EXHIBIT 10.7.1
PURCHASE AND SALE AGREEMENT
(0000-0000 X. XXXXXXXXXX XXXX., 0000 X. XXXXXXX XXX., AND 000 X. XXXXXX XXXXX,
XXX XXXXX, XXXXXX)
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is entered
into as of May 10, 2002 (the "EFFECTIVE DATE"), by and among Windrose Medical
Properties Trust, a Maryland REIT ("BUYER") and CPSIEM, LLC, a Delaware limited
liability company ("CPSIEM") and CPSIEE, LLC, a Delaware limited liability
company ("CPSIEE"). CPSIEM and CPSIEE are referred to herein individually as a
"SELLER" and collectively, as the "SELLERS".
1. DEFINITIONS.
As used herein, the following terms shall have the meanings given:
"Business Day" means a calendar day on which banks in Las Vegas, Nevada
shall be open to transact business.
"Buyer's Conditions Precedent" shall have the meaning given in Section
8(a).
"Buyer's Election Notice" shall have the meaning given in Section 4.
"Cash Purchase Price" shall have the meaning given in Section 3.1.
"CB" shall mean CB Xxxxxxx Xxxxx, Inc.
"Closing" shall have the meaning given in Section 13.
"Closing Date" shall have the meaning given in Section 13.
"Commencement of Due Diligence" shall mean May 2, 2002.
"Deed" shall have the meaning given in Section 10.
"Due Diligence Period" shall have the meaning given in Section 5.
"Effective Date" shall have the meaning set forth in the opening
sentence hereof.
"Equipment" shall mean all machinery and equipment owned by Seller and
located on, attached, affixed or incorporated into the Land and Improvements,
including, without limitation, all floor coverings, lighting, appliances,
telephone wiring and jacks, and other miscellaneous fixtures and equipment
located on the Land, owned by Seller and used in the operation of the
Improvements.
"Environmental Laws" shall mean any federal, state and local laws,
ordinances and regulations applicable to a Property with respect to hazardous or
toxic substances or industrial hygiene.
"Escrow" means the escrow opened with Escrow Company for the
consummation of the transaction described in this Agreement.
"Escrow Company" means LandAmerica Title Company, Los Angeles,
California.
"FIRPTA Certificate" shall have the meaning set forth in Section 10.
"Guarantor" means Sierra Health Services, Inc., a Nevada corporation.
"Improvements" shall mean the buildings (including all plumbing,
electrical, ventilating, heating, cooling, lighting and utility systems,
equipment, ducts and pipes owned by Seller and attached to or comprising a part
thereof, Equipment, paving and landscaping presently situated on the Land.
"Intangibles" shall mean Sellers' interest (if any) in and to any
certificates of occupancy, permits, books, records, studies, appraisals, plans
and specifications, surveys and warranties relating to the Real Properties to
the extent assignable.
"Land at 0000-0000 X. Xxxxxxxxxx Xxxx." shall mean those certain
parcels of land more particularly described on Exhibit A-1 attached hereto and
incorporated herein by this reference.
"Land at 0000 X. Xxxxxxx Xxxxxx" shall mean that certain parcel of land
more particularly described on Exhibit A-2 attached hereto and incorporated
herein by this reference.
"Land at 000 X. Xxxxxx Xxxxx" shall mean that certain parcel of land
more particularly described on Exhibit A-3 attached hereto and incorporated
herein by this reference.
"Land" refers collectively to the foregoing three parcels of land and
shall include all of the Sellers right, title and interest, if any, in and to
(1) all easements, rights of way, appurtenances, and other rights and benefits
belonging to the parcels of land; and (2) all public or xxxxxxx xxxxxxx, xxxxx,
xxxxxxx, alleys or passageways, open or proposed, on or abutting each of the
parcels of land.
"Lease" shall mean any of the following and "Leases" shall mean all of
the following: (i) the two Lease Agreements made as of December 28, 2000 by
Tenant, as tenant, and CPSIEM, as landlord, covering the Land at 0000-0000 X.
Xxxxxxxxxx Xxxx. and the improvements thereon (ii) the Lease Agreement made as
of December 28, 2000 by Tenant, as tenant, and CPSIEE, as landlord, covering the
Land at 0000 X. Xxxxxxx Xxxxxx and the improvements thereon and (iii) the Lease
Agreement made as of December 28, 2000 by Tenant, as tenant, and CPSIEM, as
landlord, covering the Land at 000 X. Xxxxxx Xxxxx and the improvements thereon.
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"Lease Guaranty" or "Lease Guaranties" shall refer to those certain
Lease Guaranties made as of December 28, 2000 by Guarantor, as guarantor in
favor of the applicable landlord guaranteeing the performance of Tenant's
obligations under the Leases.
"Material Adverse Condition" refers to an environmental or structural
defect set forth in a third party report and affecting a Property the
remediation of which would cost over ten percent of the Purchase Price allocated
to such Property.
"Outside Closing Date" shall have the meaning set forth in Section 13.
"Permitted Exceptions" means those Title Exceptions set forth in the
Title Reports or reflected in the Surveys, and any other exceptions or
conditions that affect or may affect Seller's title to or use of a Property,
that are approved or deemed to be approved by Buyer in accordance with Section
4.
"Property" shall refer to one, and "Properties" to all, of the Real
Properties and the Intangibles pertaining thereto.
"Purchase Price" shall mean the Cash Purchase Price and the Warrant.
"Real Property" shall refer to one, and "Real Properties" to all, of
the parcels of Land together with the Improvements thereon and the appurtenances
pertaining thereto.
"Released Claims" shall have the meaning given in Section 5(g).
"Sellers' Conditions Precedent" shall have meaning given in Section
8(b).
"Seller's Title Notice" shall have meaning given in Section 4.
"Surveys" shall have the meaning specified in Section 4.
"Tenant" means Southwest Medical Associates, Inc., a Nevada
corporation.
"Title Company" shall mean Nevada Title Insurance Company.
"Title Exception" means any lien, deed of trust, security, interest,
encumbrance, pledge, assignment, claim, charge, lease (surface, space, mineral,
or otherwise), condition, restriction, restrictive covenant, exception, easement
(temporary or permanent), right of way, encroachment, overlap, or other
outstanding claim, interest, estate, or equity of any nature that affects a
Property.
"Title Policy" shall have the meaning given in Section 8(a).
"Title Reports" shall have the meaning given in Section 4.
"Title or Survey Objection" shall have the meaning given in Section 4.
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"Warrant" shall have the meaning given in Section 3.2.
"Windrose" shall mean Buyer or if Buyer is not the subject of an
initial public offering, then the affiliate of Buyer whose shares are first
subject to an initial public offering.
"Windrose IPO" shall mean the initial public offering of the stock of
Windrose.
2. PURCHASE AND SALE.
Subject to the terms and conditions of this Agreement, Sellers
agree to sell the Properties to Buyer, and Buyer agrees to purchase the
Properties from Sellers.
3. THE PURCHASE PRICE AND THE ALPHA AND BETA MONIES.
3.1 CASH PURCHASE PRICE.
The cash portion of the purchase price for the
Properties is $38,650,000 (the "CASH PURCHASE PRICE") allocated as
follows: $13,300,000 as to the Property at 0000-0000 X. Xxxxxxxxxx
Xxxx.; $12,250,000 as to the Property at 000 X. Xxxxxx Xxxxx; and
$13,100,000 as to the Property at 0000 X. Xxxxxxx Xxxxxx. The Cash
Purchase Price shall be paid to Sellers by Buyer as follows:
(A) Within one Business Day after the Effective Date, Buyer
shall deposit $200,000 in Escrow with Escrow Company in immediately
available funds (the "ALPHA MONEY"). The Alpha Money shall be allocated
equally between the Property at 2300-2316 W. Charleston and the
Property at 888 S. Rancho. The Alpha Money and Beta Money (described in
Section 3.3 below) deposited with Escrow Company shall be held in an
interest bearing FDIC insured account in an institution as directed by
Buyer and reasonably acceptable to Sellers. If the transaction
contemplated by this Agreement is consummated as to one or more
Properties, the Alpha and Beta Moneys allocated to such Properties plus
all interest accrued thereon shall be paid to (or retained by) Sellers
and credited against the Cash Purchase Price.
(B) The balance of the Cash Purchase Price shall be paid by
Buyer to Escrow Company by wire transfer of immediately available funds
at least one Business Day before the Closing Date, net of all
prorations or adjustments as provided herein, and the Cash Purchase
Price net of all prorations and adjustments as provided herein shall be
wire transferred to Sellers (as directed by Sellers) on the Closing
Date pursuant to the terms hereof.
3.2 THE WARRANT
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In addition to the Cash Purchase Price, the consideration for
the Properties shall include a warrant (the "WARRANT") to purchase
common stock in Windrose. The Warrant shall be issued at Closing to CB
Xxxxxxx Xxxxx Corporate Partners, LLC, a Delaware limited liability
company. The exercise price of the Warrant shall be equal to the price
per share of Windrose common stock as offered to the public in the
Windrose IPO. The exercise period for the Warrant shall expire two (2)
years from the closing of the Windrose IPO. So long as CPSIEE does not
exercise its right to terminate as to the Property at 0000 X. Xxxxxxx
Xxxxxx pursuant to Section 3.3(a) below, the number of shares that are
covered by the Warrant shall be equal to the fraction whose numerator
is $300,000 and whose denominator is the exercise price of the Warrant.
If CPSIEE does exercise its right to terminate as to the Property at
0000 X. Xxxxxxx Xxxxxx pursuant to Section 3.3(a) below, the number of
shares that are covered by the Warrant shall be equal to the fraction
whose numerator is $200,000 and whose denominator is the exercise price
of the Warrant. The Warrant shall be in the form attached hereto as
Exhibit E.
3.3 BETA MONEY AND CPSIEE'S RIGHT TO TERMINATE.
(A) CPSIEE shall have the right to contract with an
unaffiliated third party for the sale of the Property at 0000 X.
Xxxxxxx Xxxxxx at any time prior to Closing (but any such contract
shall be in the nature of a "back up contract" during such times that
this Agreement is in effect as to the Property at 0000 X. Xxxxxxx
Xxxxxx and CPSIEE's termination right under this section has expired or
has been waived). In addition, CPSIEE shall be entitled to terminate
this Agreement as to the Property at 0000 X. Xxxxxxx Xxxxxx by giving
Buyer notice of such termination on or before June 14, 2002. If CPSIEE
does not terminate this Agreement as to the Property at 0000 X. Xxxxxxx
Xxxxxx by giving Buyer notice of such termination on or before June 14,
2002, then such right shall expire. If CPSIEE timely terminates under
this section then the Cash Purchase Price shall be reduced by the
amount allocated to 4475 S. Eastern under Section 3.1 and the
transaction will proceed to Closing as to the remaining Properties. If
CPSIEE waives its right to terminate pursuant to this Section 3.3
before June 14, 2002, then within five Business Days of CPSIEE's
waiver, Buyer shall deposit $100,000 in Escrow in immediately available
funds (the "BETA MONEY") which shall be allocated to the Property at
0000 X. Xxxxxxx Xxxxxx for all purposes under this Agreement.
(B) If this Agreement is not terminated as to the Property at
4475 S. Eastern by CPSIEE pursuant to Section 3.3(a) above or by Buyer
pursuant to Section 5(e) below, then within two Business Days after the
expiration of the Due Diligence Period: (i) if Buyer has not already
deposited the Beta Money in accordance with Section 3.3(a), Buyer shall
pay the Beta Money as follows: $75,000 to CPSIEE as a non-refundable
deposit and $25,000 to Escrow as a non-refundable deposit and (ii) if
Buyer has deposited the Beta Money pursuant to Section 3.3(a), Escrow
Holder shall release $75,000 to CPSIEE as a non-refundable deposit and
shall retain the sum of $25,000 as a non-refundable deposit.
