
AND AGREEMENT OF THE PARTIES THAT THE LANGUAGE, TERMS AND CONDITIONS OF THIS
AGREEMENT ARE NOT TO BE CONSTRUED IN ANY WAY AGAINST OR IN FAVOR OF ANY PARTY
HERETO BY REASON OF THE RESPONSIBILITIES IN CONNECTION WITH THE PREPARATION OF
THIS AGREEMENT.
15.14 CONFIDENTIALITY. AS USED HEREIN THE TERM "PERMITTED PURPOSES"
MEANS DISCLOSURE TO ANY PERSON OR ENTITY TO WHOM DISCLOSURE IS REASONABLY
NECESSARY IN ORDER FOR A PARTY TO PERFORM ITS RESPECTIVE OBLIGATIONS PURSUANT TO
THIS AGREEMENT AND THE DISCLOSURE IS OF ONLY SUCH INFORMATION AS IS REASONABLY
NECESSARY FOR SAID PARTY TO SO PERFORM. EXCEPT AS PROVIDED OTHERWISE IN THIS
PARAGRAPH 15.14, PURCHASER AND SELLER, FOR THE BENEFIT OF EACH OTHER, HEREBY
AGREE THAT NEITHER OF THEM WILL RELEASE OR CAUSE OR PERMIT TO BE RELEASED TO THE
PUBLIC OR TO ANY PERSON OR ENTITY (EXCEPT FOR PERMITTED PURPOSES) ANY
INFORMATION, PRESS NOTICES, PUBLICITY (ORAL OR WRITTEN) OR ADVERTISING PROMOTION
RELATING TO, OR OTHERWISE PUBLICLY ANNOUNCE OR DISCLOSE OR CAUSE TO BE PUBLICLY
ANNOUNCED OR DISCLOSED, IN ANY MANNER WHATSOEVER, THE TERMS, CONDITIONS OR
SUBSTANCE OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN
(COLLECTIVELY, "CONFIDENTIAL INFORMATION"), WITHOUT FIRST OBTAINING THE CONSENT
OF THE OTHER PARTY HERETO (WHICH SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED
OR DELAYED). PURCHASER AND SELLER, BEING AWARE OF PURCHASER'S AND SELLER'S
AFFILIATION WITH A PUBLICLY-HELD CORPORATION, THE SECURITIES OF WHICH ARE TRADED
ON A NATIONAL SECURITIES EXCHANGE, ACKNOWLEDGES THAT PURCHASER, SELLER AND ITS
AFFILIATES MAY BE COMPELLED BY CONSIDERATIONS OF LEGAL OBLIGATION, FIDUCIARY AND
PUBLIC RESPONSIBILITY, COMMERCIAL PRAGMATISM AND ESTABLISHED CORPORATE POLICY TO
MAKE DISCLOSURES TO ITS AUDITORS OR LENDERS OR TO ISSUE A PUBLIC PRESS RELEASE
ANNOUNCING THAT IT HAS ENTERED INTO THIS AGREEMENT AND STATING THE MATERIAL
TERMS HEREOF; THUS, PURCHASER OR SELLER MAY MAKE SUCH DISCLOSURES AND ISSUE ONE
OR MORE PRESS RELEASES. THE PARTIES CONSENT TO ALL SUCH ADDITIONAL STATEMENTS
AND DISCLOSURES EACH PARTY MAY REASONABLY MAKE IN RESPONDING TO INQUIRIES
ARISING AS A RESULT OF ANY SUCH INITIAL DISCLOSURE OR PRESS RELEASE AS LONG AS
THE SAME ARE CONSISTENT WITH THE TERMS OF THIS PARAGRAPH 15.14. SUBJECT TO THE
FOLLOWING SENTENCE, IT IS UNDERSTOOD THAT THE FOREGOING SHALL NOT PRECLUDE
EITHER PARTY FROM DISCUSSING THE SUBSTANCE OR ANY RELEVANT DETAILS OF THE
TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT ON A CONFIDENTIAL BASIS WITH ANY OF
ITS ATTORNEYS, ACCOUNTANTS, PROFESSIONAL CONSULTANTS, FINANCIAL ADVISORS, RATING
AGENCIES, PARTNERS, INVESTORS OR POTENTIAL
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INVESTORS, OR POTENTIAL LENDERS, AS THE CASE MAY BE (COLLECTIVELY, "PERMITTED
PARTY"), BUT ONLY TO THE EXTENT NECESSARY TO COMPLETE THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT. PRIOR TO DISCLOSING ANY CONFIDENTIAL INFORMATION
TO ANY PERMITTED PARTY, THE DISCLOSING PARTY SHALL OBTAIN THE WRITTEN AGREEMENT
OF THE PERMITTED PARTY TO THE TERMS OF THIS PARAGRAPH 15.14 AND THE
CONFIDENTIALITY PROVISIONS OF PARAGRAPH 6.2. ADDITIONALLY, NOTHING HEREIN SHALL
PREVENT EITHER PARTY HERETO FROM COMPLYING WITH APPLICABLE LAWS, INCLUDING,
WITHOUT LIMITATION, GOVERNMENTAL REGULATORY, DISCLOSURE, TAX AND REPORTING
REQUIREMENTS. DISCLOSURE OF ANY INFORMATION OR DOCUMENT WHICH IS OR BECOMES
GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS A RESULT OF A DISCLOSURE BY
EITHER SELLER OR PURCHASER OR ITS RESPECTIVE AGENTS OR REPRESENTATIVES IN
VIOLATION OF THIS AGREEMENT SHALL NOT BE A VIOLATION OF THIS PARAGRAPH 15.14.
