EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") dated as of October 24,
2005 (the "EFFECTIVE DATE"), is among the following: the entities listed on
EXHIBIT "A-1" hereto, each a "SELLER" and collectively "SELLERS", and each
having its principal address at Suite 600, 0000 XXX Xxxxxxxxx, Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000, with the Sellers' obligations under Section 11(a) of
this Agreement being guaranteed by Sellers' affiliate, Medical Office Portfolio
Limited Partnership, a Florida limited partnership ("SELLERS' GUARANTOR"),
having its principal address at Xxxxx 000, 0000 XXX Xxxxxxxxx, Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000, and the entities listed on EXHIBIT "A-2" hereto, each a
"BUYER" and collectively "BUYERS", and each having its principal address at
Suite 210, 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, with the Buyers'
obligations under this Agreement being guaranteed by Windrose Medical Properties
Trust, a Maryland REIT, having its principal address at Xxxxx 000, 0000 Xxxxxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("BUYERS' GUARANTOR"). Hereinafter Buyers and
Sellers are sometimes referred to individually as a "PARTY" or collectively as
the "PARTIES."
Recitals
Each Seller identified on EXHIBITS "B-1" through "B-10" hereto is the fee
owner of the real property described on said exhibit (the "FEE INTERESTS"). The
Fee Interests are sometimes referred to herein collectively as the "PROPERTIES."
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree to the
terms and conditions set forth below and as set forth in the Exhibits and
Schedules to this Agreement.
Agreement
1. Recitals; Sale of Interests. The foregoing recitals are true and correct and
are hereby incorporated into this Agreement. Sellers, respectively, agree to
sell the Properties to Buyers, and Buyers, respectively, agree to purchase the
Properties, subject to the terms and conditions set forth in this Agreement.
2. Purchase Price. The aggregate purchase price (the "PURCHASE PRICE") for the
Properties is One Hundred Six Million Eighty Eight Thousand Seventy One and
00/100 U.S. Dollars ($106,088,071.00), to be allocated among the Properties as
set forth on SCHEDULE "A-1", subject to such credits and charges to Sellers and
Buyers as may be provided for in this Agreement and the exhibits hereto.
3. Payment of Purchase Price. Buyers will pay the Purchase Price as follows:
(a) Loan Assumption; Mortgage; Substitute Guaranty; Lender Consent. The
Properties are subject to the terms of certain loans secured by deeds of trust
and/or mortgages executed in favor of the lenders (the "LENDERS") and recorded
in the respective public records of the applicable jurisdictions, all as set
forth on SCHEDULE "B-1" hereto, which includes the original principal amount of
each such loan (collectively, the "MORTGAGES"). The aggregate estimated
outstanding balances of the Mortgages as of the Effective Date is Sixty Five
Million Seven Hundred Sixteen Thousand One Hundred Thirty One and 00/100 U.S.
Dollars ($65,716,131.64). From the Effective Date until Closing, Sellers shall
continue to pay, in the
1
ordinary course of business, amounts due under the Mortgages. At Closing,
Sellers shall have no obligation to cause the Mortgages to be satisfied or the
principal balance thereof to be reduced in any manner. Sellers have submitted
their request to each Lender for consent and approval of the transfer of the
Properties to Buyers hereunder and assumption of the Mortgages by Buyers, and
for each Lender's acceptance of a substitute guaranty of the Mortgage and/or
indemnity of the Lender by Buyers or their affiliates (as applicable). Buyers
and Sellers shall each use their commercially reasonable efforts to expedite the
Lenders' consent and approval of the transfer and assumption and the substitute
guaranty of the Mortgages and indemnity of the Lenders by Buyers or their
affiliates (as applicable). Buyers will provide each Lender with a substitute
guaranty for applicable obligations under the Mortgage by Guarantor in
substitution of the existing guaranty of the Mortgage, and Buyers will provide
each Lender with a substitute indemnity for applicable obligations (including
environmental matters) under the Mortgage by Guarantor in substitution of the
existing indemnity of the Lender. Each Lender's consent to the assumption of
such Lender's Mortgage by Buyers shall include a full release of all
environmental indemnities, pledges and guaranties given by any of the Sellers
and/or any affiliates of Sellers, and/or any individual interest holder in
Sellers and/or any affiliates of Sellers, for obligations arising from and after
the date of the purchase of the Properties by Buyers ("RELEASES"). Buyers have
completed all due diligence that Buyers deem necessary with respect to the terms
and conditions of the Mortgages and the loan documents associated with the
Mortgages ("LOAN DOCUMENTS"). If the terms and conditions of any Mortgages or
Loan Documents, including the applicable Lenders' requirements for consents to
the transactions herein and the substitute guaranties and/or indemnities, are
not acceptable to Buyers for any reason, or if any Lenders do not consent to the
transactions herein and the substitute guaranties and/or indemnities and the
Releases, the same shall not excuse Buyers' obligation to close under this
Agreement and Buyer's rights and obligations with respect thereto shall be as
set forth in Section 7(a) below. With respect to the Releases, Sellers
acknowledge that the forms of Releases attached hereto as SCHEDULE "Z", are
acceptable to Sellers if provided by the Lenders in connection with this
transaction.
(b) After crediting against the Purchase Price only the outstanding balance
of principal and interest of each Mortgage at the date of Closing (and
specifically excluding from such credit, without limitation, any and all amounts
that may be required to be paid to any Lender or to any other person or entity
(including, without limitation, Lender's attorneys or other representatives) in
connection with the Lenders' consents to the transfers of the Properties and/or
the satisfaction or defeasance of any Mortgage(s) as provided for in Section
7(a)), the balance of the Purchase Price shall be paid by Buyers to Sellers at
Closing by a wire transfer of immediately available funds, as adjusted by the
adjustments and prorations and allocated as set forth in this Agreement and the
exhibits hereto (the "PRORATIONS").
4. Inspection of Properties.
(a) Prior to the Effective Date, Buyers have been provided the opportunity
to complete their due diligence and fully review and evaluate this transaction
as it relates to the Properties, including, without limitation, all matters
related to:
(i) The net operating income of the Properties, including (without
limitation) all assumptions as to vacancies, expiring leases, renewals or
otherwise;
2
(ii) The physical condition of the Properties;
(iii) All title and survey matters with respect to the Properties;
(iv) All hazardous waste and environmental matters with respect to the
Properties;
(v) Review and audit of the books and records of the Properties;
(vi) All governmental inquiries with respect to the Properties; and
(vii) All "Tenant" (as hereinafter defined) interviews with respect to
the Properties.
Further, Sellers have provided to Buyers, and Buyers hereby acknowledge receipt
of, the items set forth on SCHEDULE "A-2" hereto. Based on Buyers' due diligence
and review and evaluation of this transaction as it relates to the Properties,
Sellers have agreed to give Buyers an aggregate credit in the amount set forth
on SCHEDULE "A-3" hereto and allocated among the Properties as set forth on
SCHEDULE "A-3" hereto, in full and complete satisfaction of any and all matters
of any nature with respect to the Properties, and in no event will Buyers be
excused from their obligations to close under this Agreement on the purchase of
any of the Properties, or have the right to receive any other purchase price
adjustment, credit, or other consideration of any kind, or have the right to
extend the Closing, as a result of any matters of any nature with respect to the
Properties, except as otherwise expressly provided in this Agreement.
Accordingly, except as otherwise expressly set forth in this Agreement, the sale
of the Properties are being made on an "AS IS", "WHERE IS" condition and basis
"WITH ALL FAULTS". Nothing herein shall be deemed to limit any representation,
warranty or obligation of Sellers under this Agreement.
(b) From and after the Effective Date, all title and survey matters
affecting each Fee Interest as shown in the title commitments and surveys listed
on SCHEDULE "C", other than any liens or monetary encumbrances (excluding the
Mortgages) resulting from a Seller's actions, shall be deemed to be accepted by
Buyers ("PERMITTED EXCEPTIONS"). If any material title matter arises after the
Effective Date that would render title to a Fee Interest unmarketable (a
"MATERIAL TITLE DEFECT"), other than any liens or encumbrances on the Fee
Interest (excluding the Mortgages) resulting from the Seller's actions (which
shall be paid at or before Closing), then, within five (5) days after Buyers
have actual notice of same, Buyers may notify Sellers in writing, specifying
Buyers' objection to such title matter (a "NOTICE OF MATERIAL TITLE DEFECT"). If
Sellers agree with Buyers' Notice of Material Title Defect, then Sellers shall
undertake the cure of such Material Title Defect and, if necessary in Sellers'
sole discretion, Sellers may extend the Closing of the transaction contemplated
under this Agreement for up to thirty (30) days to cure such Material Title
Defect; provided that such Closing extension shall relate to the affected
Properties only and shall not affect the closings of any of the other Properties
(or the closings under any "Affiliate Contracts" as defined in SCHEDULE "V-5")
unless Sellers, in their sole discretion, also elect to extend the closings of
any of the other Properties (or affiliates of Sellers, in their sole discretion,
also elect to extend the closings under any Affiliate Contracts) pending the
cure of such Material Title Defect. In no event shall Sellers be obligated to
initiate suit in connection with the cure of any Material Title Defect. If
Sellers disagree with the Buyers' Notice of Material Title Defect, then Sellers
shall specify to Buyer, in writing, their grounds for
3
disagreement therefor and propose a good faith resolution of such Material Title
Defect, which resolution may include re-structuring the transaction contemplated
under this Agreement as to such Fee Interest as an interest sale, to the extent
that such re-structuring does not create any new significant adverse matters to
any Party. If such proposed resolution is mutually agreeable to Buyers, in
Buyers' good faith determination, then Buyers shall provide written notice to
Sellers of same and the parties shall proceed to Closing under this Agreement
(and the Affiliate Contracts, as applicable), subject to the terms contained
herein. If: (i) Buyers disagree with the Sellers' proposed resolution of the
Material Title Defect and the parties are otherwise unable to agree upon a
mutually acceptable resolution of such Material Title Defect within ten (10)
days following the Buyers' Notice of Material Title Defect, or (ii) Sellers are
unable to cure a Material Title Defect within the aforementioned thirty (30) day
cure period, then, unless Buyers agree to rescind the Notice of Material Title
Defect, Sellers shall have the right, in Sellers' sole discretion and upon
written notice to Buyers, to: (x) exclude the applicable Properties from this
transaction (and adjust the Purchase Price in accordance with the purchase price
allocations set forth SCHEDULE "A-1"or as otherwise agreed by the Parties)
without terminating or otherwise affecting the enforceability of this Agreement
as to any of the other Properties or the enforceability of any Affiliate
Contracts, and the parties shall thereafter be released from all further
obligations under this Agreement with respect to such excluded Properties,
except those obligations specifically provided herein to survive the termination
of this Agreement; or (y) terminate this Agreement and/or any of the Affiliate
Contracts. If Sellers elect to terminate this Agreement, then the Parties shall
thereafter be released from all further obligations under this Agreement, except
those specifically provided herein to survive the termination of this Agreement.
If Buyers do not timely deliver a Notice of Material Title Defect, then Buyers'
rights to object to such Material Title Defect shall be waived and Buyers shall
be obligated to proceed to Closing, subject to the terms and conditions of this
Agreement.
5. Sellers' Representations and Warranties. Each of the Sellers represents and
warrants to Buyers that, as to the "Property" (as hereinafter defined) owned by
such Seller, as of the date hereof:
(a) The Seller owns the following property:
(i) Subject to Permitted Exceptions and the Mortgage (and, as to the
Desert Springs Property, the "Desert Springs Ground Lease" and the "Desert
Springs Ground Sublease", each as hereinafter defined), good and marketable
leasehold title and interest in and to the Fee Interest, together with the
Seller's right, title and interest (if any) in and to all open or proposed
xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys, easements, strips, gores, and
rights-of-way in, on, contiguous to, abutting or adjoining the Fee Interest, as
well as all structures, buildings, improvements and fixtures located on or
forming part of the Fee Interest, together with all fixtures owned by the Seller
and all equipment and appliances owned by the Seller and used in connection with
the operation or occupancy of the improvements such as heating and
air-conditioning and ventilation systems and facilities used to provide any
utility services, as same may exist at Closing in the ordinary course of
Sellers' business (the "IMPROVEMENTS");
(ii) As to the Desert Springs Property, subject to the Permitted
Exceptions and the rights of the Lender, the applicable Seller owns a landlord's
interest in and to that certain Ground Lease from the Seller to Xxxxx
HealthSystem Desert, Inc. ("XXXXX"), a Memorandum of which is recorded as
Document Number 1999-340951 in the Official Records of Riverside
4
County, California (the "DESERT SPRINGS GROUND LEASE"), a copy of which is
attached hereto as SCHEDULE "AA".