3.4 DISPOSITION OF THE ALPHA AND BETA MONIES FOLLOWING
CERTAIN TERMINATIONS.
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(A) If Buyer terminates this Agreement as to one or more
Properties pursuant to Sections 4(d) or 5(e) below, then (i) the
portion of the Alpha and Beta Monies allocated to the terminated
Properties (less Sellers' actual out of pocket legal fees not to exceed
$15,000 (in total) which shall be paid to Sellers) shall be refunded to
Buyer and (ii) unless Sellers exercise their termination rights under
Section 5(h) below, the parties shall proceed to Closing of the sale of
the remaining Properties and 75% of the remaining Alpha and Beta Monies
(after the refund to Buyer under the preceding clause) shall be
released to Sellers as a non-refundable deposit and the rest of the
remaining Alpha and Beta Monies shall be held by the Escrow Holder as a
non-refundable deposit.
(B) If Buyer terminates this Agreement as to one or more
Properties pursuant to Sections 15(a), 15(b), or 16(a) below, then the
portion of the Alpha and Beta Monies allocated to the terminated
Properties shall be refunded to Buyer and the parties shall proceed to
Closing of the sale of the remaining Properties.
(C) Buyer may terminate this Agreement as to any Property
after expiration of the Due Diligence Period if it learns of a Material
Adverse Condition with respect to such Property and prior to Closing
gives Sellers notice of termination identifying the applicable Property
and the Material Adverse Condition and attaching a copy of the report
identifying such Material Adverse Condition. In the event of such
termination: (i) Sellers shall retain that portion of the Alpha or Beta
Monies allocated to such Property as a nonrefundable fee and such fee
shall not be credited towards payment of the Purchase Price and (ii)
the parties shall proceed to closing of the sale of the other
Properties but the Purchase Price shall be reduced by the amount
allocated under Section 3.1 to the Property with the Material Adverse
Condition so terminated.
(D) For the purposes of this Agreement, the Property at
0000-0000 X. Xxxxxxxxxx Xxxx. shall be treated as a single Property.
Thus, under no circumstances may Buyer terminate this Agreement as to
only 0000 X. Xxxxxxxxxx or only as to 0000 X. Xxxxxxxxxx.
4. TITLE AND SURVEY
(A) Sellers, at their expense, have furnished Buyer with a
preliminary title report issued by Nevada Title Company for each Real
Property (the "TITLE REPORTS"), together with copies of all documents
referred to in the Title Reports. Sellers have furnished Buyer with a
copy of the most recent ALTA survey (in Seller's possession) of each
Real Property (the "SURVEYS").
(B) Buyer's obligations under this Agreement are conditioned
on Buyer's approval of the Surveys and the status of title to the Real
Properties. On or before June 3, 2002 Buyer shall notify Sellers in
writing of its disapproval of any Title Exceptions. If Buyer has not
notified Sellers in writing of its disapproval of any Title Exceptions
within such period, it shall be deemed to have approved them. Any Title
Exception to which
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Buyer makes timely objection hereunder shall be referred to as a "Title
or Survey Objection".
(C) If Buyer has made a Title or Survey Objection in
accordance with Section 4(b), then Sellers shall have nine days after
delivery of Buyer's Title or Survey Objection, to give notice to Buyer
("SELLER'S TITLE NOTICE"), stating as to each Title or Survey Objection
either (a) that Sellers intends to satisfy, correct or remove the
objected to Title Exception or obtain title insurance coverage therefor
(or has already cured it) or (b) that Sellers do not intend to remove
such Title Exception. If Sellers fail to deliver Seller's Title Notice
within the time specified in this section 4(c) or otherwise fails to
give timely notice of its intent to cure a Title or Survey Objection,
Sellers shall be deemed to have elected not to cure any such Title or
Survey Objection.
(D) If Sellers elects not to cure a Title or Survey Objection
(or are deemed to have so elected), then Buyer shall have two Business
Days after (i) delivery of the Seller's Title Notice or (ii) the
expiration of the nine day period set forth in Section 4(c) if no
Seller's Title Notice is delivered to Buyer, to deliver a written
notice to Sellers ("BUYER'S ELECTION NOTICE") of Buyer's election
either to (i) waive such Title or Survey Objection and proceed with the
purchase of the Properties or (ii) terminate this Agreement as to one
or more Properties affected by such Title or Survey Objection. If Buyer
fails to deliver Buyer's Election Notice within the time specified in
this section 4(d), Buyer shall be deemed to have elected to waive any
Title or Survey Objections that Sellers have not agreed to cure. Any
Title Exception not objected to by Buyer and any Title Exception waived
by Buyer shall be deemed to be a Permitted Exception.
5. DUE DILIGENCE INSPECTIONS, CERTAIN COVENANTS, AND
CERTAIN TERMINATION RIGHTS.
(A) As used in this Agreement, the term "DUE DILIGENCE PERIOD"
shall mean the period from the Commencement of Due Diligence until 5:00
p.m. Pacific time on June 14, 2002. During the Due Diligence Period,
and upon not less than one Business Day advance notice to Sellers and
after providing Sellers with a copy of Buyer's liability insurance
policy (with limits of at least $1 million per occurrence issued by a
company reasonably acceptable to Sellers) covering accidents caused by
Buyer during its investigation of the Property, Buyer, its agents and
representatives shall be entitled to enter onto the Real Properties at
all times accompanied by Sellers' agent and during reasonable business
hours (subject to the rights of tenants in possession) to perform
inspections and tests of the Real Properties including, without
limitation, the structural and mechanical systems within any
Improvements, and an inspection of the environmental condition thereof.
In no event shall (i) such inspections or tests disrupt or disturb the
on-going operation of the Properties or the rights of the tenants at
the Properties, or (ii) Buyer or its agents or representatives drill or
bore on or through the surface of the Properties without Sellers' prior
written consent, which consent may be given or withheld in Sellers'
sole and absolute discretion. Within ten days after making such tests
and inspections, Buyer shall promptly restore the Property to its
condition prior to such tests and inspections (which obligation shall
survive the Closing or any
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termination of this Agreement). At Sellers' request, Buyer agrees to
promptly deliver to Sellers copies of all reports, studies and results
of tests and investigations obtained or conducted by Buyer or its
agents or representatives with respect to the Properties.
(B) Buyer agrees to keep the Properties free from all liens
resulting from any such investigations (and including any
investigations conducted by Buyer or its agents or representatives
prior to the Effective Date) and to indemnify, defend, and hold
harmless Sellers and Tenant and all of their respective officers,
directors, shareholders, beneficiaries, members, partners, agents,
employees, lenders and attorneys, and their respective successors and
assigns, from and against all claims, actions, losses, damages, and
expenses incurred, suffered by, or claimed against them by reason of
the exercise by Buyer or its agents, employees or contractors of its
rights under this Section 5 (and by reason of any investigations
conducted by such parties prior to the Effective Date), except, with
respect to each indemnified party, to the extent that any such claims,
actions, losses, damages, and expenses is the result of the gross
negligence or willful misconduct of such indemnified party. This
indemnity shall survive the Closing or any termination of this
Agreement.
(C) Buyer acknowledges receipt of the documents set forth on
Exhibit B. Buyer acknowledges and agrees that Sellers delivered such
documents to Buyer in order to accommodate and facilitate Buyer's
investigations relating to the Properties, and that, except as
expressly set forth herein, Sellers make no representations or
warranties of any kind regarding the accuracy or thoroughness of the
information contained in the materials delivered to Buyer, except that
Seller warrants that the Leases and Lease Guaranties delivered to Buyer
are true and correct copies of the originals.
(D) During the Due Diligence Period and with reasonable
advance notice to Sellers, Buyer and its agents and representatives
shall be entitled to inspect, during Sellers' regular business hours at
Sellers' offices, any other material documents, if any, relating to the
Properties (provided, however, that, except as expressly set forth
herein, Sellers make no representations or warranties of any kind
regarding the accuracy or thoroughness of the information contained in
such documents), excluding, however, Sellers' internal appraisals and
economic evaluations of the Properties and reports regarding the
Properties prepared solely for internal use or for the information of
the investors in Sellers.
(E) Buyer may at any time during the Due Diligence Period
terminate this Agreement as to any of the Properties in its sole and
absolute discretion, by sending to Sellers and Escrow Company written
notice indicating Buyer's election to terminate and identifying the
Property or Properties to which the election applies. Buyer's failure
to terminate this Agreement prior to the expiration of the Due
Diligence Period in accordance with the provisions of this Section 5
shall be deemed approval of the Properties and all matters relating
thereto, including without limitation, the matters covered by Buyer's
investigations and inspections thereof, and the only remaining
contingencies to Buyer's obligation to consummate the transaction
contemplated herein shall be Buyer's Conditions Precedent as set forth
in Section 8(a) below. If Buyer does
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not timely terminate this Agreement as to all of the Properties
pursuant to this Section 5(e), then unless Sellers exercise their
termination rights under Section 5(h) below, after expiration of the
Due Diligence Period, 75% of the remaining Alpha and Beta Monies (after
any refund to Buyer pursuant to Section 3.4(a)) shall be released to
Sellers as a non-refundable deposit and 25% of the remaining Alpha and
Beta Monies shall be held by the Escrow Holder as a non-refundable
deposit.
(F) Notwithstanding anything to the contrary contained in this
Agreement, prior to the Closing, Buyer agrees not to communicate or
negotiate with Tenant without Sellers' prior written consent which
consent shall not be unreasonably withheld or delayed.
(G) Buyer or anyone claiming by, through or under Buyer,
hereby, except as otherwise expressly provided for in this Agreement,
fully and irrevocably releases Sellers and Sellers' officers,
directors, members, agents, employees and attorneys, and their
respective successors and assigns, from any and all claims that it may
now have or hereafter acquire against Sellers and their officers,
directors, members, agents, employees and attorneys, and their
respective successors and assigns, for any action, claim, damage,
expense, fine, judgment, lien, loss, or penalty, arising from or
related to the Properties, or the ownership, operation, leasing or
management thereof, any construction defects, errors or omissions on or
in the Properties, the presence of environmentally hazardous, toxic or
dangerous substances, or any other conditions (whether patent, latent
or otherwise) affecting the Properties, or any law or regulation
applicable thereto (including, without limitation, Environmental Laws),
except for claims against Sellers based upon any obligations and
liabilities of Sellers to the extent such obligations and liabilities
are expressly provided for in this Agreement (collectively, "RELEASED
Claims"). Buyer further acknowledges and agrees that this release shall
be given full force and effect according to each of its expressed terms
and provisions, including, but not limited to, those relating to
unknown and suspected claims, damages and causes of action. As a
material covenant and condition of this Agreement, Buyer agrees that in
the event of any such Released Claim affecting the Properties, Buyer
shall not look to Sellers for any redress or relief, except for claims
against Sellers based upon any obligations and liabilities of Sellers
to the extent such obligations and liabilities are expressly provided
for in this Agreement.