THE OBLIGATIONS CREATED BY THIS PARAGRAPH ARE CALLED "CONFIDENTIALITY
OBLIGATIONS", AND SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT. NOTWITHSTANDING ANY PROVISION OF THIS PARAGRAPH TO THE CONTRARY,
SELLER MAY DISCLOSE THE TERMS OF THIS TRANSACTION AND INFORMATION REGARDING THE
PROPERTY TO THE BANKRUPTCY COURT IN CONNECTION WITH THE BANKRUPTCY COURT'S
CONSIDERATION OF THE CHARTER AGREEMENT AND ANY OTHER MATTER COMING BEFORE THE
BANKRUPTCY COURT IN THE BANKRUPTCY PROCEEDING.
15.15 IRS REPORTING REQUIREMENTS. FOR THE PURPOSE OF COMPLYING WITH ANY
INFORMATION REPORTING REQUIREMENTS OR OTHER RULES AND REGULATIONS OF THE
INTERNAL REVENUE SERVICE ("IRS") THAT ARE OR MAY BECOME APPLICABLE AS A RESULT
OF OR IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, ANY REQUIREMENTS SET FORTH IN INCOME TAX
REGULATION SECTION 1.6045-4 AND ANY SUCCESSOR VERSION THEREOF (COLLECTIVELY THE
"IRS REPORTING REQUIREMENTS"), SELLER AND PURCHASER HEREBY DESIGNATE AND APPOINT
THE TITLE COMPANY TO ACT AS THE "REPORTING PERSON" (AS THAT TERM IS DEFINED IN
THE IRS REPORTING REQUIREMENTS) TO BE RESPONSIBLE FOR COMPLYING WITH ANY IRS
REPORTING REQUIREMENTS. WITHOUT LIMITING THE RESPONSIBILITY AND OBLIGATIONS OF
THE TITLE COMPANY AS THE REPORTING PERSON, SELLER AND PURCHASER HEREBY AGREE TO
COMPLY WITH ANY PROVISIONS OF THE IRS REPORTING REQUIREMENTS THAT ARE NOT
IDENTIFIED THEREIN AS THE RESPONSIBILITY OF THE REPORTING PERSON, INCLUDING, BUT
NOT LIMITED TO, THE REQUIREMENT THAT SELLER AND PURCHASER EACH RETAIN AN
ORIGINAL COUNTERPART OF THIS AGREEMENT FOR AT LEAST FOUR (4) YEARS FOLLOWING THE
CALENDAR YEAR OF THE CLOSING.
15.16 PURCHASER'S AGREEMENTS. PRIOR TO CLOSING, PURCHASER SHALL NOT
ENTER INTO ANY AGREEMENTS WITH ANY GOVERNMENTAL OR QUASI-GOVERNMENTAL
AUTHORITIES OR WITH ANY OTHER PERSON OR ENTITY THAT WOULD BIND SELLER OR THE
REAL PROPERTY OR RUN WITH THE REAL PROPERTY WITHOUT SELLER'S PRIOR WRITTEN
CONSENT, WHICH CONSENT MAY BE WITHHELD IN SELLER'S SOLE DISCRETION.
15.17 EXPIRATION OF OFFER. THIS AGREEMENT SHALL BE NULL AND VOID IF NOT
FULLY EXECUTED BY BOTH PARTIES HERETO ON OR BEFORE THE 9TH DAY OF JUNE, 2000.
SUBMISSION OF AN UNSIGNED COPY OF THIS AGREEMENT BY SELLER SHALL NOT CONSTITUTE
AN OFFER OR OPTION TO PURCHASE THE PROPERTY.
15.18 WAIVER OF JURY TRIAL. PURCHASER AND SELLER HEREBY WAIVE
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TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES HERETO AGAINST THE OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF PURCHASER, AND
SELLER AND ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY.
PARAGRAPH 15.18 HEREOF IS HEREBY AGREED TO AND INITIALED BY PURCHASER
AND SELLER:
---------- -------
PURCHASER SELLER
IN WITNESS WHEREOF, THE PARTIES HERETO SET THEIR RESPECTIVE HANDS AND
AFFIXED THEIR SEALS ON THE DAY AND YEAR INDICATED BELOW.
PURCHASER:
RAMSAY YOUTH SERVICES, INC.
BY:
---------------------------------
NAME:
-------------------------------
TITLE:
------------------------------
DATE EXECUTED:
-------------------------
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SELLER:
CRESCENT REAL ESTATE FUNDING VII, L.P.
BY: CRE MANAGEMENT VII CORP.,
A DELAWARE CORPORATION
ITS GENERAL PARTNER
BY:
---------------------------------
NAME:
-------------------------------
TITLE:
------------------------------
DATE EXECUTED:
-------------------------
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JOINDER BY TITLE COMPANY
REPUBLIC TITLE OF TEXAS, INC. REFERRED TO IN THIS AGREEMENT AS THE "TITLE
COMPANY", HEREBY ACKNOWLEDGES THAT IT RECEIVED THIS AGREEMENT EXECUTED BY SELLER
AND PURCHASER ON THE ________ DAY OF __________________, 2000, AND ACCEPTS THE
OBLIGATIONS OF THE TITLE COMPANY AS SET FORTH HEREIN. THE UNDERSIGNED FURTHER
ACKNOWLEDGES THAT IT RECEIVED THE DEPOSIT ON THE ________ DAY OF ____________,
2000, AND ACCEPTS THE OBLIGATIONS OF THE TITLE COMPANY AS SET FORTH HEREIN. THE
TITLE COMPANY HEREBY AGREES TO HOLD AND DISTRIBUTE THE ▇▇▇▇▇▇▇ MONEY IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT.
REPUBLIC TITLE OF TEXAS, INC.
BY:
------------------------------
ESCROW OFFICER
ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT A
(ATTACH LEGAL DESCRIPTION)