(iii) As to the Desert Springs Property, subject to the Permitted
Exceptions and the rights of the Lender, the applicable Seller owns good,
marketable and unencumbered subleasehold title and interest pursuant to that
certain ground sublease by and between Xxxxx, as ground sublessor, and the
applicable Seller, as ground sublessee, as evidenced by Memorandum of Ground
Sublease dated July 26, 1999, recorded as Document Number 1999-34092 in the
Official Records of Riverside County, California (the "DESERT SPRINGS GROUND
SUBLEASE"), a copy of which is attached hereto as SCHEDULE "BB".
(iv) Except as otherwise provided herein, the Permitted Exceptions and
the Mortgage, good and marketable title and interest in and to all personal
property held by the Seller, including, but not limited to, the Seller's rights
(if any) to all architectural, mechanical, electrical and structural plans,
studies, drawings, specifications, surveys, renderings and other technical
descriptions that relate to the Fee Interest, in possession of the Seller or the
Seller's agent and subject to the rights of the Lender, as same may exist at
Closing in the ordinary course of Seller's business (the "PERSONAL PROPERTY");
(v) The leases and license agreements between each Seller and the
tenants with respect to the Improvements owned by such Seller, as same may exist
at Closing in the ordinary course of Seller's business (such tenants are
hereinafter referred to as "TENANTS" and all such leases and license agreements
of any Tenants are hereinafter referred to as "LEASES"); and
(vi) The Seller's interest (if any) in all transferable licenses,
permits and warranties in effect with respect to the Fee Interest, the
Improvements and the Personal Property as set forth on SCHEDULES "D-1" through
"D-10" (the "LICENSES"), an interest in all written service, maintenance or
related vendor contracts as set forth on SCHEDULES "E-1" through "E-10" (the
"SERVICE CONTRACTS") in effect at Closing, and all equipment leases and rights
of the Seller thereunder (if any) relating to equipment or property located on
the Fee Interest and which may survive the Closing as set forth on SCHEDULES
"F-1" through "F-10" (the "EQUIPMENT LEASES"), as all of the foregoing may exist
at Closing in the ordinary course of Seller's business (collectively, the
"INTANGIBLE PROPERTY") (as to each Fee Interest, such Fee Interest (and as to
the Desert Springs Property, the Seller's interests in the Desert Springs Ground
Lease and the Desert Springs Ground Sublease) together with the Improvements,
the Personal Property, the Leases and the Intangible Property with respect
thereto, are collectively referred to as the "PROPERTY").
(b) The rent rolls attached hereto as SCHEDULES "G-1" through "G-10" are a
true, accurate and complete listing, as of the date hereof, of each Tenant,
space occupied, lease term, current rent, Lease start and expiration date for
the Property (herein the "RENT ROLL"), and Sellers have provided to Buyers a
true, accurate and complete copy of each Lease set forth on the Rent Roll. Each
Lease so delivered is, as of the Effective Date, in full force and effect and
has not been amended, modified or supplemented in any material way except as set
forth in the copies of the Lease provided to Buyers pursuant to this Section.
Except as otherwise disclosed by Sellers to Buyers in writing, as of the
Effective Date, to Sellers' knowledge there are no defaults by Tenants under any
of the Leases. Except as otherwise disclosed by Sellers to Buyers in writing or
as set forth in the Leases, the Sellers have not committed to any tenant
improvements or allowances for periods arising after the Closing, and as of the
Closing all tenant improvements,
5
repairs and other work and obligations, if any, then required to be performed by
the Sellers under each of the Leases will be fully performed, credited or paid
for prior to or at Closing, as applicable. None of the Leases or rents payable
thereunder has been assigned, pledged or encumbered, except to the Lender. The
Desert Springs Ground Lease and the Desert Springs Ground Sublease affecting the
Desert Springs Property are, as of the date hereof: (i) in full force and
effect; and (ii) have not been amended, modified or supplemented in any material
way except as set forth in the copy of the Desert Springs Ground Lease and
Desert Springs Ground Sublease provided by the applicable Seller to the
applicable Buyer. Except as otherwise disclosed by the applicable Seller to the
applicable Buyer in writing, to the applicable Seller's knowledge, there are no
defaults under the Desert Springs Ground Lease or Desert Springs Ground Sublease
by Xxxxx or by the applicable Seller.
(c) Except as set forth on the Tenant rent arrearage schedule attached
hereto as SCHEDULES "H-1" through "H-10", as of the Effective Date, no rents
have been paid more than one (1) month in advance by any Tenant under any Lease
and any Tenant rent arrearages are set forth on such schedule. Except as set
forth on the Tenant rent arrearage schedule, as of the Effective Date, no
additional rents have been collected for the period subsequent to the Closing.
(d) All "Tenant Security Deposits" held by the Sellers as of the Effective
Date are as set forth on the Tenant security deposit schedule attached hereto as
SCHEDULES "I-1" through "I-10". For purposes of this Agreement, "TENANT SECURITY
DEPOSITS" shall mean and include all security deposits, escrow deposits, reserve
funds, security interests, letters of credit, pledges, prepaid rent or other
sums, deposits or interests held by a Seller or by any other Person for the
benefit of the Seller with respect to the Leases. All unapplied security
deposits, reserve accounts, escrow funds or other similar payments paid by the
Tenants are held by each Seller in accordance with the terms and provisions of
the Leases.
(e) All "Tenant Inducement Costs" and "Leasing Commissions" payable with
respect to the Leases which exist or are pending as of the date hereof are set
forth on SCHEDULES "J-1" through "J-10". Further, SCHEDULE "J-11" sets forth all
"Tenant Inducement Costs" and "Leasing Commissions" payable with respect to the
vacant spaces specified on said exhibits. For purposes hereof, "TENANT
INDUCEMENT COSTS" shall mean any payments required under a Lease to be paid by
the landlord thereunder (including the cost of work to be performed by or on
behalf of the landlord) to or for the benefit of the Tenant thereunder, which is
in the nature of a tenant inducement or concession, including, without
limitation, rent concessions, tenant improvement costs, and other work
allowances, lease buyout costs, legal fees and other expenses and moving
allowances. The term "LEASING COMMISSIONS" shall mean any leasing commission
payable to any broker in connection with the Leases for the initial term or any
renewal, or extension period and/or expansion option. As set forth on SCHEDULES
"J-1"through "J-10", Tenant Inducement Costs and Leasing Commissions, under each
of the Leases will be fully performed, credited or paid for by Sellers prior to,
at or subsequent to the Closing in accordance with the applicable Leases. Except
as set forth on SCHEDULES "J-1"through "J-10", as of the Effective Date, Sellers
have not committed to any Tenant Inducement Costs and Leasing Commissions,
repairs or other work obligations for periods arising after the Closing;
provided, however, that rent abatements and rent concessions as shown on
Schedules "J-1" through "J-10" for periods subsequent to Closing shall be
credited at Closing. Tenant Inducement Costs and Leasing Commissions, repairs
and other work obligations, if any, set forth on SCHEDULE "J-11" will not be
fully performed, credited or paid for by Sellers prior to Closing; instead,
Sellers shall be responsible
6
for such obligations after Closing (including leasing commissions due to
"Paramount" (as hereinafter defined) or "HPMA" (as hereinafter defined), as
applicable, under the applicable management agreement in connection with the
leasing of such vacant spaces), and Sellers will, at their option, either: (i)
provide Buyers with a credit at Closing against the Purchase Price in the amount
of such Tenant Inducement Costs and Leasing Commissions, or (ii) pay such Tenant
Inducement Costs and Leasing Commissions directly to the new tenant(s) for such
reasonable period of time following the Closing not to exceed one (1) year.
Buyers shall be solely responsible for the tenant improvement costs, if any, for
the renewals of any existing Leases, as well as all leasing commissions due to
Paramount or HPMA, as applicable, under the applicable management agreement in
connection with the renewals of such existing Leases, including those tenant
improvement costs and leasing commissions set forth on SCHEDULE "J-12".
(f) All "MORTGAGE RESERVES", which shall mean all sums deposited by a
Seller with a Lender as additional security for the payment of taxes, insurance,
repairs and replacements, tenant improvements and leasing commissions as of the
Effective Date are set forth on SCHEDULES "K-1"through "K-10", and those
Mortgage Reserves that exist as of the Closing in the ordinary course of
Sellers' business, shall be credited to Sellers at Closing and Buyers shall be
solely responsible for Lender's return of Mortgage Reserves to Buyer.
(g) All management agreements with respect to the Properties are listed on
SCHEDULES "L-1"through "L-10". For purposes of this Agreement, "MANAGEMENT
AGREEMENTS" shall mean all property management agreements, brokerage or leasing
commission agreements or agreements to compensate a third party for the
management or leasing for a Property on behalf of a Seller. As of the Closing
and subject to Lender's consent, all such management agreements shall be
terminated by the Sellers and, with the exception of the new property management
agreements between the Sellers and Healthcare Property Managers of America, LLC,
a Florida limited liability company d/b/a Paramount Real Estate Services
("HPMA"), an affiliate of Paramount that each Buyer, on behalf of each Seller,
will enter into and deliver at Closing as provided in paragraph (a)(x) of
SCHEDULE "V" hereto, no property management compensation, brokerage or leasing
commissions or similar compensation will be due or payable by the Sellers or the
Buyers (except as the result of any acts of the Buyers) with respect to the
Sellers' ownership of the Properties or any Lease (including any extensions or
renewals thereof) except as otherwise disclosed to Buyers in writing or set
forth herein.
(h) Except for the Lenders' consents, the execution, delivery and
performance of this Agreement by Sellers has been duly authorized and no consent
of any other person or entity to such execution, delivery and performance is
required to render this document a valid and binding instrument enforceable in
accordance with its terms.
(i) To the extent that FIRPTA is applicable, Sellers are not a "foreign
person" within the meaning of the United States tax laws, to which reference is
made in Internal Revenue Code Section 1445(b)(2) and, to the extent required by
FIRPTA, each Seller will execute and deliver at Closing the FIRPTA certificate
attached hereto as SCHEDULE "M ".
(j) Subject to obtaining the Lenders' consents to transfer of the
Properties, the entering into this Agreement (and the sale of the Properties to
Buyers) (i) will not constitute a violation or breach by Sellers of: (a) the
"Partnership Agreement" (as hereinafter defined) of each Seller that is a
partnership, the Operating Agreement" (as hereinafter defined) of each Seller
7
that is a limited liability company, or any contract, agreement, understanding
or instrument to which it is a party or by which Sellers or the Sellers are
subject or bound; or (b) any judgment, order, writ, injunction or decree issued
against or imposed upon them; and (ii) will not result in the violation of any
applicable law, order, rule or regulation of any governmental or
quasi-governmental authority.
(k) Subject to obtaining the Lenders' consents to transfer of the
Properties, Sellers do not need any further consents, joinders or authorizations
from any governmental or private entity, corporation, partnership, individual or
other entity to execute, deliver and perform their obligations under this
Agreement, and to consummate the transactions contemplated hereby, and, subject
to the Permitted Exceptions, the Properties are not subject to any rights of
first refusal or options to purchase as a result of the transactions
contemplated herein, except as was previously disclosed to Buyers in writing.
(l) Each of the Service Contracts in effect on the Effective Date are
listed on SCHEDULES "E-1"through "E-10" (the "SERVICE AGREEMENTS") and may be
cancelled by the Sellers upon thirty (30) days written notice to the other party
thereto, unless otherwise set forth in the Service Contracts. Except for the
Service Contracts, as of the Effective Date, there are no service contracts,
oral or written, with respect to the Properties or binding on the Sellers.