The foregoing waivers and releases by Buyer shall survive the Closing.
From time to time, at the request of either Seller or its officers,
directors, members, partners, agents, employees and attorneys, and
their respective successors and assigns, Buyer shall execute such
further instruments as are reasonably required by such parties
confirming the waivers set forth above.
(H) Notwithstanding anything to the contrary herein, if Buyer
exercises its right to terminate this Agreement as to some but not all
of the Properties pursuant to Section 5(e) above, then Sellers may
terminate this Agreement as to the remaining Properties by giving Buyer
notice of termination within five Business Days of Buyer's termination
and by returning to Buyer all of the Alpha and Beta Monies less
Sellers'
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actual out of pocket legal fees not to exceed $15,000 (in total) which
shall be paid to or retained by Sellers.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS.
(A) Each Seller represents and warrants to Buyer that the
following matters are true and correct as to such Seller and such Seller's
Properties as of the Effective Date and as of the Closing:
(I) Seller is a limited liability company, duly
organized, validly existing and in good standing under the
laws of the State of Delaware.
(II) This Agreement is, and all the documents
executed by Seller which are to be delivered to Buyer at the
Closing will be, duly authorized, executed, and delivered by
Seller, and is and will be legal, valid, and binding
obligations of Seller enforceable against Seller in accordance
with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or
limiting the right of contracting parties generally).
(III) Except as set forth in the materials delivered
or made available to Buyer (whether or not the same are
reviewed by Buyer) pursuant to Section 5 above or as otherwise
disclosed in writing to Buyer prior to the end of the Due
Diligence Period, to Seller's actual knowledge, there are no
pending legal proceedings or administrative actions of any
kind or character materially and adversely affecting the
Properties.
(IV) Except as set forth in the materials delivered
or made available to Buyer (whether or not the same are
reviewed by Buyer) pursuant to Section 5 above or as otherwise
disclosed in writing to Buyer prior to the end of the Due
Diligence Period, to Seller's actual knowledge, and except as
set forth in the tenant estoppel certificate delivered to
Buyer pursuant to Section 8(a) below, (i) each Lease and each
Lease Guaranty are in full force and effect, (ii) no
concessions, abatements or adjustments have been granted to
Tenant except as specified in the applicable Leases and (iii)
there is no current default in the performance of the
obligations of any party under any of the applicable Leases or
Lease Guaranties.
(V) Seller is not a party to any property management
or leasing commission agreements with respect to the
Properties.
(VI) Seller has not entered into any mortgages or
consensual liens encumbering the Properties, except for the
indebtedness ("Existing Indebtedness") secured by the
mortgages shown on the Title Reports. At Closing, Seller shall
cause the Properties to be released from any liens, claims or
encumbrances of any nature related to such indebtedness (or
shall cause the
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applicable lender to have delivered to Escrow Holder a payoff
letter promising to so release such indebtedness promptly
following the Closing).
(VII) Seller has not collected any prepaid rent (more
than one month in advance) under the Leases with respect to
any of the Properties.
As used in this Agreement, the phrase "to Seller's actual knowledge" or words of
similar import shall mean the actual (and not constructive or imputed)
knowledge, without independent investigation or inquiry, of Xxxxx Xxxxx and
Xxxxxx Xxxxx (and each Seller represents that Xxxxx Xxxxx and Xxxxxx Xxxxx are
the individuals with primary responsibility for the sale and the management of
Sellers' interest in the Properties). Buyer acknowledges that the primary
obligation for physical management of the Real Properties resides with Tenant.
Notwithstanding any other provision in this Agreement, neither Xx. Xxxxx nor Xx.
Xxxxx shall have any personal liability in connection with, or arising out of,
any representation made by the Sellers in this Agreement or any failure to
disclose by Sellers.
Any action, suit or proceeding with respect to the truth, accuracy or
completeness of such representations and warranties shall be commenced, if at
all, on or before the date which is six months after the date of the Closing
and, if not commenced on or before such date, thereafter shall be void and of no
force or effect. No Seller shall have any liability with respect to any of the
foregoing representations and warranties if, prior to the Closing, Buyer
discovers or learns of information (from whatever source, including, without
limitation, the tenant estoppel certificates delivered pursuant to Section 8(a)
below, as a result of Buyer's due diligence tests, investigations and
inspections of the Properties, or written disclosure by a Seller or its agents
and employees) that contradicts any of the foregoing representations and
warranties, or renders any of the foregoing representations and warranties
untrue or incorrect, and Buyer nevertheless consummates the transaction
contemplated by this Agreement.
(B) Sellers covenant with Buyer that after the Effective Date
and until either this Agreement has been terminated (as to the applicable
Property) or there has been a default under this Agreement by Buyer or the
Closing occurs, Sellers shall not enter into any new lease, service or
management agreements, or other similar agreements, or amend, modify or extend
any Lease or any service or management agreements, or other similar agreements
without the prior written consent of Buyer (which consent shall not be
unreasonably withheld or delayed).
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER.
(A) Buyer represents and warrants to Sellers that the
following matters are true and correct as of the Effective Date and will also be
true and correct as of the Closing:
(I) Buyer is a Maryland REIT, duly organized, validly
existing and in good standing under the laws of the State of
Maryland.
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(II) This Agreement is, and all the documents
executed by Buyer which are to be delivered to Sellers at the
Closing will be, duly authorized, executed, and delivered by
Buyer, and is and will be legal, valid, and binding
obligations of Buyer enforceable against Buyer in accordance
with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or
limiting the right of contracting parties generally).
(III) That (A) prior to the Closing, Buyer will have
had the opportunity to investigate all physical and economic
aspects of the Properties and to make all inspections and
investigations of the Properties which Buyer deems necessary
or desirable to protect its interests in acquiring the
Properties, including, without limitation, review of the
Leases (and the rights of the Tenant thereunder), building
permits, financial statements, certificates of occupancy,
environmental audits and assessments, toxic reports, surveys,
investigation of land use and development rights, development
restrictions and conditions that are or may be imposed by
governmental agencies, agreements with associations affecting
or concerning the Properties, the condition of title, soils
and geological reports, engineering and structural tests,
insurance contracts, contracts for work in progress, marketing
studies, governmental agreements and approvals, architectural
plans and site plans, and (B) except as otherwise expressly
set forth in this Agreement, neither Seller, nor anyone acting
for or on behalf of either Seller, has made any
representation, warranty, promise or statement, express or
implied, to Buyer, or to anyone acting for or on behalf of
Buyer, concerning the Properties or the condition, use or
development thereof. Buyer further represents and warrants
that, in entering into this Agreement, Buyer has not relied on
any representation, warranty, promise or statement, express or
implied, of either Seller, or anyone acting for or on behalf
of either Seller, other than as expressly set forth in this
Agreement, and that all matters concerning the Properties have
been or shall be independently verified by Buyer prior to the
Closing, and that Buyer shall purchase the Properties on
Buyer's own prior investigation and examination (or Buyer's
election not to do so); AND THAT, AS A MATERIAL INDUCEMENT TO
THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLERS, BUYER
ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE PROPERTIES ARE BEING SOLD "AS IS" WITH ALL
FAULTS AND IN "AS IS" PHYSICAL CONDITION AND IN "AS IS" STATE
OF REPAIR, WITH ALL FAULTS). Except as may be set forth in
this Agreement, Buyer waives and releases Sellers from, and
each Seller disclaims, all warranties of any type or kind
whatsoever with respect to the Properties, whether express or
implied, including, by way of description but not limitation,
those of fitness for a particular purpose and use.
Notwithstanding anything to the contrary herein, Buyer and
Sellers acknowledge that any written disclosures made by
either Seller prior to the Closing shall constitute notice to
Buyer of the matter disclosed, and Sellers shall have no
further liability thereafter if Buyer thereafter consummates
the transaction contemplated hereby.
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(B) If the transaction contemplated by this Agreement is not
consummated for any reason with respect to one or more Properties,
within three Business Days after termination of this Agreement as to a
Property, Buyer shall return to Sellers, and instruct any recipients of
such information or materials to return to Sellers, all copies and
originals of information and materials related to such Property
previously provided or made available for inspection by Sellers to
Buyer. The provisions of this Section 7 shall survive any termination
of this Agreement and the Closing.
(C) Buyer shall keep Sellers apprised of its progress and
filings with respect to the Windrose IPO to the extent permitted under
applicable SEC and state rules and regulations, and Sellers agree to
keep such information confidential until the information has been
released to the public and shall maintain such information in
accordance with the applicable SEC and state rules and regulations.
8. CONDITIONS PRECEDENT TO THE CLOSING.
(A) The following shall be conditions precedent to Buyer's
obligation to consummate the transaction contemplated by this Agreement
(the "BUYER'S CONDITIONS PRECEDENT"):
(i) Buyer shall not have terminated this Agreement in
accordance with Section 3.4(c), Section 4(d), Section 5(e),
Section 15(a) or Section 15(b) (and Sellers shall not have
terminated this Agreement in accordance with Section 3.3(a) or
Section 5(h)) of this Agreement within the time periods
described in such Sections as to the Properties to be sold.
(ii) The Title Company shall be ready, willing and
able to issue as of the Closing Date, an ALTA standard
coverage owners policy of title insurance ("TITLE POLICY") for
each Real Property to be sold insuring fee ownership of such
Real Property in the name of Buyer or its assignee in the
amount of the Purchase Price allocated to such Real Property,
subject only to the Permitted Exceptions and other items that
have been approved by Buyer pursuant hereto.
(iii) Buyer shall have received an executed estoppel
certificate from Tenant as to each Lease substantially in the
form attached as Exhibit C-1. Buyer shall also have received
an executed estoppel certificate from Guarantor, dated no
earlier than thirty days before the Closing Date, in the form
attached as Exhibit C-2 without any substantive changes made
thereto by Guarantor (other than changes, if any, approved by
Buyer).
(iv) There shall be no material breach of any of
Sellers' representations, warranties or covenants set forth in
Section 6, as of the Closing.
(v) Sellers shall have delivered (or caused to be
delivered) to the Escrow Company the items described in
Section 10, including any releases of, or
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payoff letters relating to, the Existing Indebtedness required
by the Title Company in order to issue the Title Policy.
The conditions set forth in this Section 8(a) are solely for the
benefit of Buyer and may be waived only by Buyer in writing. Buyer
shall, at all times prior to the termination of this Agreement, have
the right to waive in writing any of these conditions.