(m) Except for the Permitted Exceptions, the Partnership Agreements, the
Operating Agreement, the Leases, the Desert Springs Ground Lease, the Desert
Springs Ground Sublease, the Mortgages, the Management Agreements, the Licenses,
the Service Contracts and the Equipment Leases, all as set forth on the Exhibits
hereto, and except as disclosed in writing to Buyers, as of the Effective Date,
there are no other contracts or agreements, oral or written, with respect to the
Sellers that will survive the Closing.
(n) Except as may be disclosed in the environmental reports listed on
SCHEDULES "N-1"through "N-10", Sellers have no knowledge, without any duty of
further investigation, of any generation, production, storage, treatment,
discharge, or release of any toxic or hazardous substance or pollutant on or
under any portion of the Properties.
(o) Except as otherwise disclosed to Buyers on SCHEDULE "O", as of the
Effective Date, there are no (i) claims, actions, suits, condemnation actions or
proceedings pending or, to the best of Sellers' knowledge, threatened (including
without limitation bankruptcy) against Sellers or the Properties, that would
materially and adversely affect the Properties, or (ii) violations of any law,
statute, government regulations or requirement, including any private covenants
or restrictions, that would materially and adversely affect the Properties.
(p) The Properties are serviced by sufficient utilities offered by public
utility companies, and all assessments and charges owing to such utilities are
and will remain current through the last billing period prior to Closing and
will be pro-rated at Closing.
(q) The Properties are subject to the Mortgages. Except for the Mortgages,
to the best of Sellers' knowledge, without inquiry or investigation, the
Properties are not subject to or encumbered by any other indebtedness caused by
the Sellers, including but not limited to mechanic's or materialmen's liens or
any other monetary encumbrance caused by the Sellers. Any mortgage, deed of
trust or other indebtedness or monetary encumbrance that is caused by
8
the Sellers and encumbers any Property (other than the Mortgages) shall be paid
by the Sellers at Closing. Any other monetary encumbrance shall be deemed a
title defect to be governed in accordance with Section 4(b) above.
(r) There are no due but unpaid real estate, income, sales or any other
federal, state or local tax liabilities of Sellers, whether contingent or
otherwise, which affect the Properties or which, by application of law or
otherwise, Buyers would become responsible for as a result of the acquisition of
the Properties, other than sales tax due for the month of Closing, which shall
be prorated as hereinafter provided. Sellers have no knowledge of any threatened
tax audit. Sellers have each filed all required federal, state and local tax
returns and have made provision for the payment of such taxes, if any, as set
forth in the Financial Statements. There are no present or pending disputes as
to taxes of any nature and payable by Sellers, or proposed assessments or any
federal, state or local taxes pending against Sellers.
(s) Sellers have previously provided Buyers with (i) the balance sheet of
each Seller as of December 31, 2004, and (ii) related statements of income and
retained earnings and changes in financial position for the fiscal year ended
December 31, 2004, together with such supporting schedules as prepared by
Sellers and as certified by Sellers as presenting fairly the financial position
of the Property Owner as of the respective dates of said balance sheets and
results of operations and changes in financial position of Sellers for the
respective periods prepared on a basis consistent with that of the preceding
periods and in accordance with generally accepted accounting principles (the
"FINANCIAL STATEMENTS"). The fiscal year of each Seller is the calendar year.
(t) Attached hereto as SCHEDULES "Q-1"through "Q-10"is a complete and
correct list of all insurance policies maintained with respect to each Property.
All policies of fire, liability and other forms of insurance with respect to
each Property are in full force and effect and all premiums due on or before the
Closing Date have been or will be paid on or before the Closing Date.
(u) All representations and warranties of Sellers made in this Section 5
shall expire on the first (1st) anniversary of the Closing, except that if a
claim is made hereunder with respect to a breach of such representation and
warranty prior to the first (1st) anniversary of the Closing, then such
representation and warranty shall survive as to such claim until a full and
complete adjudication of such claim.
6. Representations of Buyers. Buyers represent and warrant to Sellers that as of
the date hereof and as of the Closing Date:
(a) The execution, delivery and performance of this Agreement by Buyers has
been duly authorized and no consent of any other person or entity to such
execution, delivery and performance is required to render this document a valid
and binding instrument enforceable in accordance with its terms.
(b) The entering into this Agreement (and the purchase of the Properties by
Buyers): (i) shall not constitute a violation or breach by Buyers of: (x) any
contract, agreement, understanding or instrument to which it is a party or by
which Buyers are subject or bound; or (y) any judgment, order, writ, injunction
or decree issued against or imposed upon Buyers; and (ii)
9
will not result in the violation of any applicable law, order, rule or
regulation of any governmental or quasi-governmental authority.
(c) Subject to obtaining the Lenders' consents, Buyers do not need any
further consents, joinders or authorizations from any governmental or private
entity, corporation, partnership, individual or other entity to execute, deliver
and perform their obligations under this Agreement, and to consummate the
transactions contemplated hereby.
All representations and warranties of Buyers made in this Section 6 shall
expire on the first (1st) anniversary of the Closing, except that if a claim is
made hereunder with respect to a breach of such representation and warranty
prior to the first (1st) anniversary of the Closing, then such representation
and warranty shall survive as to such claim until a full and complete
adjudication of such claim.
7. Closing. Subject to satisfaction or waiver of all conditions precedent to
Sellers' and Buyers' obligations to sell and purchase the Properties,
respectively, the transaction contemplated by this Agreement shall be
consummated in accordance with this Agreement (the "CLOSING") on December 5,
2005 or such earlier date agreed to by Sellers and Buyers in writing or such
later date as may be expressly provided for in this Agreement or the Escrow
Agreement (as herein defined), if applicable as to Deferred Closings (as herein
defined). The date upon which the Closing occurs as to each Property is referred
to as the "CLOSING DATE"; it being agreed, however, that the Parties shall use
good faith efforts to consummate the Closing of Atrium Office Park and
Southpointe Medical Center on or before November 9, 2005 if the Required Lender
Consents (as defined below) have then been obtained. The Closing will take place
at the offices of Sellers or Sellers' legal counsel, in Palm Beach County,
Florida. Notwithstanding the foregoing, Sellers and Buyers shall work
cooperatively and in good faith to effectuate an "escrow closing" as opposed to
a "sit-down" closing pursuant to a written escrow agreement acceptable to
Sellers and Buyers and their respective counsel. The Parties shall not be
obligated to purchase or to sell a Property or close the transactions
contemplated hereunder with respect to such Property until the conditions
precedent to such Party's respective obligations as set forth herein are
completely satisfied or waived. If, at or prior to the Closing, one or more of
the conditions precedent to a Party's obligation are not completely satisfied or
waived, such Party shall provide written notice to other Party of the
unsatisfied conditions precedent and both Parties agree to use their
commercially reasonable efforts to satisfy all conditions precedent to their
respective obligations to close. If the conditions precedent are still not
satisfied as of Closing, and unless Buyers or Sellers waive, in writing, such
conditions precedent to their respective obligations to close, as applicable,
then Sellers, in their sole discretion, may extend the Closing of the
transaction contemplated under this Agreement for up to thirty (30) days to
permit satisfaction of the conditions precedent, provided that such Closing
extension shall relate to the affected Properties only and shall not affect the
closings of any of the other Properties (or the closings under any "Affiliate
Contracts" as hereinafter defined) unless Sellers, in their sole discretion,
also elect to extend the closings of any of the other Properties (or affiliates
of Sellers, in their sole discretion, also elect to extend the closings under
any Affiliate Contracts) pending satisfaction of the conditions precedent. If
Sellers elect not to extend the Closing, or the Closing is extended but the
conditions precedent are not satisfied or waived notwithstanding such extension,
then Sellers shall, upon written notice to Buyers, elect either to: (i) exclude
the applicable Properties from this transaction (and adjust the Purchase Price
in accordance with the purchase price allocations set forth SCHEDULE "A-1" or as
otherwise agreed by the Parties)
10
without terminating or otherwise affecting the enforceability of this Agreement
as to any of the other Properties or the enforceability of any Affiliate
Contracts and the parties shall thereafter be released from all further
obligations under this Agreement with respect to such excluded Property, except
those obligations specifically provided herein to survive the termination of
this Agreement, or (ii) terminate this Agreement and/or any of the Affiliate
Contracts. The foregoing election by Sellers shall be made in Sellers' sole
discretion. If Sellers elect to terminate this Agreement, then the parties shall
thereafter be released from all further obligations under this Agreement, except
those specifically provided herein to survive the termination of this Agreement.
(a) If all conditions precedent to Sellers' and Buyers' obligations to sell
and purchase the Properties, respectively, as set forth in this Agreement, have
been satisfied or waived, as applicable by the respective parties, except the
requirement that the Lenders consent to the transfer of the Properties and the
Releases (collectively, the "REQUIRED LENDER CONSENTS") and except for the
"Settlement Statements" (as defined in SCHEDULE "W") and any other documents
that cannot practically be delivered until the actual Closing Date is known,
then with respect to those Sellers for which the Required Lender Consents have
not been obtained prior to Closing, the following provisions shall apply:
(i) Sellers, in their sole discretion, may extend the Closing of the
transaction contemplated under this Agreement for up to thirty (30) days to
permit Buyers and Sellers to acquire the Required Lender Consents, provided that
such Closing extension shall relate to the affected Properties only and shall
not affect the closings of any of the other Properties (or the closings under
any "Affiliate Contracts" as hereinafter defined) unless Sellers, in their sole
discretion, also elect to extend the closings of any of the other Properties (or
affiliates of Sellers, in their sole discretion, also elect to extend the
closings under any Affiliate Contracts) pending receipt of the Required Lender
Consents; or,
(ii) If Sellers elect not to extend the Closing, or if the Closing is
extended but the Required Lender Consents are not received within the extension
period, then, notwithstanding such extension, Sellers shall, upon written notice
to Buyers, elect to:
(1) Exclude one or more of the applicable Properties from this
transaction (and adjust the Purchase Price in accordance with the purchase price
allocations set forth SCHEDULE "A-1"or as otherwise agreed by the Parties)
without terminating or otherwise affecting the enforceability of this Agreement
as to any of the other Properties or the enforceability of any Affiliate
Contracts, and the parties shall thereafter be released from all further
obligations under this Agreement with respect to such excluded Properties,
except those obligations specifically provided herein to survive the termination
of this Agreement; and/or
(2) Require that one or more of the Properties for which the
Required Lender Consents have not been received (the "DEFERRED CLOSINGS") be
closed in escrow, pursuant to an escrow agreement between the applicable Sellers
and Buyers in the form of EXHIBIT "C" hereto (the "ESCROW AGREEMENT"), pending
either: (i) receipt of the Required Lender Consents; or (b) defeasance or
satisfaction of such Mortgages by Buyers in accordance with this Section 7(a).
The terms of defeasance or satisfaction of the Mortgages are summarized on
SCHEDULE "B-2", provided that such exhibit is intended as a summary and estimate
of costs only and the terms of Buyers' obligation to defease or satisfy the
Mortgages shall be in
11
accordance with the applicable Mortgages and/or Loan Documents. Notwithstanding
that Sellers may elect to require that the sale of the Properties as to one or
more Sellers be closed in escrow, the remaining Properties under this Agreement
and the Affiliate Contracts for which the Required Lender Consents have been
received shall be closed in accordance with this Agreement and the Affiliate
Contracts, respectively, on the Closing Date or earlier as may agreed upon by
the Parties.
The foregoing election by Sellers shall be made in Sellers' sole discretion.