(B) The following shall be conditions precedent to Sellers'
obligation to consummate the transaction contemplated by this Agreement
(the "SELLERS' CONDITIONS PRECEDENT"):
(i) Buyer shall not have terminated this Agreement in
accordance with Section 3.4(c), Section 4(d), Section 5(e),
Section 15(a) or Section 15(b) (and Sellers shall not have
terminated this Agreement in accordance with Section 3.3(a) or
Section 5(h)) of this Agreement within the time periods
described in such Sections as to the Properties to be sold.
(ii) Buyer shall have delivered to Escrow Company,
prior to the Closing, for disbursement as directed hereunder,
all cash or other immediately available funds due from Buyer
in accordance with this Agreement.
(iii) There shall be no material breach of any of
Buyer's representations, warranties or covenants set forth in
Section 5 and Section 7, as of the Closing.
(iv) Buyer shall have delivered to Escrow Company the
items described in Section 11.
The conditions set forth in this Section 8(b) are
solely for the benefit of Sellers and may be waived only by
Sellers in writing. Sellers shall, at all times prior to the
termination of this Agreement, have the right to waive in
writing any of these conditions.
9. OPENING OF ESCROW
Escrow has been opened with Escrow Company. Buyer and Sellers shall,
within one Business Day after the final execution of this Agreement by all
parties, deliver a fully executed copy of this Agreement to Escrow Company. The
Escrow Company is authorized and instructed to act in accordance with this
Agreement, which shall constitute escrow instructions for this transaction. If
the Escrow Company requires any additional instructions, Buyer and Sellers shall
execute and deliver to Escrow Company any such additional or supplementary
instructions as may be necessary or convenient to implement the terms of this
Agreement and close the transaction contemplated hereby, provided that they are
not inconsistent with the terms of this Agreement.
10. SELLERS' CLOSING DELIVERIES.
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Except for the original copy of the Leases and Lease
Guaranties which shall be delivered to Buyer within five Business Days following
the Closing, at least one Business Day before the Closing, Sellers shall deliver
or cause to be delivered to Escrow Company the following:
(A) A Grant, Bargain, Sale Deed ("DEED") for each Real
Property duly executed and acknowledged in recordable form by the
applicable Seller, conveying such Real Property to Buyer.
(B) An affidavit duly executed by each Seller certifying that
it is not a "foreign person" within the meaning of Section 1445(f)(3)
of the Code (the "FIRPTA CERTIFICATE").
(C) An Assignment and Assumption of Lease and Lease Guaranty
for each Real Property in the form attached as Exhibit D, duly executed
by the applicable Seller.
(D) Such proof of each Seller's authority and authorization to
enter into this Agreement and consummate the transactions contemplated
hereby as may be reasonably required by the Title Company or Buyer.
(E) The Warrant duly executed by CB Xxxxxxx Xxxxx Corporate
Partners, LLC as the registered holder thereof.
(F) Any other documents, instruments or agreements reasonably
necessary to effectuate the transaction contemplated by this Agreement.
11. BUYER'S CLOSING DELIVERIES.
At least one Business Day prior to the Closing Date, Buyer
shall deliver to Escrow Company:
(A) The balance of the Cash Purchase Price, together with such
other sums as Escrow Company shall require to pay Buyer's share of the
Closing costs, prorations, reimbursements and adjustments as set forth
in Sections 12 and 13 herein, in immediately available funds.
(B) Such proof of Buyer's authority and authorization to enter
into this Agreement and consummate the transactions contemplated hereby
as may be reasonably required by the Title Company or Sellers.
(C) An Assignment and Assumption of Lease and Lease Guaranty
for each Real Property in the form attached as Exhibit D, duly executed
by Buyer.
(D) The Warrant duly executed by Windrose.
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(E) Any other documents, instruments or agreements reasonably
necessary to effectuate the transaction contemplated by this Agreement.
12. PRORATIONS, ADJUSTMENTS AND SETTLEMENT STATEMENT.
(A) Basic Rent under each Lease shall be prorated and adjusted
between Buyer and the applicable Seller as of the Closing Date. All
Basic Rent that is due and payable for the period prior to the Closing
Date will be for the account of Seller and all Basic Rent that is due
and payable for the period on and after the Closing Date will be for
the account of Buyer. The provisions of this Section 12 shall survive
the Closing. For purposes of calculating prorations, Buyer shall be
deemed to be in title to a Property, and, therefore, entitled to the
income therefrom for the entire day upon which the Closing occurs. Such
proration shall be made on the basis of the actual number of days of
the monthly rental period (to which a prepayment of rent applies) which
shall have elapsed as of the Closing Date and based upon the actual
number of days remaining in such monthly rental period following the
Closing Date. There shall be no adjustments at Closing with respect to
any expenses payable by Tenant under the Leases.
(B) Prior to Closing, Escrow Holder shall prepare a settlement
statement for each party (to be signed by such party) in customary
form, setting forth the prorations and other credits and debits to the
Purchase Price set forth herein.
13. CLOSING.
(A) (i) Escrow shall close (the "CLOSING") after all Buyer's
and Sellers' Conditions Precedent have been satisfied or waived on a
date ("CLOSING DATE") mutually agreed to by the parties, but in no
event later than the Outside Closing Date. The term "OUTSIDE CLOSING
DATE" shall mean the earlier of (a) August 2, 2002 and (b) the tenth
day following the funding of the Windrose IPO; provided, however, if
the Windrose IPO is proceeding, but not funded by July 31, 2002, Buyer
may extend the Outside Closing Date for an additional period not to
exceed August 30, 2002 upon the release to Sellers of the remaining
Alpha and Beta Monies as a nonrefundable deposit. The Closing shall
take place in the offices of the Escrow Company or such other place as
is mutually acceptable to Buyer and Sellers, although Buyer and Sellers
need not be physically present at the Closing. If this transaction does
not Close by the Outside Closing Date (as may be extended) and the
transaction has not been previously terminated, then either party (not
then in default) may elect to terminate this Agreement in which case
any of the remaining Alpha or Beta Monies not previously released to
Sellers as a nonrefundable fee shall be returned to Buyer (except that
Sellers shall retain a sufficient sum (not to exceed $15,000) to cover
its out of pocket legal fees), and neither party shall have any
obligations to the other except on account of any breach of this
Agreement or except as expressly provided hereunder.
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(ii) If the Windrose IPO is not closed within three
Business Days before the Outside Closing Date (as may be extended
pursuant to Section 13 (a) (i)), Buyer may terminate this Agreement by
giving Sellers notice of its election to terminate based on the failure
of the Windrose IPO to timely close at least three Business Days before
the Outside Closing Date. However, if Buyer makes such election,
Sellers shall retain all of the Alpha and Beta Monies as a
nonrefundable fee.
(B) Sellers shall pay the cost of the Title Policy, any
costs associated with reconveying the existing deeds of trust and
releasing the Properties from the Existing Indebtedness, and 1/2 of the
Escrow Company's fee. Buyer shall pay the premium for any additional
coverage or endorsements to the Title Policy not set forth in Section
8(a)(ii) above, all transfer taxes, any additional due diligence
reports requested by Buyer, all expenses related to its financing, all
recording fees, and 1/2 of the Escrow Company fee. Each party shall
bear the expense of its own counsel.
(C) At the Closing, Escrow Company shall promptly:
(I) Disburse all funds deposited with Escrow
Company by Buyer as follows:
(A) Apply all applicable deductions and
credits to the account of the applicable Seller in
accordance with this Agreement.
(B) Disburse to the applicable lender (and
deduct from the account of Seller) the amount
necessary to release the Existing Indebtedness.
..
(C) Disburse the expenses payable by Buyer
and Sellers pursuant to this Agreement to the parties
entitled thereto.
(D) Disburse to Sellers the amount due to
Sellers in accordance with the terms hereof.
(E) Disburse the remaining balance of the
funds, if any, to Buyer.
(II) Following disbursement, as to each Real
Property, record first such documents as are necessary to
reconvey the existing deeds of trust and release the
Properties from the Existing Indebtedness and then the Deed in
the official records of the county in which the Real Property
is located. Escrow Company shall obtain conformed copies
thereof for distribution to Buyer and Sellers.
(III) Direct the Title Company to issue each Title
Policy to Buyer.
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(IV) Deliver to Buyer the FIRPTA Certificates, each
Assignment and Assumption of Lease and Lease Guaranty executed
by the applicable Seller, a copy of the fully executed
Warrant, and the entity authorizing resolution of Sellers. The
Deeds shall be delivered to Buyer after recordation.
(V) Deliver to Sellers the Warrant, each Assignment
and Assumption of Lease and Lease Guaranty executed by Buyer
and the entity authorizing resolution of Buyer. The
reconveyances of the deeds of trust shall be delivered to
Sellers after recordation.
14. INDEMNITY.
(A) Each Seller hereby agrees to indemnify and defend Buyer
and its agents, shareholders and members and hold them harmless from
any and all claims, damages, proceedings, loss or expense asserted
against or incurred by them incident to, resulting from, or in any way
arising out of (i) any and all liabilities of Sellers, of any nature,
arising out of Sellers' ownership of the Properties prior to the
Closing or (ii) breach of any of the representations, warranties or
covenants of Sellers set forth in Section 6 above (iii) any tort claim
or breach of contract claim or other claim by any third party for money
due and owing in connection with the ownership of the Properties to the
extent that such claim arises from acts or omissions of any person or
entity (other than Buyer) which occurred on or before the Closing.
(B) Buyer hereby agrees to indemnify and defend Sellers and
its agents, member, and managers and hold them harmless from any and
all claims, damages, proceedings, loss or expense asserted against or
incurred by them incident to, resulting from, or in any way arising out
of (i) any and all liabilities of Buyer, of any nature, arising out of
Buyer's ownership of the Properties from and after the Closing, (ii)
breach of any of the representations, warranties or covenants of Buyer
set forth in Section 7 above, or (iii) any tort claim or breach of
contract claim or other claim by any third party for money due and
owing in connection with the ownership of the Properties to the extent
that such claim arises from acts or omissions of any person or entity
(other than Sellers) which occurred on or after the Closing.
(C) The right to indemnification under this Agreement shall
not arise to the extent that the party seeking indemnification actually
receives insurance proceeds or other cash payments directly
attributable to the liability in question (net of the cost of
collection, including reasonable attorney's fees).
(D) The provisions of this Section 14 shall survive the
Closing.
15. RISK OF LOSS.
(A) If prior to the Closing, the Improvements as to a Real
Property, or any part thereof, are materially damaged (as set forth in
Section 15(d)), Buyer shall have the right, exercisable by giving
written notice to Sellers within five days after receiving written
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notice of such damage or destruction (but in any event prior to the
Closing), either (i) to terminate this Agreement as to the applicable
Property, in which case the parties shall proceed to Closing as to the
remaining Properties and the Purchase Price shall be reduced by the
amount allocated to the applicable Property in Section 3.1 or (ii) to
consummate the transaction contemplated by this Agreement (accepting
the applicable Property in its then condition) without any reduction in
the Purchase Price. A failure by Buyer to notify Sellers in writing
within such five-day period shall be deemed an election to proceed
under clause (ii) above. If Buyer elects (or is deemed to elect) to
proceed under clause (ii) above, Sellers shall not compromise, settle
or adjust any claims to insurance proceeds payable by reason of such
damage without Buyer's prior written consent, which shall not be
unreasonably withheld or delayed, and the applicable Seller shall
assign its rights to such proceeds to Buyer.