(iii) With respect to the Deferred Closings, Buyers shall deposit into
escrow with the closing agent, as part of the Closing of the remaining
Properties under this Agreement and Affiliate Contracts, the full Purchase Price
for the applicable Properties, together with all additional amounts necessary,
in Sellers' reasonable determination, for satisfaction or defeasance of the
Mortgages for which the Required Lender Consents have not been obtained
(including all amounts required for defeasance, yield maintenance, and
prepayment penalties as summarized on SCHEDULE "B-3", as well as additional
costs for payment other than on a regularly scheduled Mortgage payment date, or
otherwise as applicable) (collectively referred to herein as the "DEFEASANCE
DEPOSITS"). Provided that Buyers' have made a full and timely deposit of the
Defeasance Deposits with the closing agent, and provided further that there is a
reasonable likelihood of obtaining the Required Lender Consents within fifteen
(15) days following the Closing Date, as determined by Buyers in their
reasonable discretion, then Buyers shall have the right, upon written notice
delivered to Sellers with the Defeasance Deposits, to have Sellers forebear, for
a period of fifteen (15) days following the Closing Date (except for the Desert
Springs Property, as to which the period shall be thirty (30) days), from
delivering notices to the applicable Lenders of the intent to satisfy or defease
the applicable Mortgages ("BUYERS' EXTENSION"). With the exception of the
"Settlement Statements" (as defined in SCHEDULE "W") and any other documents
that cannot practically be delivered until the actual Closing Date is known, all
other documents and deliverables required under this Agreement shall be
deposited with the closing agent on or before the Closing Date for the
Properties that are not subject to Deferred Closings. If the Required Lender
Consents are not received at the expiration of the Buyers' Extension Period, or
if Buyers do not elect to extend the Closing, then Sellers shall give written
notice to the applicable Lenders, within five (5) days after Closing or five (5)
days after the expiration of Buyers' Extension, as applicable, that such
Mortgages will be satisfied or defeased (as applicable). At the expiration of
each Lender's notice period for satisfaction or defeasance of such Lender's
Mortgage, or earlier if agreed to by the Lender, the closing agent will disburse
to the applicable Lender the amounts necessary to defease or otherwise satisfy
the Mortgage and disburse the balance of the Defeasance Deposits in accordance
with the Escrow Agreement.
(iv) If, with respect to the Deferred Closings, the Buyers are
obligated to make Defeasance Deposits for more than two (2) Mortgages under this
Agreement or the Affiliate Contracts, then Buyers may on or before December 1,
2005 request in writing an extension of up to ten (10) days beyond the Closing
of the remaining Equity Interests for the sole purpose of raising the necessary
funds to make the Defeasance Deposits required under paragraph 7(a)(iii) above.
If Buyers make such request, then Sellers, in their sole discretion to be
exercised (if at all) by written notice given to Buyers not later than December
2, 2005, may elect to either: (1) consent to Buyers' request, or (2) extend the
Closing of the entire transaction contemplated under this Agreement for not
fewer than ten (10) and not more than thirty (30) days (as specified in
12
Sellers' written notice of exercise or thirty (30) days if no period is
specified). If Sellers fail to make an election prior to such deadline, Sellers
shall be deemed to have consented to Buyers' request. If Sellers elect to extend
the Closing, then the date on which the extension period ends shall be the
Closing Date for all purposes of this Agreement. If Sellers elect or are deemed
to have elected to consent to Buyers' request, then: (A) the remaining Equity
Interests under this Agreement and the Affiliate Contracts for which the
Required Lender Consents have been received shall be closed in accordance with
this Agreement and the Affiliate Contracts, respectively, on the Closing Date or
earlier as may be agreed upon by the Parties, (B) on or before December 5, 2005,
Buyers shall be required to make the Defeasance Deposits required under
paragraph 7(a)(iii) above for two (2) of the Mortgages (as designated by
Sellers), and (C) Buyers will make the Defeasance Deposits required under
paragraph 7(a)(iii) above for the remaining Mortgages on or before December 15,
2005. The Deferred Closings will then proceed in accordance with this Agreement.
If Buyers' request an extension under this paragraph 7(a)(iv), Buyers shall be
deemed to have waived their right to exercise Buyers' Extension under paragraph
7(a)(iii) above; provided, however, that if Seller does not exercise its right
to extend under clause (2) above, then Buyers will still have the right to
exercise the Buyers' Extension under paragraph 7(a)(iii) above as to the Desert
Springs Property only. If Buyers fail to perform any of the foregoing
requirements, Buyers will be in default under this Agreement.
(v) Notwithstanding the foregoing provisions of this Section 7, if a
Lender does not provide the Required Lender Consents as to a Mortgage, and if
such Mortgage may not be prepaid or defeased as a result of a lockout period in
such Mortgage (or the associated Loan Documents), and provided that Seller has
not exercised its rights under paragraph 7(a)(i)(1) above as to the Properties
associated with such Mortgage, then, as to such Properties, the actions
otherwise required of Buyer under paragraph 7(a)(iii) above at the Closing Date
for the Properties that are not subject to Deferred Closings shall instead be
deferred until the earlier of the expiration or waiver of the lockout period for
satisfaction or defeasance of such Mortgage. At that time, Buyers shall deposit
the Defeasance Deposits with the closing agent pursuant to an Escrow Agreement,
and the foregoing procedures for notice by Sellers, payment of the defeasance or
satisfaction amount and closing shall be applicable.
(b) At Closing, Sellers and Buyers will deliver (or cause to be delivered)
to each other the documents, and will take the actions, set forth on SCHEDULE
"V".
(c) The Purchase Price for each of the Properties shall be subject to
prorations as set forth in SCHEDULE "W".
(d) Buyers agree to indemnify Sellers with respect to the requests for the
Lenders' approval of this transaction as set forth in SCHEDULE "X".
8. Closing Costs. Buyers shall be responsible for (i) the costs associated with
all inspections performed by Buyers with respect to the Sellers and/or the
Properties, (ii) the costs to obtain title insurance commitments, the premiums
on the owner's coverage on the title insurance policies and any endorsements
issued to Buyers pursuant to the commitments, and the costs of any lenders'
policy or endorsements; (iii) the cost of any surveys of the Properties (if
obtained by Buyers); (iv) the costs of recording any closing documents,
including (without limitation) all documentary stamps, transfer taxes and other
such costs; (v) all loan costs and fees charged by the Lenders with regard to
Lenders' approval of the transfers of the Properties (to the extent that
13
the Lenders impose assumption fees in connection with the transfers of the
Properties, Sellers shall reasonably cooperate with Buyers to attempt to get
such fees reduced or waived; however, Buyers hereby acknowledge and agree that
any such fees shall be the sole responsibility of Buyers); and (vi) the
reimbursement to Sellers of all financing fees and costs shown on SCHEDULE "Y".
Each Party shall be responsible for payment of its own legal fees, except as
otherwise provided herein.
9. Covenants of Sellers.
(a) Sellers will, during the term of this Agreement, operate the Properties
in a manner consistent with prior operations from the Effective Date through the
Closing Date or earlier termination of this Agreement.
(b) At or prior to the Closing, Sellers shall promptly notify Buyers of any
material change in any condition with respect to the Properties or of any event
or circumstance of which Sellers become aware that makes any representation or
warranty of Sellers to Buyers that is required to be true at Closing under this
Agreement materially untrue or materially misleading, or that makes any covenant
of Sellers under this Agreement incapable or less likely of being performed, it
being understood that the obligation to provide notice to Buyers under this
Section shall in no way relieve Sellers of any liability for a breach by Sellers
of any of its representations, warranties or covenants under this Agreement
which breach is directly caused by Sellers.
(c) Prior to the termination of this Agreement by either Sellers or Buyers
in accordance with the terms hereof, no party hereto shall negotiate or enter
into any agreement with respect to the sale of the Properties with any person or
entity other than Buyers, either directly or indirectly through Sellers' agents,
employees, partners or directors.
14
10. Condemnation and Insurance.
(a) If, prior to the Closing Date, any portion of a Property (i) is
destroyed or damaged and the cost to rebuild or repair the Property exceeds Five
Percent (5%) of the Purchase Price allocated to such Property hereunder, as
reasonably estimated by a contractor retained by Buyers and reasonably
acceptable to Sellers, or (ii) becomes the subject of any condemnation or
eminent domain proceedings, which reduces the value of the Property by more than
Five Percent (5%) of the Purchase Price allocated to such Property hereunder, as
reasonably estimated by an appraiser retained by Buyers and reasonably
acceptable to Sellers, then Sellers shall promptly notify Buyers of the same and
Sellers shall elect to: (1) exclude the applicable Properties from this
transaction (and adjust the Purchase Price in accordance with the purchase price
allocations set forth SCHEDULE "A-1"or as otherwise agreed by the Parties) and
the Parties shall thereafter be released from all further obligations under this
Agreement with respect to such excluded Properties, except those obligations
specifically provided herein to survive the termination of this Agreement;
without terminating or otherwise affecting the enforceability of this Agreement
as to any of the other Properties or the enforceability of any Affiliate
Contracts, unless Sellers, in their sole discretion, otherwise elect to
terminate this Agreement as to all of the Properties and terminate the Affiliate
Contracts as a result of termination of this Agreement, or (2) retain the
applicable Properties as part of this transaction and consummate this
transaction with no reduction in the Purchase Price, in which event Sellers will
deliver to Buyers at Closing a duly executed assignment of Sellers' interest in
any award made or to be made in connection with such condemnation or eminent
domain proceedings or a duly executed assignment of Sellers' claim in any
insurance proceeds (including, without limitation, any business income insurance
proceeds for the period following the Closing) made or to be made in connection
with such damage or destruction. Except as set forth above, risk of loss to the
Properties from fire or other casualty or condemnation shall be borne by Sellers
until the Closing.
(b) If, prior to the Closing Date, any portion of a Property is destroyed
or damaged resulting in a total rent abatement or a partial rent abatement
exceeding fifteen percent (15%) of the rentals provided under the Leases for
such Property, Sellers shall have (i) the rights set forth in clauses (1) and
(2) of Section 10(a) above, and (ii) the right, if Sellers elect not to
terminate this Agreement, upon written notice to Buyers to extend the Closing as
to the affected Properties for a period not to exceed sixty (60) days from the
date of such damage or destruction without otherwise affecting the closings of
the other Properties or the Affiliate Contracts unless Sellers, in their sole
discretion, elect to extend the closings of all of the Properties and the
Affiliate Contracts as well.
(c) Sellers will, at all times following the execution and delivery of this
Agreement and until the Closing, maintain in full force, liability and hazard
insurance with respect to the Properties.
11. Default/Guarantor.
(a) If Sellers fail to fulfill any of their respective obligations under
this Agreement, including the obligation to convey the Properties to Buyers in
accordance with this Agreement, then Buyers will have the right to receive
liquidated damages from Sellers, in which event, Sellers shall pay Buyers the
total maximum sum set forth on EXHIBIT "F" ("SELLERS' LIQUIDATED DAMAGES
AMOUNT") for any one or more breaches of this Agreement and/or the Affiliate
15
Contracts (i.e., the total amount for which Sellers and all other sellers under
any Affiliate Contracts may be liable collectively shall be the Sellers'
Liquidated Damages Amount regardless of the number of breaches, the number of
contracts that are breached, or the number of Buyers that are damaged and/or the
amount of their damages), as liquidated damages and not as a penalty, to
compensate Buyers for their damages as a result of Sellers' breaches of this
Agreement and/or the Affiliate Contracts. The Parties acknowledge that Buyers'
actual damages as a result of Sellers' breaches of this Agreement and/or the
Affiliate Contracts would be difficult, if not impossible, to ascertain, and
this amount represents the Parties' agreement as to the liquidated damages due
to Buyers in the aggregate. The right of Buyers to receive liquidated damages as
provided in this Section 11(a) shall terminate in the event that Closing occurs,
and thereafter Buyers' remedies for any of Sellers' breaches of this Agreement
and/or the Affiliate Contracts shall be such remedies as may be available at law
or in equity; provided, however, that regardless of whether any breaches or
defaults by Sellers under this Agreement and/or the Affiliate Contracts occur
pre-Closing or post-Closing, in no event will Sellers be liable for any
consequential, speculative, or punitive damages for any breaches of or defaults
under this Agreement and/or the Affiliate Contracts.
(b) If Buyers fail to fulfill any of their respective obligations under
this Agreement, including (without limitation) the obligation to purchase the
Properties from Sellers in accordance with this Agreement, then Sellers will
have the right (i) to file an action for specific performance of this Agreement
that compels Buyers to consummate the transactions and perform in strict
accordance with the terms and conditions of this Agreement, provided Sellers in
their sole discretion may waive any such terms or conditions; or (ii) Sellers
may elect to receive liquidated damages from Buyers, in which event Buyers shall
pay to Sellers the sum set forth on EXHIBIT "F" ("BUYERS' LIQUIDATED DAMAGES
AMOUNT") for any one or more breaches of this Agreement and/or the Affiliate
Contracts (i.e., the total amount for which Buyers and all other buyers under
any Affiliate Contracts may be liable collectively shall be the Buyers'
Liquidated Damages Amount regardless of the number of breaches, the number of
contracts that are breached, or the number of Sellers that are damaged and/or
the amount of their damages), as liquidated damages and not as a penalty to
compensate Sellers for their damages as a result of Buyers' breach(es) of this
Agreement and/or the Affiliate Contracts. The Parties acknowledge that Sellers'
actual damages as a result of Buyers' breaches of this Agreement and/or the
Affiliate Contracts would be difficult, if not impossible, to ascertain, and
this amount represents the Parties' agreement as to the liquidated damages due
to Sellers in the aggregate. The right of Sellers to receive liquidated damages
as provided in this Section 11(b) shall terminate in the event that Closing
occurs, and thereafter Sellers' remedies for any of Buyers' breaches of this
Agreement and/or the Affiliate Contracts shall be such remedies as may be
available at law or in equity; provided, however, that regardless of whether any
breaches or defaults by Buyers under this Agreement and/or the Affiliate
Contracts occur pre-Closing or post-Closing, in no event will Buyers be liable
for any consequential, speculative, or punitive damages for any breaches of or
defaults under this Agreement and/or the Affiliate Contracts.
(c) Without limiting Section 11(a) above, if (i) the transaction
contemplated by this Agreement fails to close solely due to Sellers willful
refusal to convey the Properties to Buyers after all conditions precedent to
Sellers obligations to close under this Agreement have been fully satisfied or
waived in writing by Sellers, and (ii) Buyers have fulfilled all of their
respective obligations such that Buyers are ready, willing and able to close
under this Agreement, then Sellers will be obligated to pay Buyers a break-up
fee equal to the amount set forth on EXHIBIT
16
"F"(the "BREAK-UP FEE") in addition to the liquidated damages under Section
11(a) above. It is expressly understood and agreed by Buyers that in no event
will the Break-Up Fee be payable by Sellers if the transaction contemplated
under this Agreement fails to close for any reason other than Sellers' willful
refusal to convey the Properties to Buyers after all conditions precedent to
Sellers' obligations to close under this Agreement have been fully satisfied or
waived in writing by Sellers; accordingly, with respect to any other breach or
default by Sellers of any nature, including, without limitation, the failure of
the transaction to close due to a breach of any representations or warranties of
Sellers, Buyers' sole remedy shall be provided in Section 11(a) above and Buyers
shall have no claim to all or any portion of the Break-Up Fee. Further, the
total Break-Up Fee for which Sellers and all other sellers under any Affiliate
Contracts may be liable collectively shall be equal to the amount set forth on
Exhibit "H" regardless of the number of breaches that meet the conditions for
payment of the Break-Up Fee, the number of contracts that are breached, or the
number of Buyers that are damaged and/or the amount of their damages.
(d) Sellers' Guarantor hereby agrees that it shall unconditionally
guarantee Sellers' obligation for the payment of the liquidated damages set
forth in subsection (a) above. Simultaneously with the execution and delivery of
this Agreement by Sellers, Sellers' Guarantor shall execute and deliver to
Buyers a Guaranty in the form attached hereto as EXHIBIT "D". This provision
shall survive the termination of this Agreement.
(e) Buyers' Guarantor hereby agrees that it shall unconditionally guarantee
all obligations of Buyer under this Agreement, including but not limited to, the
payment of the liquidated damages set forth in subsection (b) above.
Simultaneously with the execution and delivery of this Agreement by Buyer,
Buyers' Guarantor shall execute and deliver to Sellers a Guaranty in the form
attached hereto as EXHIBIT "E". This provision shall survive the termination of
this Agreement.
12. Notices. All notices, requests and other communications under this Agreement
must be in writing and sent by U.S. registered or certified mail, postage
prepaid and return receipt requested, overnight courier service, or telecopier,
addressed as follows:
If to Sellers: 0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Telecopier No.: 000-000-0000
With copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Telecopier No.: 000-000-0000
If to Buyers: Windrose Medical Properties, L.P.
Attn: Xxxx Xxxxxx, President
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
17
With copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
All notices will be deemed received three (3) days after mailing; one (1)
day after delivery to an overnight courier service; or the same day if
telecopied, provided that confirmation is received or is evidenced from the
telecopy equipment of the sender.
13. Brokers. Sellers and Buyers represent and warrant to each other that they
have not dealt with any broker, finder or other intermediary in connection with
the transaction contemplated by this Agreement. Each Party will indemnify and
hold harmless the other party from and against any and all losses, damages,
claims, costs and expenses (including attorney's fees and expenses) in any way
resulting from or connected with any claims or suits for any broker's
commission, finder's fee or other like compensation, made or brought by any
other person or entity claiming to have dealt with the such party in breach of
the foregoing representation.
14. Assignment. Buyers shall have the right, upon prior written notice to
Sellers, to assign this Agreement to any entities controlled by, in control of
or under common control with Buyers (each a "PERMITTED ASSIGNEE"), provided that
such assignment shall not relieve Buyers of their obligations hereunder, and
provided further that, at the time of such assignment, Buyers, Buyers' Guarantor
and the Permitted Assignee shall execute and deliver to Sellers a written
agreement pursuant to which Buyers unconditionally assigns its interests in this
Agreement to the Permitted Assignee, the Permitted Assignee unconditionally
assumes and agrees to perform all of the obligations of Buyers pursuant to this
Agreement, and Buyers and Buyers' Guarantor re-affirm their continuing liability
for all obligations of Buyers under this Agreement. Other than the Permitted
Assignee, Buyers shall not assign any or all of their rights and obligations
pursuant to this Agreement (whether by direct or indirect transfer or
assignment) without Sellers' prior written consent, which may be granted or
withheld in Sellers' sole discretion. Notwithstanding anything to the contrary
contained herein, no permitted assignment shall be of any force and effect, if
as a result thereof, any third party approvals or consents required hereunder
are adversely affected. Notwithstanding the foregoing, assignment by Buyers to
any additional entities to be formed for purposes of these transactions by
Windrose Medical Properties, L.P. shall be Permitted Assignees and assignment of
Buyer's rights to such assignees shall not require prior written notice to
Sellers, provided that such Permitted Assignees are owned and controlled by
Windrose Medical Properties, L.P., and such Permitted Assignees join in this
Agreement by written acknowledgment to Sellers as provided above.
15. Miscellaneous.
(a) Invalidity. In the event any term or provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid,
such provision shall be given its nearest legal meaning or be construed as
deleted as such authority determines, and the remainder of this Agreement shall
be construed to be in full force and effect.
18
(b) Entire Understanding; No Oral Modification. This Agreement and the
exhibits hereto contain the entire understanding between the Parties hereto and
may not be changed or terminated orally.
(c) Waiver. Any waiver by any Party of any provision of this Agreement or
breach thereof will not operate or be construed as a waiver of any other
provision or subsequent breach thereof. Any waiver by of a Party must be in
writing to be effective.
(d) Post-Closing Default/Attorney's Fees. In the event that a Party
defaults after the Closing in its obligations under this Agreement that survive
the Closing, then the non-defaulting Party may pursue any right or remedy
available to such non-defaulting Party for the period permitted under this
Agreement; provided however, that a defaulting Party shall not be liable for any
consequential, speculative or punitive damages for any post-Closing breach or
default under this Agreement. In the event of any litigation between the Parties
over the terms of this Agreement, the non-prevailing Party will pay all
reasonable attorney's fees and costs at all levels to the prevailing Party.
Wherever provision is made in this Agreement for "attorneys' fees," such term
shall be deemed to include accountants' and attorneys' fees and court costs,
whether or not litigation is commenced, including those for appellate and
post-judgment proceedings and for paralegals and similar persons.
(e) Florida Law; Binding Effect; Jurisdiction and Venue. The laws of the
State of Florida shall govern the interpretation, enforcements and performance
of this Agreement. Sellers and Buyers agree and consent to the exclusive
jurisdiction of the circuit courts of Palm Beach County, Florida, and/or of the
United States District Court for the Southern District of Florida, whichever may
be appropriate in any and all actions or proceedings arising directly or
indirectly under this Agreement. Furthermore, Sellers and Buyers agree that the
execution and performance of this Agreement constitute sufficient contact with
Florida for the purposes of establishing personal jurisdiction in Florida. By
execution of this Agreement, each of the undersigned hereby waives any and all
defenses it may have to claim a lack of personal jurisdiction by Florida courts.
The Parties also waive all claims to the right of venue in any court outside of
the State of Florida.
(f) Counterparts. This Agreement may be executed in multiple counterparts,
each of which will be deemed to be an original and all of which, together, will
constitute one and the same document. A facsimile signature shall be deemed to
be an original.
(g) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY KNOWINGLY AND
VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY CLAIMS
ARISING OUT OF THIS AGREEMENT.
(h) Preparation of Agreement. Each Party has participated fully in the
negotiation and preparation of this Agreement with full benefit of counsel.
Accordingly, this Agreement shall not be more strictly construed against any
Party.
(i) References and Captions. Whenever used in this Agreement, the singular
shall include the plural, the plural shall include the singular, any gender
shall include every other and all genders, and captions and paragraph headings
shall be disregarded. The captions in this Agreement are for the convenience of
reference only and shall not be deemed to alter any provision of this Agreement.
All references in this Agreement to exhibits, schedules, paragraphs,
19
subparagraphs and sections refer to the respective subdivisions of this
Agreement, unless the reference expressly identifies another document.
Typewritten or handwritten provisions, which are inserted in or attached to this
Agreement as addenda or riders shall control all printed or pretyped provisions
of this Agreement with which they may be in conflict.
(j) Time Periods. Any time period provided for in this Agreement that shall
end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m.
(Indianapolis Time) of the next full business day.
(k) Binding Agreement. All of the terms of this Agreement shall be binding
upon and shall inure to the benefit of the Parties to this Agreement and their
respective successors and assigns.
(l) Announcements. Sellers acknowledge and agree that, upon execution and
delivery of this Agreement by all of the Parties, Buyers shall issue a press
release and shall file with the SEC Form 8-K, and that Buyers shall have the
right thereafter to make such further announcements (including press releases)
and disclosures regarding this Agreement as required by SEC requirements or as
directed by Buyers' securities counsel.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement of
the Effective Date.
[SIGNATURE PAGES OF SELLERS AND BUYERS ATTACHED]
20
JFK - ABERDEEN II
SELLER:
ABERDEEN II HOLDING, LLC,
a Florida limited liability company
By: ABERDEEN II, LLC,
a Delaware limited liability company,
Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE ABERDEEN II PROPERTIES, L.L.C.,
a Delaware limited liability company
BY: Its Managing Member
WMPT ABERDEEN II MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
21
DESERT SPRINGS
SELLER:
DESERT SPRINGS BUILDING INVESTORS LIMITED
PARTNERSHIP, a Florida limited partnership
By: DESERT SPRINGS INVESTORS LIMITED PARTNERSHIP,
a Florida limited partnership, the sole general partner of Desert
Springs Building Investors Limited Partnership
By: DESERT SPRINGS EQUITY CORPORATION, a Florida
corporation, the sole general partner of Desert Springs Investors
Limited Partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE DESERT SPRINGS PROPERTIES, L.P.,
a Delaware limited partnership
BY: Its Managing Member
WMPT DESERT SPRINGS MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
22
EDINBURG
SELLER:
EDINBURG HOLDING, LLC
a Florida limited liability company
By: EDINBURG, LLC, a Delaware
limited liability company, Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE EDINBURG PROPERTIES, L.L.C.,
a Delaware limited liability company
BY: Its Managing Member
WMPT EDINBURG MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
23
SANTA XXXXX
SELLER:
SANTA XXXXX HOLDING, LLC
a Florida limited liability company
By: SANTA XXXXX, LLC,
a Delaware limited liability company,
Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE SANTA XXXXX PROPERTIES, L.L.C.,
a Delaware limited liability company
BY: Its Managing Member
WMPT SANTA XXXXX MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
24
CONGRESS I
SELLER:
FLA-CG I LIMITED PARTNERSHIP,
a Florida limited partnership
By: FLA-CG I, INC., a Florida corporation, its sole
general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE CONGRESS I PROPERTIES, L.P.,
a Delaware limited partnership
BY: Its Managing Member
WMPT CONGRESS I MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
25
CONGRESS II
SELLER:
CONGRESS II INVESTORS, LTD.,
a Florida limited partnership
By: CONGRESS II MEDICAL EQUITY INVESTORS,
LTD., a Florida limited partnership, General Partner of
Congress II Investors, Ltd.