(B) If prior to the Closing, all or any material portion (as
set forth in Section 15(d)) of a Property is subject to a taking by
public authority, Buyer shall have the right, exercisable by giving
written notice to Sellers within five days after receiving written
notice of such taking (but in any event prior to the Closing), either
(i) to terminate this Agreement as to the applicable Property, in which
case the parties shall proceed to Closing as to the remaining
Properties and the Purchase Price shall be reduced by the amount
allocated to the applicable Property in Section 3.1 or (ii) to
consummate the transaction contemplated by this Agreement (accepting
the applicable Property in its then condition) without any reduction in
the Purchase Price. A failure by Buyer to notify Sellers in writing
within such five-day period shall be deemed an election to proceed
under clause (ii) above. If Buyer elects (or is deemed to elect) to
proceed under clause (ii) above, Sellers shall not compromise, settle
or adjust any claims to the condemnation award payable by reason of
such taking without Buyer's prior written consent, and the applicable
Seller shall assign its rights to any such condemnation award to Buyer.
As used in this Section 15, "TAKING" shall mean any transfer of a
Property or any portion thereof to a governmental entity or other party
with appropriate authority, by exercise of the power of eminent domain.
(C) If prior to the Closing, any non-material portion of a
Property is damaged or subject to a taking, Buyer shall consummate the
transaction contemplated by this Agreement (accepting the Property in
its then condition) without any reduction in the Purchase Price. If any
such non-material damage or taking occurs, Sellers shall not
compromise, settle or adjust any claims to insurance proceeds or a
condemnation award, as the case may be, without Buyer's prior written
consent which shall not be unreasonably withheld or delayed and the
applicable Seller shall assign its rights to such proceeds or such
award to Buyer.
(D) For the purpose of this Section 15, damage to a Property
or a taking of a portion thereof shall be deemed to involve a material
portion thereof if (i) such damage or taking gives the Tenant under the
applicable Lease the right to terminate such Lease and/or receive an
abatement of rent or (ii) the reasonably estimated cost of restoration
or repair of such damage or the amount of the condemnation award with
respect to such taking shall exceed ten percent of the Purchase Price
allocated to the applicable Property.
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(E) Sellers agree to give Buyer notice of any taking, damage
or destruction of a Property promptly after either Seller obtains
knowledge thereof.
16. DEFAULT.
(A) If the transaction contemplated by this Agreement fails to
close as a result of a Seller's default in its obligations under this
Agreement, Buyer shall have (i) the right to specific performance
(subject to the requirements of Nevada law) or (ii) the right to
terminate the Agreement as to the affected Properties in which case the
Alpha and Beta Moneys allocated to the terminated Properties shall be
returned to Buyer and neither party shall have any further obligations
to the other with respect to such Properties, except any obligations
hereunder that expressly survive termination. Buyer shall not have the
right to xxx for damages if the transaction contemplated hereunder does
not close.
(B) If the transaction contemplated by this Agreement fails to
close as a result of a Buyer's default in its obligations under this
Agreement, Sellers shall have all remedies at law or in equity
(including specific performance, if available); provided, however, that
in an action for damages, Sellers shall be limited to recovery of the
sum of $400,000 in addition to any nonrefundable fee retained by
Sellers hereunder. Sellers shall not be entitled to recover any
punitive damages from Buyer.
(C) Notwithstanding anything to the contrary contained in this
Agreement, Sellers' maximum monetary liability under this Agreement
(exclusive of Buyer's right to specific performance) and any documents
executed by either Seller pursuant hereto or in connection herewith
shall not exceed the greater of (a) any Alpha or Beta Monies to which
Buyer is entitled or (b) $100,000.
(D) Any action, suit or proceeding brought by Buyer against
Sellers under this Agreement and any documents executed by either
Seller pursuant hereto or in connection herewith shall be commenced and
served, if at all, on or before the date which is six months after the
date of the Closing and, if not commenced and served on or before such
date, thereafter shall be void and of no force or effect.
(E) The provisions of this Section 16 shall survive the
Closing.
17. BROKER'S COMMISSION.
Buyer and the Sellers each represents and warrants that it has
not dealt with any real estate broker, sales person or finder in connection with
this transaction other than CB. Buyer acknowledges that it has employed
Commercial Industrial Real Estate Associates, Inc. ("CIREA") and it has been
involved in introducing Buyer to the Sierra properties. Buyer acknowledges and
agrees it is responsible for the payment of any fees due CIREA. In the event of
any claim for broker's or finder's fees or commissions in connection with the
negotiation, execution or consummation of this Agreement or the transactions
contemplated hereby, each party shall indemnify, defend and hold harmless the
other party from and against any such claim
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based upon any actual or alleged statement, representation or agreement of the
indemnifying party. If the Closing occurs as provided in this Agreement, Sellers
shall pay a commission to CB pursuant to a separate agreement between Sellers
and CB. Seller acknowledges and agrees that it is not obligated to pay any fee
to CIREA. The provisions of this Section 17 shall survive the Closing.
18. MISCELLANEOUS.
(A) Each individual and entity executing this Agreement
represents and warrants that he, she or it has the capacity set forth
on the signature pages hereof with full power and authority to bind the
party on whose behalf he, she or it is executing this Agreement to the
terms hereof.
(B) This Agreement is the entire Agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether oral or written, between
the parties with respect to the matters contained in this Agreement.
Any waiver, modification, consent or acquiescence with respect to any
provision of this Agreement shall be set forth in writing and duly
executed by or on behalf of the party to be bound thereby. No waiver by
any party of any breach hereunder shall be deemed a waiver of any other
or subsequent breach.
(C) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument.
(D) Time is of the essence in the performance of and
compliance with each of the provisions and conditions of this
Agreement.
(E) Any communication, notice or demand of any kind whatsoever
which either party may be required or may desire to give to or serve
upon the other shall be in writing and hand delivered or sent by (i)
certified or registered United States mail, postage prepaid, return
receipt requested, or (ii) expedited prepaid delivery service, either
overnight delivery service of a nationally recognized courier,
commercial or United States Postal Service, with proof of attempted
delivery, or (iii) sent by facsimile transmission, if a fax number is
designated below, provided a copy is also sent by first-class mail,
addressed as follows:
If to Buyer: Windrose Medical Properties Trust
c/o Med Properties Management Group, L.L.C.
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: X.X. XxXxxx
Chief Manager
Telephone: (000) 000-0000
Fax: (000) 000-0000
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With a copy to: Bone Law, P.L.L.P.
Attn: Xxxxxx X. Xxxxxx, Esq.
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Sellers: CPSIEM, LLC and CPSIEE, LLC
c/o CB Xxxxxxx Xxxxx Corporate Partners, LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Company: LandAmerica Title Company
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Telephone: (213) 627-7070 ext. 106
Facsimile: (000) 000-0000
If to Title Company: Nevada Title Company
0000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Such address may be changed by any party in a written notice to the
other parties hereto in the manner provided for above. A notice shall
be deemed to have been delivered: in the case of hand delivery, at the
time of delivery; in the case of registered or certified mail, when
delivered or the first attempted delivery on a Business Day; in the
case of expedited prepaid delivery, upon the first attempted delivery
on a Business Day; or in the case of facsimile transmission, upon
receipt during customary business hours on a Business Day as evidenced
by confirmation, or if received after customary business hours, then on
the next Business Day. A party receiving a notice that does not comply
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with the technical requirements for notice under this Section may elect
to waive any deficiencies and treat the notice as having been properly
given.
(F) The parties agree to execute such instructions to Escrow
Company and Title Company and such other instruments and to do such
further acts as may be reasonably necessary to carry out the provisions
of this Agreement.
(G) The making, execution and delivery of this Agreement by
the parties hereto has been induced by no representations, statements,
warranties or agreements other than those expressly set forth herein.
(H) Wherever possible, each provision of this Agreement shall
be interpreted in such a manner as to be valid under applicable law,
but, if any provision of this Agreement shall be invalid or prohibited
thereunder, such invalidity or prohibition shall be construed as if
such invalid or prohibited provision had not been inserted herein and
shall not affect the remainder of such provision or the remaining
provisions of this Agreement.
(I) The language in all parts of this Agreement shall be in
all cases construed simply according to its fair meaning and not
strictly for or against any of the parties hereto. Section headings of
this Agreement are solely for convenience of reference and shall not
govern the interpretation of any of the provisions of this Agreement.
References to "Sections" are to Sections of this Agreement, unless
otherwise specifically provided.
(J) This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
(K) If any action is brought by either party against the other
party, relating to or arising out of this Agreement, the transaction
described herein or the enforcement hereof, the prevailing party shall
be entitled to recover from the other party reasonable attorneys' fees
and expenses incurred in connection with the prosecution or defense of
such action.
(L) This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and to their respective
transferees, successors, and assigns. Neither this Agreement nor any of
the rights or obligations of Sellers or Buyer hereunder shall be
transferred or assigned by Sellers or Buyer without the prior written
consent of the non-assigning party, except that Buyer may (i) assign
this Agreement to a single purpose entity controlled by Buyer or to an
operating partnership of which it is the general partner; and (ii)
assign its rights, but not obligations, in this Agreement to a
qualified intermediary, in order that the transaction contemplated by
this Agreement be part of a like kind exchange under Section 1031 of
the Internal Revenue Code of 1986, as amended.
(M) Exhibits A through E, inclusive, attached hereto are
incorporated herein by reference.
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(N) Notwithstanding anything to the contrary contained herein,
this Agreement shall not be deemed or construed to make the parties
hereto partners or joint venturers, it being the intention of the
parties to merely create the relationship of Seller and Buyer with
respect to the Properties to be conveyed as contemplated hereby.
(O) This Agreement shall not be recorded or filed in the
public land or other public records of any jurisdiction by either party
and any attempt to do so may be treated by the other party as a breach
of this Agreement.
(P) Intentionally omitted.
(Q) Sellers and Buyer agree that it is their specific intent
that no broker shall be a party to or a third party beneficiary of this
Agreement or the Escrow; and further that the consent of a broker shall
not be necessary to any agreement, amendment, or document with respect
to the transaction contemplated by this Agreement.
(R) If any of the dates specified in this Agreement shall fall
on a Saturday, a Sunday, or a holiday, then the date of such action
shall be deemed to be extended to the next Business Day.
(S) The provisions of this Agreement that contemplate
performance after the Closing and the obligations of the parties not
fully performed at the Closing shall survive the Closing and shall not
be deemed to be merged into or waived by the instruments of Closing.
[SIGNATURES ON NEXT PAGE]
-24-
SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT
(0000-0000 X. XXXXXXXXXX XXXX., 0000 X. XXXXXXX XXX., AND 888 S. RANCHO
DRIVE, LAS VEGAS, NEVADA)
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the
Effective Date.