By: CONGRESS II MEDICAL EQUITY CORPORATION,
a Florida corporation, General Partner of Congress II Medical
Equity Investors, Ltd.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE CONGRESS II PROPERTIES, L.P.,
a Delaware limited partnership
BY: Its Managing Member
WMPT CONGRESS II MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
26
OSLER
SELLER:
PALM BAY HOLDING, LLC
a Florida limited liability company
By: PALM BAY, LLC, a Delaware
limited liability company, Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE OSLER PROPERTIES, L.L.C.,
a Delaware limited liability company
BY: Its Managing Member
WMPT OSLER MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
27
APC I
SELLER:
WORKPLACE PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
By: WORKPLACE PROFESSIONAL INVESTORS
LTD., a Florida limited partnership, general
partner of Workplace Professional Center, Ltd.
By: WORKPLACE PROFESSIONAL EQUITY
CORPORATION, a Florida corporation, general
partner of Workplace Professional Investors, Ltd.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE WPC PROPERTIES, L.P.,
a Delaware limited partnership
BY: Its Managing Member
WMPT WPC MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
28
JOINDER OF GUARANTORS
The undersigned, as Buyers' Guarantor and Sellers' Guarantor, hereby join
in this Agreement solely for the purposes specified therein with respect to
Buyers' Guarantor and Sellers' Guarantor, respectively.
WINDROSE MEDICAL PROPERTIES TRUST,
a Maryland REIT
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
MEDICAL OFFICE PORTFOLIO LIMITED
PARTNERSHIP, a Florida limited partnership
By: MEDICAL PORTFOLIO INVESTORS
LIMITED PARTNERSHIP, a Florida limited partnership,
General Partner of Medical Office Portfolio Limited Partnership
By: MEDICAL PORTFOLIO EQUITY CORPORATION,
a Florida corporation, General Partner of Medical Portfolio
Investors Limited Partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
29
LIST OF EXHIBITS
Exhibit "A-1" Sellers
Exhibit "A-2" Buyers
Exhibit "B-1" Fee Owner and Property (Aberdeen II)
Exhibit "B-2" Fee Owner and Property (Desert Springs)
Exhibit "B-3" Fee Owner and Property (Edinburg)
Exhibit "B-4" Fee Owner and Property (Santa Xxxxx)
Exhibit "B-5" Fee Owner and Property (Congress I)
Exhibit "B-6" Fee Owner and Property (Congress II)
Exhibit "B-7" Fee Owner and Property (Osler/Palm Bay)
Exhibit "B-8" Fee Owner and Property (Abacoa Workplace)
Exhibit "B-9" Fee Owner and Property (Atrium)
Exhibit "B-10" Fee Owner and Property (Southpointe)
Exhibit "C" Escrow Agreement
Exhibit "D" Seller's Guaranty
Exhibit "E" Buyer's Guaranty
Exhibit "F" Liquidated Damages and Break-Up Fee
ATRIUM
SELLER:
ATRIUM HOLDING, LLC,
a Florida limited liability company
By: ATRIUM MANAGEMENT, LLC,
a Delaware limited liability company,
Managing Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
BUYER:
WINDROSE ATRIUM PROPERTIES, L.L.C.,
a Delaware limited liability company
BY: Its Managing Member
WMPT ATRIUM MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
SOUTHPOINTE
SELLER:
SOUTHPOINTE HOLDING, LLC,
a Florida limited liability company
By: SOUTHPOINTE, LLC,
a Delaware limited liability company,
Managing Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
BUYER:
WINDROSE SOUTHPOINTE PROPERTIES, L.L.C.,
a Delaware limited liability company
BY: Its Managing Member
WMPT SOUTHPOINTE MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
EXHIBIT "A-1"
SELLERS
Aberdeen II Holding, LLC, a Florida limited liability company (Aberdeen II)
Desert Springs Building Investors Limited Partnership, a Florida limited
partnership (Desert Springs)
Edinburg Holding, LLC, a Florida limited liability company (Edinburg)
Santa Xxxxx Holding, LLC, a Florida limited liability company (Santa Xxxxx)
FLA-CG I Limited Partnership, a Florida limited partnership (Congress I)
Congress II Investors, Ltd., a Florida limited partnership (Congress II)
Palm Bay Holding, LLC, a Florida limited liability company (Osler)
Workplace Professional Center, Ltd., a Florida limited partnership (Abacoa
Workplace)
Atrium Holding, LLC, a Florida limited liability company (Atrium)
Southpointe Holding, LLC, a Florida limited liability company (Southpointe)
EXHIBIT "A-2"
BUYERS
WINDROSE ABERDEEN II PROPERTIES, L.L.C.,a Delaware limited liability company
(Aberdeen II)
WINDROSE DESERT SPRINGS PROPERTIES, L.P., a Delaware limited partnership
(Desert Springs)
WINDROSE EDINBURG PROPERTIES, L.L.C., a Delaware limited liability company
(Edinburg)
WINDROSE SANTA XXXXX PROPERTIES, L.L.C., a Delaware limited liability company
(Santa Xxxxx)
WINDROSE CONGRESS II PROPERTIES, L.P., a Delaware limited partnership
(Congress I)
WINDROSE CONGRESS II PROPERTIES, L.P., a Delaware limited partnership
(Congress II)
WINDROSE OSLER PROPERTIES, L.L.C., a Delaware limited liability company
(Osler)
WINDROSE WPC PROPERTIES, L.P., a Delaware limited partnership
(Abacoa Workplace)
WINDROSE ATRIUM PROPERTIES, L.L.C., a Delaware limited liability company
(Atrium)
WINDROSE SOUTHPOINTE PROPERTIES, L.L.C., a Delaware limited liability company
(Southpointe)
EXHIBIT "B-1"
FEE OWNER AND PROPERTY DESCRIPTION
Aberdeen II Holding, LLC, a Florida limited liability company (Aberdeen II)
Aberdeen II
0000 Xxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-2"
FEE OWNER AND PROPERTY DESCRIPTION
Desert Springs Building Investors Limited Partnership, a
Florida limited liability company
Desert Professional Plaza
0000 Xxxxx Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-3"
FEE OWNER AND PROPERTY DESCRIPTION
Edinburg Holding, LLC, a Florida limited liability company
Edinburg Regional Medical Plaza I
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxx 00000
See Property Description attached hereto
EXHIBIT "B-4"
FEE OWNER AND PROPERTY DESCRIPTION
Santa Xxxxx Holding, LLC, a Florida limited liability company
Santa Xxxxx Medical Plaza
000 X. Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-5"
FEE OWNER AND PROPERTY DESCRIPTION
FLA-CGI Limited Partnership, a Florida limited partnership (Congress I)
Congress Professional Center I
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-6"
FEE OWNER AND PROPERTY DESCRIPTION
Congress II Investors, Ltd., a Florida limited partnreship (Congress II)
Congress Professional Center II
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-7"
FEE OWNER AND PROPERTY DESCRIPTION
Palm Bay Holding, LLC, a Florida limited liability company (Osler)
Osler Medical Arts Pavillion
000 Xxxxxx Xxxx Xxxxx, X.X.
Xxxx Xxx, Xxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-8"
FEE OWNER AND PROPERTY DESCRIPTION
Workplace Professional Center, Ltd., a Florida partnership (Abacoa Workplace)
Abacoa Workplace Professional Center
000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-9"
FEE OWNER AND PROPERTY DESCRIPTION
Atrium Holding, LLC, a Florida limited liability company
Atrium Office Park
000-000 XX 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
See Property Description attached hereto
EXHIBIT "B-10"
FEE OWNER AND PROPERTY DESCRIPTION
Southpointe Holding, LLC, a Florida limited liability company
Southpointe Medical Center
000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
See Property Description attached hereto
EXHIBIT "C"
ESCROW AGREEMENT
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("AGREEMENT") is entered into this ____ day of
__________, 2005, by and among ____________________, a ________________
("MANAGING SELLER") and ____________________, a ________________ ("NON-MANAGING
SELLER" and, collectively with Managing Seller, "SELLERS"), and
____________________, a ________________ ("BUYER G.P.") and Windrose Medical
Properties, L.P., a Virginia Limited Partnership ("BUYER L.P." and, collectively
with Buyer G.P., "BUYERS"), and _________________________ (the "Escrow Agent").
WHEREAS, Sellers and Buyers are parties to that those certain
Contracts all dated as of October 24, 2005 (the "CONTRACTS") in the forms
attached hereto as collective Exhibit A; and
WHEREAS, as of the closing of the transactions contemplated under
the Contacts with respect to the Properties set forth on Exhibit B (the
"Properties"), the Required Lender Consents have not been obtained; and
WHEREAS, Buyers and Sellers desire to enter into this Agreement
pursuant to Section 7(a) of each of the Contracts as more particularly described
herein; and
WHEREAS, the parties wish to engage Escrow Agent for the purposes
described in this Agreement, and Escrow Agent is agreeable thereto.
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
SECTION 1 RECITALS. The foregoing recitals are true and correct and are
incorporated herein by reference. All capitalized terms used herein and not
otherwise defined shall have the same meaning as defined in the Contract.
SECTION 2 CERTAIN DEFINITIONS. Capitalized terms used, but not otherwise defined
in this Escrow Agreement shall have the meanings ascribed to those terms in the
Contract.
SECTION 3 GENERAL TERMS OF ESCROW. Except as specifically modified by written
instruction executed by all parties and accepted by Escrow Agent, the provisions
of this Agreement shall apply to the property or funds received hereunder.
SECTION 4 APPOINTMENT OF ESCROW AGENT. Buyers and Sellers hereby appoint and
designate the Escrow Agent to act as escrow agent under this Agreement. The
Escrow Agent hereby agrees to act as escrow agent hereunder and to comply with
all the provisions of this Agreement.
SECTION 5 CREATION OF DEFEASANCE DEPOSIT. Escrow Agent hereby acknowledges
receipt of the sum of _______________________ Dollars ($________________)
(hereinafter described as the "DEFEASANCE DEPOSIT") paid by wire transfer to
Escrow Agent by Buyers, and as Escrow Agent shall deposit the Defeasance Deposit
in an interest bearing account maintained at ___________ Bank with offices
____________, ___________________ (address) Account No.___________________. The
Defeasance Deposit shall be held by the Escrow Agent on the terms and subject to
the conditions set forth herein and in the Contract, but the Escrow Agent shall
have no responsibility with respect to the Contract other than to perform its
obligations as such are provided in this Escrow Agreement. The Defeasance
Deposit and all interest accrued thereon, as well as any other property or funds
received by Escrow Agent, shall be paid/disbursed in accordance with the terms
hereof, and the terms of the Contract which are incorporated herein by
reference. Nothing in this Agreement shall be deemed to waive or limit any of
Buyers' or Sellers' rights or remedies under the Contract, and Escrow Agent
shall not be deemed to have waived any right or remedy it may have unless said
waiver is in writing signed by Escrow Agent and only to the extent set forth in
such waiver. The Defeasance Deposit shall be allocated among the Properties
listed on EXHIBIT A and in the amounts set forth on EXHIBIT A for distribution
and settlement in accordance with the provisions hereof.
1
SECTION 6 DEPOSIT OF CLOSING DOCUMENTS. Sellers and Buyers have deposited with
Escrow Agent the closing documents and deliverables required under the Contract
as listed on EXHIBIT B with respect to the Properties.
SECTION 7 INVESTMENT OF ESCROWED CASH. The Escrow Agent shall invest and
reinvest all cash held in the Defeasance Deposit as directed by Buyers in: (i)
direct obligations of or obligations fully guaranteed by the United States of
America or any agency or instrumentality thereof which have a maturity date of
30 days or less; and (ii) money market funds investing primarily in the
obligations described in item (i). Temporarily uninvested funds held hereunder
shall not earn or accrue interest. Interest accrued on the Defeasance Deposit
shall be credited to the accounts in which the Defeasance Deposit is deposited,
as and when received by the Escrow Agent, and shall become a part of the
Defeasance Deposit, to be distributed in accordance with SECTION 9 hereof.
SECTION 8 LIMITATIONS OF LIABILITY: Without limitation, Escrow Agent shall not
be liable for any loss or damage resulting from the following: (a) the financial
status or insolvency of any other party, or any misrepresentation made by any
other party; (b) any legal effect, insufficiency, or undesirability of any
instrument deposited with or delivered by or to Escrow Agent or exchanged by the
parties hereunder, whether or not Escrow Agent prepared such instrument; (c) the
default, error, action or omission of any other party to the Agreement; or (d)
any loss, diminution in value or failure to achieve a greater profit as a result
of such Deposit, any loss occurring which arises from the fact that the amount
of deposit may cause the aggregate amount of the depositor's accounts to exceed
$100,000 and that the excess amount is not insured by the Federal Deposit
Insurance Corporation (FDIC); any loss or impairment of funds that have been
deposited in escrow while those funds are in the course of collection or while
those funds are on deposit in a financial institution if such loss or impairment
results from the failure, insolvency or suspension of a financial institution,
or any loss or impairment of funds due to the invalidity of any draft, check,
document or other negotiable instrument delivered to the Escrow Agent.
SECTION 9 PAYMENTS FROM DEFEASANCE DEPOSIT.
9.1 PURPOSE OF ESCROW. The purpose of this Agreement is to: (a) to
provide the required funds for Seller to defease or satisfy the Mortgages and in
the amounts listed on EXHIBIT C; (b) upon such defeasance or satisfaction,
provide the payment of the full Purchase Price to Sellers for the Properties in
the amounts set forth on EXHIBIT C subject to adjustments and credits provided
for in the Contract; and (c) upon such defeasance or satisfaction, close the
purchase and sale of the applicable Property in accordance with SECTION 9.
9.2 APPLICATION OF DEFEASANCE DEPOSIT. Sellers shall give written
notice to the applicable Lenders with a copy to Buyers and Escrow Agent, within
five (5) days after the date of this Agreement or five (5) days after the
expiration of Buyers' Extension, if applicable, that the Mortgages encumbering
the Properties will be satisfied or defeased (as applicable). At the expiration
of the Lender's notice period for satisfaction or defeasance of the Mortgage, or
earlier if agreed to by the Lender, the Escrow Agent will disburse to the
Lender, from the Defeasance Deposit, the amounts necessary to defease or
otherwise satisfy the Mortgage; it being understood that a portion of the
Defeasance Deposit will be disbursed by Escrow Agent prior to the Closing to
purchase securities required for the defeasance and Escrow Agent will take all
actions reasonably required in connection therewith. Notwithstanding anything to
the contrary contained herein or in the Contracts, if the amount required by a
Lender, in accordance with the loan documents applicable to such Mortgage, to
defease or satisfy a Mortgage is greater than the amount set forth on EXHIBIT B
for such Mortgage, Escrow Agent shall provide written notice to Buyers and
Sellers and Buyers shall within five (5) business days of such notice deposit
such additional funds with Escrow Agent.
9.3 OPERATION OF PROPERTY DURING DEFEASANCE PERIOD. During the
Defesance Period and prior to Closing, the Properties shall be operated by the
Sellers in accordance with the terms of the Contracts and Sellers shall be
entitled to all income and responsible for all expenses attributable to
2
the Properties until the Closing as described herein. During the Defeasance
Period, all other provisions of the Contracts shall apply.
9.4 CLOSING. At such time as the Escrow Agent determines that the
Mortgage has been defeased or satisfied so as to satisfy the applicable
requirement in the title insurance commitment to delete applicable Mortgage from
the Title Commitment (the "TRIGGER DATE"), the Escrow Agent shall immediately
give written notice thereof to Buyers and Sellers and the Closing shall be
scheduled by the Escrow Agent for a date not later than ten (10) days following
the Trigger Date. Buyers and Sellers shall thereupon cooperate to complete all
remaining Closing deliveries under the Contract so as to permit the Closing to
occur on or before the Closing Date scheduled by the Escrow Agent in accordance
with the terms of the Agreement. The balance of the Defeasance Deposit for a
Property shall be disbursed by Escrow Agent at Closing in accordance with the
Settlement Statement applicable to such Property, provided, however that all
interest earned on the Defeasance Deposit shall be paid to Buyers or as directed
by Buyers. Nothing in this Agreement, including the delivery to the Escrow Agent
of any documents listed on Schedule "V" of the Contract, shall be deemed to be a
sale, transfer or conveyance of the Property (within the meaning of any
so-called due-on-sale clause in any of the Loan Documents or otherwise) unless
and until the Closing actually occurs and breaks escrow and the Mortgage is
satisfied or defeased, as applicable.
SECTION 10 ESCROW AGENT'S DUTIES AND RESIGNATION.
10.1 RESIGNATION. The Escrow Agent may resign and be discharged from
its duties hereunder at any time by giving notice of such resignation to Buyers
and Sellers specifying a date not less than thirty (30) days following the date
of such notice when such resignation shall take effect. Upon such notice, a
successor escrow agent shall be selected by Buyers and Sellers, such successor
escrow agent to become the Escrow Agent hereunder upon the resignation date
specified in such notice. If Buyers and Sellers are unable to agree upon a
successor escrow agent within ten (10) days after the date of such notice, the
Escrow Agent shall be entitled to appoint its successor. The Escrow Agent shall
continue to serve until its successor accepts appointment as escrow agent and
receives the amounts held in escrow hereunder.
10.2 DUTIES. The Escrow Agent undertakes to perform only such duties as
are specifically set forth herein and may conclusively rely and shall be
protected in acting or refraining from acting on any written notice, instrument
or signature believed by it to be genuine and to have been signed or presented
by the proper party or parties duly authorized to do so. The Escrow Agent shall
have no responsibility for the contents of any writing contemplated hereby and
may reasonably rely without any liability upon the contents thereof.
Notwithstanding anything to the contrary contained in this Escrow Agreement,
where any action is specified to be taken by the Escrow Agent upon delivery by
either Buyers and Sellers (or both Buyers and Sellers) of a notice, certificate
or instructions to the Escrow Agent, the Escrow Agent shall not be obligated to
take any action until the appropriate party (or parties) has (or have) acted by
delivering the certificate, notice or instructions to the Escrow Agent (none of
which shall be binding upon the Escrow Agent unless in writing) as to the action
to be taken hereunder indicating in writing that a copy of such certificate,
notice or instructions has been delivered to the other party.
10.3 WRITTEN DIRECTIONS TO ESCROW AGENT. Escrow Agent may act in
reliance upon any writing or instrument or signature which it, in good faith,
believes to be genuine; may assume the validity and accuracy of any statements
or assertions contained in such writing or instrument; and may assume that any
person purporting to give any writing, notice, advice or instruction in
connection with the provisions hereof has been duly authorized to do so. Escrow
Agent shall not be liable in any manner for the sufficiency or correctness as to
form, manner of execution, or validity of any written instructions delivered to
it, nor as to the identity, authority or rights of any person executing such
instructions. The duties of Escrow Agent shall be limited to the safekeeping of
the Defeasance Deposit and to disbursements of the Defeasance Deposit in
accordance with the written instructions described above. Escrow Agent
undertakes to perform only such duties as are expressly
3
set forth herein, and no implied duties or obligations shall be read into this
Agreement as against Escrow Agent.
10.4 DISPUTES: INTERPLEADER ACTION. In the event of a dispute between
Buyers and Sellers over the release of the Defeasance Deposit, the Escrow Agent,
in its sole discretion, may (i) deposit the Defeasance Deposit with the registry
of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach
County, Florida, and commence an interpleader action to determine the rights to
the Defeasance Deposit, with the non-prevailing party (as between Buyers and
Sellers) responsible for the costs of the interpleader action and all related
proceedings, including Escrow Agent's legal fees and costs associated therewith,
or (ii) retain the Defeasance Deposit until such time as direction is provided
in writing and signed by both parties or by a court of competent jurisdiction.
10.5 HOLD HARMLESS OF ESCROW AGENT. The parties expressly understand
and agree that Escrow Agent shall not be liable for any error in judgment or any
act done or omitted by it in good faith or pursuant to court order, or for any
mistake of fact or law. Escrow Agent shall not incur any liability in acting
upon any document or instrument believed thereby to be genuine. Escrow Agent is
hereby released and exculpated from all liability hereunder, except only for
willful misconduct or gross negligence.
SECTION 11 DISCHARGE OF ESCROW AGENT: Upon completion of the disbursement of the
Defeasance Deposit and delivery of instruments, if any, in accordance with this
Agreement, Escrow Agent shall be automatically released and discharged of its
escrow obligations hereunder.
SECTION 12 AGENTS OF ESCROW AGENT: The provisions of this Agreement shall apply
to and be for the benefit of agents of the Escrow Agent employed by it for
services in connection with this Agreement, as well as for the benefit of Escrow
Agent.
SECTION 13 MISCELLANEOUS.
13.1.1 GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida. Venue for any
dispute or litigation arising from this Agreement shall occur in state court in
and for Palm Beach County, Florida.
13.1.2 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.
13.1.3 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
13.1.4 HEADINGS. Section headings contained in this Agreement are
for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
13.1.5 NOTICES. Any notice, request, instruction or other
document deemed by any of the parties hereto to be necessary or desirable to be
given to any other party hereto shall be in writing (including telex and
telegraphic communications) hand delivered by messenger courier service,
telecommunicated, or mailed by overnight courier (airmail, if intended recipient
is outside the continental United States), by registered or certified mail
(postage pre-paid), return receipt requested, to the following address:
If to Sellers: c/o Medical Office Portfolio Limited Partnership
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Telecopier No.: 000-000-0000
4
With a copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No. 561/630-9660
If to Buyer: c/o Windrose Medical Properties, L.P.
Attn: Xxxx Xxxxxx, President
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
If to Escrow Agent:
------------------------------
------------------------------
------------------------------
Attention:
-------------------
Telecopier No.:
--------------
or to such other address as any party may designate by notice complying
with tie terms of this paragraph. Each such notice shall be deemed delivered or,
in the event of receipted mail, on the date refused.
13.2 AMENDMENT. This Escrow Agreement maybe modified only by a written
amendment signed by Sellers, Buyers and Escrow Agent, and no waiver of any
provision hereof shall be effective unless expressed in writing and signed by
the party to be charged.
13.3 REPRESENTATION. Each Party hereby represents and warrants that
this Agreement has been duly authorized, executed and delivered on its behalf
and constitutes the legal, valid and binding obligation of such Party. The
execution, delivery and performance of this Agreement by such Party does not
violate any applicable law or regulation to which such Party is subject and does
not require the consent of any governmental or other regulatory body to which
such Party is subject, except for such consents and approvals as have been
obtained and are in full force and effect.
13.4 ENTIRE AGREEMENT. This Agreement, together the applicable terms of
the Contract, represents the entire agreement between the parties hereto with
respect to the subject matter hereof and may not be modified, terminated or
amended except by an instrument in writing signed by all of the parties hereto.
To the extent the terms of this Agreement conflict with the terms of the
Contract, this Agreement shall take priority.
SIGNATURES CONTAINED ON THE FOLLOWING PAGE
5
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
of the date first hereinabove written.