SELLERS: CPSIEM, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx, Manager
CPSIEE, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx, Manager
BUYER: WINDROSE MEDICAL PROPERTIES TRUST,
a Maryland REIT
By: /s/ X.X. XxXxxx
---------------------------------
X.X. XxXxxx, Executive Vice President
-25-
EXHIBIT A-1
LEGAL DESCRIPTION
(0000-0000 XXXX XXXXXXXXXX XXXXXXXXX)
0000 X. XXXXXXXXXX XXXX, XXX XXXXX, XXXXX XXXXXX, XXXXXX
That portion of the west half of the southeast quarter of the southeast quarter
of section 32, township 20 south, range 61 east, M.D.B.& M., described as
follows:
Commencing at the southwest corner of the southeast quarter of the southeast
quarter of said section 32; thence north 00(degree)07'35" east a distance of
50.00 feet to a point on the northerly right-of-way line of Charleston Boulevard
(100.00 feet wide); thence along said northerly right-of-way line south
89(degree)39'20" east a distance of 336.61 feet to the point of beginning;
thence north 00(degree)25'19" east a distance of 280.03 feet; thence south
89(degree)39'20" east a distance of 107.10 feet to a point on the westerly
right-of-way line of Rancho Drive (width varies); thence along said westerly
right-of-way line south 00(degree)12'58" west a distance of 254.94 feet to the
beginning of a 25.00 foot radius curve, concave northwesterly having a central
angle of 90(degree)07'42"; thence southwesterly along said curve 39.33 feet to a
point on said northerly right-of-way line of Charleston Boulevard; thence along
said northerly right-of-way line north 89(degree)39'20" west, a distance of
78.92 feet to the point of beginning.
0000 X. XXXXXXXXXX XXXX, XXX XXXXX, XXXXX XXXXXX, XXXXXX.
That portion of the west half of the southeast quarter of the southeast quarter
of section 32, township 20 south, range 61 east, M.D.B.& M., described as
follows:
Commencing at the southwest corner of the southeast quarter of the southeast
quarter of said section 32; thence north 00(degree)07'35" east a distance of
50.00 feet to a point on the northerly right-of-way line of Charleston Boulevard
(100.00 feet wide); thence along said northerly right-of-way line south
89(degree)39'20" east a distance of 112.20 feet to the point of beginning;
thence north 00(degree)07'35" east a distance of 280.00 feet; thence south
89(degree)39'20" east a distance of 221.73 feet; thence south 00(degree)25'19"
east a distance of 280.03 feet to a point on said northerly right-of-way line of
Charleston Boulevard; thence along said northerly right-of-way line north
89(degree)39'20" west, a distance of 224.41 feet to the point of beginning.
-26-
EXHIBIT A-2
LEGAL DESCRIPTION
(4475 S. EASTERN AVENUE LAS VEGAS, XXXXX COUNTY, NEVADA)
Government lot sixty-four (64) lying within the southeast quarter of the
northeast quarter of section 23, township 21 south, range 61 east, M.D.B.& M:
Excepting the east 50 feet of said land as conveyed to the County of Xxxxx for
street and road purposes by that grant deed recorded September 18, 1956 in Book
172 as document no. 140648 of official records.
Further excepting therefrom the south 40 feet and the west 30 feet and those
certain spandrel areas in the southwest corner and the southeast corner as
conveyed to the County of Xxxxx by document no. 1298951 recorded January 9, 1981
in Book 1339 in the office of the County Recorder of Xxxxx County, Nevada.
-27-
EXHIBIT A-3
LEGAL DESCRIPTION
(888 S. RANCHO DRIVE, LAS VEGAS, XXXXX COUNTY, NEVADA)
That portion of the southeast quarter of the southeast quarter of section 32,
township 20 south, range 61 east, M.D.B.& M., described as follows:
Parcel three (3) as shown by map thereof in file 25 of Parcel Maps, page 25, in
the office of the County Recorder of Xxxxx County, Nevada.
-28-
EXHIBIT B
CERTAIN DOCUMENTS DELIVERED TO BUYER
000 X. XXXXXX XXXXX
1. Lease Agreement between CPSIEM, LLC (as Landlord) and Southwest Medical
Associates (as Tenant)
2. Lease Guaranty dated as of December 28th, 2000
3. Recommendation Letter dated December 13, 2000 and Level I Environmental
Site Assessment Report dated
December 12, 2000 from the National Assessment Corporation
4. Final Property Condition Report dated December 15, 2000
5. Recent Tax Notice
6. Operating Income Statements of prior owner
7. Owned Property Business Licensing listing from Sierra dated 11/07/00
with application and fee documents
8. Service Vendor - Proposal/Agreements
9. Certificate of Occupancy
10. Elevators/Kindred Equipment Operating Permit
11. Zoning Verification letter from Xxxxx Xxxxxxx-Xxxxxxx of the City of
Las Vegas dated December 12, 2000
12. Space Plan for Levels 1 & 2 dated 11-21-95
13. Cancellation of Overhang Easement recording document No. APN
139-32-802-019 and 139-32-802-020
14. Janitorial Service Contract dated January 11, 1999
15. License Agreement dated May 30, 1986
16. Agreement for Mutual Easement dated March 24, 1986
17. ALTA/ACSM Land Title Survey dated 1/4/2001
18. Tax xxxx for fiscal year 2000-2001
19. Construction Performance Bond No. 929180306
0000 X. XXXXXXXXXX XXXX.
1. Lease Agreement between CPSIEM, LLC and Southwest Medical Associates,
Inc.
2. Lease Guaranty dated December 28, 2000
3. Final Property Condition Report dated December 15, 2000
4. Recent Tax Notice
5. Operating Income Statements of prior owner
6. Commercial Sales Proposal/Agreement
Janitorial Service Contract
7. Zoning Verification Letter dated 12/8/2000 from the City of Las Vegas
8. Elevators/Kindred Equipment Operating Permit dated 7/27/2000
9. Business License dated 10/18/00
10. Certificate of Occupancy dated November 7, 1984
11. Owned Property, Business Licensing Doc's as of 11/07/00
12. Space Plans for 1st and 2nd Floors
13. Recommendation Letter dated 12/13/2000 and Level 1 Environmental Site
Assessment Report dated December 11, 2000
14. ALTA/ACSM Land Title Survey dated 1/4/2001
15. Tax xxxx for fiscal year 2000-2001
-29-
0000 X. XXXXXXXXXX XXXX.
1. Lease Agreement between CPSIEM, LLC and Southwest Medical Associates,
Inc. and Exhibit A
2. Lease Guaranty dated December 28, 2000
3. Final Property Condition Report dated December 15, 2000
4. Recent Tax Notice
5. Operating Income Statements of prior owner
6. Commercial Sales Proposal/Agreement
7. Janitorial Service Contract
8. Elevators/Kindred Equipment Operating Permit dated 7/27/2000
9. Business License dated 10/18/00
10. Certificate of Occupancy dated November 7, 1984
11. Owned Property, Business Licensing Doc's as of 11/07/00
12. Space Plans for 1st and 2nd Floors
13. Recommendation Letter dated 12/13/2000 and Level 1 Environmental Site
Assessment Report dated December 11, 2000
14. Reciprocal Parking Easement Agreement dated 10-21-88
15. Party Wall Agreement and Easement dated October 5, 1988
16. First Amendment to Party Wall Agreement and Easement dated December 28,
2000
17. First Amendment to Reciprocal Parking Agreement dated December 28, 2000
18. Third and Second Amendment to Lease Agreement dated 12-9-97
19. ALTA/ACSM Land Title Survey dated 1/4/2001
20. Tax xxxx for fiscal year 2000-2001
0000 X. XXXXXXX XXXXXX
1. Lease Agreement between CPSIEE, LLC and Southwest Medical Associates,
Inc.
2. Lease Guaranty dated 12/28/2000
3. Fiscal Year 2001 - 2002 Tax Xxxx
4. Commercial Sales Proposal/Agreement
5. Owned Property, Business Licensing Doc's as of 11/07/00
6. Tenant/Owner Expense Statements
7. Janitorial Service Contract dated 1/12/99
8. Certificate of Completion dated 11/12/97
9. Certificate of Occupancy dated 12/18/97
10. Xxxxxxxx Xxxxx Xxxxx xxx 0xx Xxxxx - 0xx Xxxxx
11. Xxxx of Sale dated 01/5/98
12. Letter from Xxxxx County Dept. of Comprehensive Planning dated
10/16/95; Reference: ZC-1470-95
13. Letter from Xxxxx County Dept. of Comprehensive Planning dated
12/7/00; Re: XX-0000-00, XXX 162-23-604-008
14. Grant of Easement dated 7/30/99
15. Grant of Easement for a Curb Return Driveway dated 1/16/97
16. Easement Agreement dated 2/11/97
17. Inter-Company Occupancy Agreement dated 6/1/00
18. Amended Inter-Company Occupancy Agreement dated 6/1/00
19. Property Condition Report dated December 15, 2000 prepared by Asset
Advisory Services, Inc.
20. Recommendation Letter dated December 13, 2000 and Level I Environmental
Site Assessment Report dated December 11, 2000
21. Architectural Plans (separate delivery)
And various notices from governmental agencies.
-30-
EXHIBIT C-1
TENANT ESTOPPEL CERTIFICATE
________________, 2002
Via Fax (_____________) and Regular Mail
_______________ ("Buyer")
_________________________
_________________________
Re: Lease Agreement (the "Lease") made as of December 28, 2000 by Southwest
Medical Associates, Inc., a Nevada corporation ("Tenant"), as tenant, and
________, LLC, a Delaware limited liability company ("Landlord"), as landlord,
covering the premises (the "Premises") located at ______________________, Las
Vegas, Nevada.
Dear Buyer:
Tenant understands that Buyer intends to purchase the Premises from Landlord and
is relying on this Tenant Estoppel in closing its purchase of the Premises. In
connection with the foregoing, Tenant does hereby certify to Buyer as follows:
1. The Lease is unmodified and in force and effect. There are no other
agreements in effect between Landlord and Tenant relating to the Premises in
effect as of the date of closing of Buyer's purchase of the Premises.
2. Basic Rent has been paid through and including ___________ 14, 2002.
3. There is no existing default by the Tenant in the payment of Basic Rent, nor
does there exist any default by the Tenant in the payment of any Additional Rent
beyond the applicable grace period, nor is there any other existing default or
Event of Default by Tenant or, to Tenant's knowledge, by Landlord.
4. To the knowledge of Tenant, there are no actions or proceedings pending
against the Premises before any governmental authority to condemn the Premises
or any portion thereof or any interest therein and no such actions or
proceedings have been threatened.
5. There is no material unrepaired damage to the Premises from fire or other
casualty.
Unless defined herein, all capitalized terms shall be defined as set forth in
the Lease.
-31-
IN WITNESS WHEREOF, Tenant has executed this Tenant Estoppel Certificate the
date first above written.