SELLERS:
---------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
---------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BUYERS:
---------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
---------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
6
ESCROW AGENT:
---------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
7
EXHIBIT "D"
SELLER'S GUARANTY
GUARANTY
In consideration for, as a condition of, and as an inducement to
certain entities (collectively, "BUYERS") that are affiliates of Windrose
Medical Properties Trust, a Maryland REIT, entering into that certain Interest
Purchase and Sale Agreement dated October 24, 2005 (the "AGREEMENT"), with
certain entities (collectively, "SELLERS") that are affiliates of Medical Office
Portfolio Limited Partnership, a Florida limited partnership ("GUARANTOR"), and
for other good and valuable consideration, Guarantor hereby covenants and agrees
to and with Buyers that if (a) default shall at any time be made by one or more
Sellers under the Agreement, (b) one or more Sellers is liable to one or more
Buyers for liquidated damages as provided in Section 11(a) of the Agreement, the
"Break-up Fee" under Section 11(c) of the Agreement, or both, and (c) such
payment shall not be made as and when due, then Guarantor will forthwith pay the
liquidated damages and Break-up Fee due and payable to said Buyer(s); provided,
however, that (i) in no event shall the liability of Guarantor for any and all
such liquidated damages under the Agreement and under any "Affiliate Contracts"
(as defined in the Agreement) exceed the maximum aggregate amount of One Million
Dollars ($1,000,000.00), and (ii) in no event shall the liability of Guarantor
for the Break-up Fee under the Agreement and under Affiliate Contracts exceed
the maximum aggregate amount of Two Million Dollars ($2,000,000.00), which is in
addition to the liquidated damages.
This Guaranty is a guaranty of payment (and not of collection) and is a
surety agreement. Guarantor's liability hereunder is primary and direct and may
be enforced without Buyers being required to resort to any other right, remedy
or security, and this Guaranty shall be enforceable against Guarantor, without
the necessity for any suit or proceedings on Buyers' part of any kind or nature
whatsoever against Sellers, and without the necessity of any notice of
non-payment, non-performance or non-observance or the continuance of any such
default or of any notice of acceptance, protest, dishonor or presentment of this
Guaranty or of Buyers' intention to act in reliance hereon or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives.
This Guaranty shall be a continuing Guaranty, and (whether or not
Guarantor shall have notice or knowledge of any of the following) the liability
and obligation of Guarantor hereunder shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way impaired
by (a) any amendment or modification of, or supplement to, or extension or
renewal of, the Agreement; (b) any exercise or non-exercise of any right, power,
remedy or privilege under or in respect of the Agreement or this Guaranty or any
waiver, consent or approval by Buyers with respect to any of the covenants,
terms, conditions or agreements contained in the Agreement; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding relating to Sellers, or their properties (including
without limitation any rejection or disaffirmance of the Agreement in any such
proceedings); (d) any limitation on the liability or obligation of Sellers under
the Agreement or its estate in bankruptcy or of any remedy for the enforcement
thereof, resulting from the operation of any present or future provision of the
federal bankruptcy law or any other statute or from the decision of any court;
or (e) any transfer by Sellers or any assignment, mortgage or pledge of their
interest under the Agreement.
All of Buyers' rights and remedies under the Agreement and under this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others.
Guarantor further agrees that, to the extent that Sellers or Guarantor
makes a payment or payments to Buyers, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to Sellers or Guarantor or their
respective estate, trustee, receiver or any other party under any bankruptcy
law, state or federal law, common law or equitable cause, then to the extent of
such payment or repayment, this Guaranty and the damages or part
Page 1
thereof which have been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred.
This Guaranty shall be legally binding upon Guarantor and its
successors and assigns and shall inure to the benefit of Buyers and their
successors and assigns. Reference herein to Sellers shall be deemed to include
Sellers and their successors and assigns.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF LAW.
If any legal action, arbitration, or other proceeding is brought for
the enforcement of this Guaranty, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this Guaranty,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorney's fees, costs and all expenses even if not taxable as costs
(including, without limitation, all such fees, costs and expenses incident to
appeals), incurred in that action or proceeding, in addition to any other relief
to which such party or parties may be entitled.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered; mailed, first
class postage prepaid; or sent by independent overnight courier to the parties
at the following addresses:
If to Buyers: Windrose Medical Properties, L.P.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, President
Telecopier No.: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
If to Guarantor: Medical Office Portfolio Limited Partnership
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Facsimile No. 561/622-4420
With a copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No. 561/630-9660
or to any such other address as any party hereto shall designate to the other
parties in writing.
This Guaranty and the Agreement constitutes the entire agreement, and
supersedes all prior agreements, conduct and understandings, both written and
oral, between Guarantor and Buyers with respect to the subject matter hereof. If
any clause, provision or section of this Guaranty be held illegal or invalid by
Page 2
any court, the in validity of such clause, provision or section shall not affect
any of the remaining clauses, provisions or sections hereof, and this Guaranty
shall be construed and enforced as if such illegal or invalid clause, provision
or section had not been contained herein. In case any agreement or obligation
contained in this Guaranty be held to be in violation of law, then such
agreement or obligation shall be deemed to be the agreement or obligation of
Guarantor, as the case may be, to the full extent permitted by law.
The provisions of this Guaranty may be waived or amended, as to any
particular transaction or otherwise, only by an instrument in writing executed
by or on behalf of all parties to this Guaranty. No subsequent oral agreements
or understandings, or conduct of any nature, shall be effective to modify any
provision of, or limit the rights or remedies of any party under, this Guaranty,
and no party may rely on any such oral agreements or understandings, or conduct
of any nature.
THE PARTIES HERETO HEREBY MUTUALLY WAIVE ANY RIGHT TO A TRIAL BY JURY
ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION ARISING
OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, ANY DEALINGS OF
THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR IN CONNECTION WITH ANY OF
THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY, OR THE EXERCISE OF ANY
PARTY'S RIGHTS OR REMEDIES HEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. A COPY OF THIS PARAGRAPH MAY BE FILED WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY
WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. NONE OF THE PARTIES HERETO HAVE
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE EVENT OF SUCH
DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISIONS OF THIS PARAGRAPH.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby,
has caused this Guaranty to be executed by its duly authorized officer as of the
date set forth in the first paragraph hereof.
MEDICAL OFFICE PORTFOLIO LIMITED
PARTNERSHIP, a Florida limited partnership
By: MEDICAL PORTFOLIO INVESTORS
LIMITED PARTNERSHIP, a Florida limited
partnership, General Partner of Medical
Office Portfolio Limited Partnership
By: MEDICAL PORTFOLIO EQUITY CORPORATION,
a Florida corporation, General Partner of
Medical Portfolio Investors Limited
Partnership
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Page 3
EXHIBIT "E"
BUYER'S GUARANTY
GUARANTY
In consideration for, as a condition of, and as an inducement to
certain entities (collectively, "SELLERS") that are affiliates of Medical Office
Portfolio Limited Partnership, a Florida limited partnership, entering into that
certain Purchase and Sale Agreement dated October 24, 2005 (the "AGREEMENT"),
with certain entities (collectively, "BUYERS") that are affiliates of Windrose
Medical Properties Trust, a Maryland REIT ("GUARANTOR"), and for other good and
valuable consideration, Guarantor hereby covenants and agrees to and with
Sellers that if (a) default shall at any time be made by one or more Buyers
under the Agreement, (b) one or more Buyers is liable to one or more Sellers for
liquidated damages or otherwise as provided in the Agreement, and (c) such
payment shall not be made as and when due, then Guarantor will forthwith pay
said liquidated damages to said Seller(s); provided, however, that in no event
shall the liability of Guarantor for any and all such liquidated damages under
the Agreement and under any "Affiliate Contracts" (as defined in the Agreement)
exceed the maximum aggregate amount of Five Million Dollars ($5,000,000.00).
This Guaranty is a guaranty of payment (and not of collection) and is a
surety agreement. Guarantor's liability hereunder is primary and direct and may
be enforced without Sellers being required to resort to any other right, remedy
or security, and this Guaranty shall be enforceable against Guarantor, without
the necessity for any suit or proceedings on Sellers' part of any kind or nature
whatsoever against Buyer, and without the necessity of any notice of
non-payment, non-performance or non-observance or the continuance of any such
default or of any notice of acceptance, protest, dishonor or presentment of this
Guaranty or of Sellers' intention to act in reliance hereon or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives.
This Guaranty shall be a continuing Guaranty, and (whether or not
Guarantor shall have notice or knowledge of any of the following) the liability
and obligation of Guarantor hereunder shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way impaired
by (a) any amendment or modification of, or supplement to, or extension or
renewal of, the Agreement; (b) any exercise or non-exercise of any right, power,
remedy or privilege under or in respect of the Agreement or this Guaranty or any
waiver, consent or approval by Sellers with respect to any of the covenants,
terms, conditions or agreements contained in the Agreement; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding relating to Buyers, or their properties (including without
limitation any rejection or disaffirmance of the Agreement in any such
proceedings); (d) any limitation on the liability or obligation of Buyers under
the Agreement or its estate in bankruptcy or of any remedy for the enforcement
thereof, resulting from the operation of any present or future provision of the
federal bankruptcy law or any other statute or from the decision of any court;
or (e) any permitted transfer by Buyers or any permitted assignment, mortgage or
pledge of their interest under the Agreement.
All of Sellers' rights and remedies under the Agreement and under this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others.
Guarantor further agrees that, to the extent that Buyers or Guarantor
makes a payment or payments to Sellers, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to Buyers or Guarantor or their
respective estate, trustee, receiver or any other party under any bankruptcy
law, state or federal law, common law or equitable cause, then to the extent of
such payment or repayment, this Guaranty and the damages or part thereof which
have been paid, reduced or satisfied by such amount shall be reinstated and
continued in full force and effect as of the date such initial payment,
reduction or satisfaction occurred.
Page 1
This Guaranty shall be legally binding upon Guarantor and its
successors and assigns and shall inure to the benefit of Sellers and their
successors and assigns. Reference herein to Buyers shall be deemed to include
Buyers and their successors and assigns.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF LAW.
If any legal action, arbitration, or other proceeding is brought for
the enforcement of this Guaranty, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this Guaranty,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorney's fees, costs and all expenses even if not taxable as costs
(including, without limitation, all such fees, costs and expenses incident to
appeals), incurred in that action or proceeding, in addition to any other relief
to which such party or parties may be entitled.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered; mailed, first
class postage prepaid; or sent by independent overnight courier to the parties
at the following addresses:
If to Guarantor: Windrose Medical Properties, L.P.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX
Attn: Xxxx Xxxxxx, President
Telecopier No.: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX
Telecopier No.: 000-000-0000
If to Sellers: c/o Medical Office Portfolio Limited Partnership
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Facsimile No. 561/622-4420
With a copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No. 561/630-9660
or to any such other address as any party hereto shall designate to the other
parties in writing.
This Guaranty and the Agreement constitutes the entire agreement, and
supersedes all prior agreements, conduct and understandings, both written and
oral, between Guarantor and Sellers with respect to the subject matter hereof.
If any clause, provision or section of this Guaranty be held illegal or invalid
by any court, the in validity of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof, and this
Guaranty shall be construed and enforced as if such illegal or invalid clause,
provision or section had not been contained herein. In case any agreement or
obligation contained in
Page 2
this Guaranty be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of Guarantor, as
the case may be, to the full extent permitted by law.
The provisions of this Guaranty may be waived or amended, as to any
particular transaction or otherwise, only by an instrument in writing executed
by or on behalf of all parties to this Guaranty. No subsequent oral agreements
or understandings, or conduct of any nature, shall be effective to modify any
provision of, or limit the rights or remedies of any party under, this Guaranty,
and no party may rely on any such oral agreements or understandings, or conduct
of any nature.
THE PARTIES HERETO HEREBY MUTUALLY WAIVE ANY RIGHT TO A TRIAL BY JURY
ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION ARISING
OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, ANY DEALINGS OF
THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR IN CONNECTION WITH ANY OF
THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY, OR THE EXERCISE OF ANY
PARTY'S RIGHTS OR REMEDIES HEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. A COPY OF THIS PARAGRAPH MAY BE FILED WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY
WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. NONE OF THE PARTIES HERETO HAVE
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE EVENT OF SUCH
DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISIONS OF THIS PARAGRAPH.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby,
has caused this Guaranty to be executed by its duly authorized officer as of the
date set forth in the first paragraph hereof.
WINDROSE MEDICAL PROPERTIES TRUST, A
MARYLAND REIT
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Page 3
EXHIBIT "F"
LIQUIDATED DAMAGES AND BREAK-UP FEE
Amount
------
Sellers' Liquidated Damages Amount $1,000,000,00
Buyers' Liquidated Damages Amount $5,000,000.00
Break-Up Fee $2,000,000.00