SOUTHWEST MEDICAL ASSOCIATES, INC., a Nevada corporation
By_________________________________
-00-
XXXXXXX X-0
XXXXXXXXX XXXXXXXX CERTIFICATE
________________, 2002
Via Fax (_____________) and Regular Mail
_______________ ("Buyer")
_________________________
_________________________
Re: Lease Guaranty (the "Lease Guaranty") made as of December 28, 2000 by Sierra
Health Services, Inc., a Nevada corporation ("Guarantor"), guaranteeing
obligations of Tenant under that certain Lease Agreement (the "Lease") made as
of December 28, 2000 by Southwest Medical Associates, Inc., a Nevada corporation
("Tenant"), as tenant, and _____________, LLC, a Delaware limited liability
company ("Landlord"), as landlord, covering the premises (the "Premises")
located at _________________________, Las Vegas, Nevada.
Dear Buyer:
Guarantor understands that Buyer intends to purchase the Premises from Landlord
and is relying on this Guarantor Estoppel in closing its purchase of the
Premises. In connection with the foregoing, Guarantor does hereby certify to
Buyer as follows:
1. The Lease Guaranty is unmodified and in force and effect; and, upon Buyer's
acquisition of the Premises, will remain in full force and effect and Buyer will
be the beneficiary thereof.
2. To Guarantor's knowledge, there are no existing facts or circumstances which
presently or with the giving of notice or passage of time, or both, would
negate, reduce or otherwise alter Guarantor's obligations under the Lease
Guaranty.
Unless defined herein, all capitalized terms shall be defined as set forth in
the Lease Guaranty.
IN WITNESS WHEREOF, Guarantor has executed this Guarantor Estoppel Certificate
the date first above written.
SIERRA HEALTH SERVICES, INC., a Nevada corporation
By:________________________________
Name:______________________________
Title:_____________________________
-33-
EXHIBIT D
ASSIGNMENT AND ASSUMPTION OF LEASE AND LEASE GUARANTY
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND LEASE GUARANTY
(the "Assignment") is made as of this ____ day of __________ 2002 by and between
___________, LLC, a Delaware limited liability company ("Assignor") and
________________________________ ("Assignee").
Assignor hereby assigns to Assignee the Landlord's interest in (a) that
certain Lease Agreement dated as of December 28, 2000 between Assignor, as
Landlord, and Southwest Medical Associates, Inc., a Nevada corporation, as
Tenant (the "Lease"), which Lease demises certain premises located at
________________, Las Vegas, Nevada, together with the premises therein
described, any improvements thereon and any appurtenances thereunto appertaining
and (b) that certain Lease Guaranty ("Lease Guaranty") made as of December 28,
2000 by Sierra Health Services, Inc., as Guarantor, in favor of Assignor, as
Landlord.
Assignee hereby accepts such assignment and assumes and agrees to
perform all of the covenants, terms, provisions and conditions of the Lease and
Lease Guaranty on the part of the Landlord to be performed therein arising after
the date of this Assignment.
Assignor hereby represents and warrants the following to Assignee: (i)
each of the Lease and Lease Guaranty is valid, in full force and effect, and is
not subject to any amendments or modifications; (ii) other than this Assignment
and assignments for the benefit of Assignor's lenders (which are being released
concurrently herewith), Assignor has not executed an assignment or pledge of the
Lease or Lease Guaranty or of its right, title and interest therein; and (iii)
Assignor has the authority to assign the Lease and Lease Guaranty and shall
defend the same against the lawful claim of all persons claiming by, through or
under Assignor, but not otherwise.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
Assignment as of the day and year first above written.
ASSIGNOR:
__________, LLC, A DELAWARE LIMITED LIABILITY COMPANY
By: ________________________________
Xxxxxx Xxxxx, Manager
ASSIGNEE:
By: ________________________________
-34-
EXHIBIT E
FORM OF WARRANT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM REASONABLY SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.
--------------------------------------------------------------------------------
NO. W-1 ___________ SHARES
WARRANT TO PURCHASE COMMON SHARESOF
WINDROSE MEDICAL PROPERTIES TRUST
Subject to the terms and conditions herein set forth, Windrose Medical
Properties Trust, a Maryland Real Estate Investment Trust (the "Company"), for
value received, hereby certifies that CB Xxxxxxx Xxxxx Corporate Partners, LLC,
a Delaware limited liability company, or its permitted registered assigns (the
"Registered Holder"), is entitled, to purchase from the Company, in whole or in
part, at any time, or from time to time, during the term of this Warrant (as set
forth in Section 5 below), _______ common shares (as adjusted from time to time
pursuant to the provisions of this Warrant) of the Company ("Common Stock"),
upon surrender of the Warrant at the principal office of the Company referred to
below and upon payment of the exercise price by wire transfer to the Company or
certified or cashiers check made to the order of the Company or as otherwise
provided below. The purchase price at which Common Stock may be purchased upon
exercise of this Warrant shall be $________ per share of Common Stock, as
adjusted pursuant to the provisions of this Warrant. The common shares
purchasable upon exercise of this Warrant and the exercise or purchase price per
share, as adjusted from time to time pursuant to the provisions of this Warrant,
are sometimes hereinafter referred to as the "Warrant Stock" and the "Exercise
Price," respectively.
1. EXERCISE.
(a) MANNER OF EXERCISE. This Warrant may be exercised by the
Registered Holder, in whole or in part, by surrendering this Warrant, with the
purchase/exercise form appended hereto as Exhibit A duly executed by such
Registered Holder or by such Registered Holder's duly authorized attorney, at
the principal office of the Company at 0000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000, facsimile number (000) 000-0000, or such other location
which shall at that time be the principal office of the Company, accompanied by
payment in full of the Exercise Price payable in respect of the number of shares
of Warrant Stock purchased upon such exercise. The Exercise Price may be paid by
cash, certified or cashiers check or by wire transfer to an account designated
in writing by the Company to the Registered Holder.
-35-
(b) EFFECTIVE TIME OF EXERCISE. To the extent permitted by
law, each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in Section 1(a) above. At
such time, the person or persons in whose name or names any certificates for
Warrant Stock shall be issuable upon such exercise in accordance with Section
1(d) below shall be deemed for all purposes to have become the holder or holders
of record of the Warrant Stock represented by such certificates.
(c) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner
provided above in Section 1(a), the Registered Holder may elect to receive
shares equal to the value of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with notice of such election on the purchase/exercise form appended
hereto as Exhibit A duly executed by such Registered Holder or such Registered
Holder's duly authorized attorney, in which event the Company shall issue to the
Registered Holder a number of shares of Common Stock computed using the
following formula:
X = Y (A - B)
---------
A
Where X = The number of shares of Common Stock to be issued to the
Registered Holder.
Y = The number of shares of Common Stock purchasable under
this Warrant, or if only a portion of the Warrant is
being exercised, the portion of the Warrant being
cancelled (at the date of such calculation).
A = The fair market value of one share of Common Stock (at the
date of such calculation).
B = The Exercise Price (as adjusted to the date of such
calculation).
(ii) For purposes of this Section 1(c), the fair market
value of one share of Common Stock on the date of calculation shall mean the
highest price per share which the Company could obtain on the date of
calculation from a willing buyer (not a current employee or director) for shares
of Common Stock sold by the Company, from authorized but unissued shares, as
determined in good faith by the Board of Directors, provided, however, that
where there exists a public market for the Company's Common Stock at the time of
such exercise, the fair market value per share shall be the average of the
closing bid and asked prices of the Common Stock quoted in the Over-The-Counter
Market Summary or the last reported sale price of the Common Stock or the
closing price quoted on the Nasdaq National Market or on any exchange on which
the Common Stock is listed, whichever is applicable, as published in the Western
Edition of The Wall Street Journal for the last five (5) trading days prior to
the date of determination of fair market value.
(d) DELIVERY TO HOLDER. Subject to the provisions of Section
3(a) below, if the Registered Holder so requests in writing at any time or from
time to time, the Company shall,
-36-
upon the exercise of this Warrant in whole or in part, immediately instruct the
Company's stock transfer agent to deliver via book entry (DTC transfer) to a
stock brokerage firm designated in writing by the Registered Holder, for such
account as the Registered Holder may designate, the shares of Warrant Stock to
which the Registered Holder is entitled. Subject to the provisions of Section
3(a) below, in the absence of a written request for such a book entry transfer,
as soon as practicable after the exercise of this Warrant in whole or in part,
and in any event within ten (10) days thereafter, the Company at its expense
will cause to be issued in the name of, and delivered to, the Registered Holder,
or as such Holder may direct.
(i) a certificate or certificates for the number of
shares of Warrant Stock to which such Registered Holder shall be entitled, and
(ii) in case such exercise is in part only, a new
warrant or warrants (dated the date hereof) of like tenor, calling in the
aggregate on the face or faces thereof for the number of shares of Warrant Stock
equal (without giving effect to any adjustment therein) to the number of such
shares called for on the face of this Warrant minus the number of such shares
purchased by the Registered Holder upon such exercise as provided in Section
1(a) above.
The Company shall pay all issue taxes in connection with the issuance and
delivery of the Warrant Stock. All shares of Warrant Stock will, upon issuance
by the Company in accordance with the terms of this Warrant, be validly issued,
fully paid and non-assessable, and free from all taxes and liens (except for any
that may be created by the Registered Holder) with respect to the issuance
thereof.
2. ADJUSTMENTS.
(a) STOCK SPLITS AND DIVIDENDS. If at any time during the term
of this Warrant the number of outstanding shares of the Company's Common Stock
is increased by a stock dividend payable in shares of the Company's Common Stock
(or in options to purchase or rights to subscribe for Common Stock, or
securities that are convertible into or exchangeable for Common Stock, or
options to purchase or rights to subscribe for such convertible or exchangeable
securities (collectively, "Common Stock Rights")) or by a subdivision or
split-up of shares of Common Stock, then the Exercise Price in effect
immediately prior to such subdivision or split-up or at the record date of such
dividend shall simultaneously with the effectiveness of such subdivision or
split-up or immediately after the record date of such dividend be
proportionately reduced. If at any time during the term of this Warrant the
number of outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall, simultaneously with the effectiveness of such combination, be
proportionately increased. When any adjustment is required to be made in the
Exercise Price, the number of shares of Warrant Stock purchasable upon the
exercise of this Warrant shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the exercise of this
Warrant immediately prior to such adjustment, multiplied by the Exercise Price
in effect immediately prior to such adjustment, by (ii) the Exercise Price in
effect immediately after such adjustment.
(b) RECLASSIFICATION, ETC. If the Company, at any time during
the term of this Warrant, by reclassification of securities or otherwise, shall
change any of the securities as to
-37-
which the purchase rights under this Warrant apply into the same or different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in Section 2(a); and in each such case, the terms of this
Section 2 shall be applicable to the shares of stock or other securities
properly receivable upon the exercise of this Warrant after such consummation.
(c) MERGER, SALE OF ASSETS, ETC. If, at any time while this
Warrant, or any portion hereof, remains outstanding and unexpired there shall be
(i) a reorganization (other than a combination, reclassification or subdivision
of shares otherwise provided for herein, (ii) a merger or consolidation of the
Company with or into another corporation in which the Company is not the
surviving entity, or a reverse triangular merger in which the Company is the
surviving entity but the shares of the Company's capital stock outstanding
immediately prior to the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise, or (iii) a sale
or transfer of the Company's properties and assets, as, or substantially as, an
entirety to any other person, then, as part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so that the
holder of this Warrant shall thereafter be entitled to receive upon exercise of
this Warrant, during the period specified herein and upon payment of the
Exercise Price then in effect, the number of shares of stock or other securities
or property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer if this Warrant had been
exercised immediately before such reorganization, merger, consolidation, sale or
transfer, all subject to further adjustment as provided in Section 2(a); and in
such case the terms of this Section 2 shall be applicable to the shares of stock
or other securities properly receivable upon exercise of this warrant after such
consummation.
(d) ADJUSTMENT CERTIFICATE. When any adjustment is required to
be made in the Warrant Stock or the Exercise Price pursuant to this Section 2,
the Company shall promptly, but in no event more than five (5) business days
after the occurrence of the event triggering the requirement of an adjustment,
mail to the Registered Holder at the address on the signature page of this
Warrant (or the most recent address provided in writing by the Registered Holder
to the Company) a certificate setting forth (i) a brief statement of the facts
requiring such adjustment, (ii) the Exercise Price after such adjustment and
(iii) the kind and amount of stock or other securities or property into which
this Warrant shall be exercisable after such adjustment.
3. TRANSFERS.
(a) UNREGISTERED SECURITY. Each holder of this Warrant
acknowledges that this Warrant and the Warrant Stock have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and agrees
not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose
of this Warrant without the prior written consent of the Company, which shall
not be unreasonably withheld or delayed, except that no consent shall be needed
to transfer this Warrant to one or more "affiliates" of or persons "affiliated"
with the Registered Holder who represents to the Company in writing that such
affiliate is an "accredited investor" as defined in
-38-
Rule 501(a) of Regulation D promulgated under the Securities Act, provided that
if the Company has a reasonable basis to doubt the accuracy or truthfulness of
this representation, it may by notice promptly (but not more than 10 days after
the Company's receipt of the representation) given to the Registered Holder or
the relevant affiliate require additional reasonable evidence as to the status
of the affiliate or affiliated person as an accredited investor. For the
purposes of this Warrant, an "affiliate" or person "affiliated" with a specific
person, is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with
the person specified, and in the case of a limited liability company shall also
include the members of the limited liability company.
Each holder of this Warrant further agrees not to sell,
pledge, distribute, offer for sale, transfer or otherwise dispose of this
Warrant or any Warrant Stock issued upon its exercise in the absence of (i) an
effective registration statement under the Act as to this Warrant or such
Warrant Stock and registration or qualification of this Warrant or such Warrant
Stock under any applicable U.S. federal or state securities law then in effect
or (ii) an opinion of counsel, in a form reasonably satisfactory to the Company,
that such registration and qualification are not required. Each certificate or
other instrument for Warrant Stock issued upon the exercise of this Warrant
shall bear a legend substantially to the foregoing effect.
(b) TRANSFERABILITY. Upon any transfer of this Warrant as
permitted hereunder, the Company will, at its expense, promptly issue to the
transferee (and to the transferor, in the case of a transfer of the Warrant in
part) a new Warrant (showing in each case the name of the appropriate Registered
Holder on the face of each new Warrant) for the number of shares of Warrant
Stock as to which the Warrant was transferred (or in the case of the transferor,
retained).
(c) WARRANT REGISTER. The Company will maintain a register
containing the names and addresses of the Registered Holders of this Warrant.
Until any transfer of this Warrant is made in the warrant register, the Company
may treat the Registered Holder of this Warrant as the absolute owner hereof for
all purposes; provided, however, that if this Warrant is properly assigned in
blank, the Company may (but shall not be required to) treat the bearer hereof as
the absolute owner hereof for all purposes, notwithstanding any notice to the
contrary. Any Registered Holder may change such Registered Holder's address as
shown on the warrant register by written notice to the Company requesting such
change.
4. NO STOCKHOLDER RIGHTS. This Warrant shall not entitle its
holder to any of the rights of a stockholder of the Company nor shall it impose
any liabilities on the holder to purchase any securities whether such
liabilities are asserted by the Company or by creditors or stockholders of the
Company or otherwise.
5. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable in whole or in part, at any time, or
from time to time, during the term commencing on the closing of the sale and
issuance of Common Stock of the Company in the Company's initial public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "IPO Closing") and ending at 5:00 p.m., Eastern Standard
Time on the second anniversary of such closing.
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6. NOTICES OF CERTAIN TRANSACTIONS. In case:
(a) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution (other than a normal cash dividend),
or to receive any right to subscribe for or purchase any shares of stock of any
class or any other securities, or to receive any other right, to subscribe for
or purchase any shares of stock of any class or any other securities, or to
receive any other right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company, any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the surviving entity), or any transfer of all or substantially all of the
assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon such reorganization, reclassification, consolidation,
merger, transfer, dissolution, liquidation or winding-up) are to be determined.
Such notice shall be mailed at least ten (10) days prior to the record date or
effective date for the event specified in such notice.
7. RESERVATION OF STOCK. The Company will at all times reserve
and keep available, solely for the issuance and delivery upon the exercise of
this Warrant, such shares of Warrant Stock and other stock, securities and
property, as from time to time shall be issuable upon the exercise of this
Warrant.
8. REGISTRATION. The Company grants to the Registered Holder
registration rights with respect to the Warrant Stock as follows:
8.1 If at any time after the IPO Closing the Company files a
registration statement with the Securities and Exchange Commission (the
"Commission") providing for the registration of any of the Common Stock for sale
or resale to the public for the account of one or more security holders, the
Company (i) will promptly give the Registered Holder written notice thereof, and
(ii) will include in such registration statement at no charge to the Registered
Holder the registration of the Warrant Stock for resale by the Registered Holder
to the public. The Registered Holder will cooperate with the Company to provide
the Company and its counsel or accountants such information respecting the
Registered Holder as may be required to be included in the registration
statement.
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8.2 In any event, if a registration statement covering the
Warrant Stock shall not otherwise have been filed by the Company with the
Commission, then the Company will, within twelve months after the IPO Closing,
cause such a registration statement (covering the Warrant Stock) to be filed
with the Commission and use its best efforts to cause such registration
statement to become effective.
8.3 The Company shall keep any registration statement under
this Section 8, as well as each and any state securities registration or
qualification under this Section 8, effective until the earlier of (i) all the
Warrant Stock has been resold by the Registered Holder or (ii) all the Warrant
Stock may immediately be sold by the Registered Holder during any ninety (90)
day period in accordance with Rule 144 promulgated under the Securities Act or
in accordance with any similar successor provision.
9. PAYMENT OF TAXES. The Company shall pay all documentary stamp
taxes attributable to the initial issuance of Warrant Stock upon any full or
partial exercise of this Warrant, provided, however, that the holder shall be
required to pay any and all taxes that may be payable in respect of any transfer
involved in the issuance of any certificate in a name other than that of the
Registered Holder of the Warrant as reflected on the books and records of the
Company.
10. EXCHANGE OF WARRANTS. Upon the surrender by the Registered
Holder of any Warrant, properly endorsed, to the Company at the principal office
of the Company, the Company will, subject to the provisions of Section 3 hereof,
issue and deliver to or upon the order of such Holder, at the Company's expense,
a new Warrant of like tenor, in the name of such Registered Holder or as such
Registered Holder (upon payment by such Registered Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock called for on the face or faces
of the Warrant or Warrants so surrendered.
11. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company, at the Registered Holder's expense,
will issue, in lieu thereof, a new Warrant of like tenor.
12. NOTICES. Any notice required or permitted by this Warrant
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid,
addressed (a) if to the Registered Holder, to the address of the Registered
Holder set forth on the signature page hereof or most recently furnished in
writing by the Registered Holder to the Company and (b) if to the Company, to
the address set forth below on the signature page hereof or most recently
furnished in writing by the Company to the Registered Holder.
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13. NO RIGHTS AS SHAREHOLDER. Until the exercise of this Warrant,
the Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a shareholder of the Company.
14. NO FRACTIONAL SHARES. No fractional shares of Common Stock
will be issued in connection with any exercise hereunder. In lieu of any
fractional shares which would otherwise be issuable, the Company shall pay cash
equal to the product of such fraction multiplied by the fair market value of one
share of Common Stock on the date of exercise, as determined in good faith by
the Company's Board of Directors.
15. AMENDMENT OR WAIVER. Any term of this Warrant may be amended
or waived only by an instrument in writing signed by the party against which
enforcement of the amendment or waiver is sought.
16. HEADINGS. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
17. GOVERNING LAW. This Warrant shall be governed, construed and
interpreted in accordance with the laws of the State of Maryland, without giving
effect to principles of conflicts of law.
18. SEVERABILITY. If any provision of this Warrant is held
unenforceable by a court of competent jurisdiction, it shall be severed from
this Warrant and the other provisions of this Warrant shall remain in effect.
The parties shall promptly incorporate into the Warrant a provision which they
in good faith believe is enforceable and which as nearly as possible gives
effect to the intent reflected by the severed provision.
19. ATTORNEY FEES. If any action is brought by the Registered
Holder against the Company to enforce the Company's obligations and/or the
Registered Holder's rights under this Warrant, the prevailing party in such
action shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Warrant, including without limitation, such reasonable fees and expenses
of attorneys, which shall include, without limitation, all fees, costs and
expenses of appeals.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused its duly authorized
representative to execute and deliver this Warrant as of the _______ day of
_________________, 2002.
WINDROSE MEDICAL PROPERTIES TRUST
By:
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President and Chief Operating Officer
Address:
-----------------------
-----------------------
Fax Number:
-----------------------
Agreed and Accepted:
REGISTERED XXXXXX
XX Xxxxxxx Xxxxx Corporate Partners, LLC
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
-----------------------------
-------------------------------------
Fax Number:
-------------------------
-43-
EXHIBIT A
PURCHASE/EXERCISE FORM
To: Windrose Medical Properties Trust
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby irrevocably elects to (a) purchase _____ shares of the Common
Stock covered by such Warrant and herewith makes payment of $ _________,
representing the full Exercise Price for such shares at the price per share
provided for in such Warrant or (b) exercise such Warrant for _______ shares
purchasable under the Warrant pursuant to the Net Issue Exercise provisions of
Section 1(c) of such Warrant.
Signature:
---------------------------------
Name (print):
------------------------------
Title (if applic.)
-------------------------
Company (if applic.):
----------------------
Dated:
-------------------------------------
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________________________________ hereby
sells, assigns and transfers all of the rights of the undersigned under the
attached Warrant with respect to the number of shares of Common Stock covered
thereby set forth below, to:
NAME OF ASSIGNEE ADDRESS/FAX NUMBER NO. OF SHARES
---------------- ------------------ -------------
Assignor:
-------------------------------------
Dated: Signature:
---------------------- ------------------------------------
(signature must conform in all respects
to the name of the Registered Holder as
set forth on the face of the Warrant)
Witness:
--------------------------------------
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