AGREEMENT OF SALE AND PURCHASE
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BY AND BETWEEN
RHCI SAN ANTONIO, INC.,
a Delaware corporation
("SEllER")
CAPSTONE CAPITAL OF SAN ANTONIO, LTD.,
d/b/a CAHABA OF SAN ANTONIO, LTD.,
an Alabama limited partnership
("PURCHASER")
April 12, 1995
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS................................................... 1
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ARTICLE II
AGREEMENTS To SELL PURCHASE AND LEASE......................... 7
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2.1 AGREEMENT TO SELL AND PURCHASE ........................ 7
2.2 AGREEMENT TO LEASE..................................... 7
ARTICLE III
PURCHASE PRICE................................................ 7
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3.1 PAYMENT OF PURCHASE PRICE.............................. 7
3.2 INDEPENDENT CONSIDERATION.............................. 7
ARTICLE IV
lTEMS TO BE FURNISHED TO PURCHASER BY SELLER.................. 7
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4.1 DUE DILIGENCE MATERIALS................................ 7
4.2 DUE DILIGENCE REVIEW................................... 8
ARTICLE V
TITLE AND SURVEY ............................................. 9
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5.1 TITLE COMMITMENT, EXCEPTION DOCUMENTS AND SURVEY....... 9
5.2 REVIEW PERIOD.......................................... 9
5.3 ADDITIONAL EXCEPTIONS.................................. 9
ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS......... 9
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6.l REPRESENTATIONS AND WARRANTIES OF SELLER............... 9
6.2 INDEMNITY OF SELLER.................................... 13
6.3 ....................................................... 14
6.4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. 14
ARTICLE VII
CONDITIONS TO THE PURCHASER'S AND SELLER'S OBLIGATIONS........ 15
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7.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS.............. 15
7.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS....... 16
7.3 CONDITIONS TO SELLER'S OBLIGATIONS..................... 17
7.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS.......... 17
ARTICLE VIII
PROVISIONS WITH RESPECT TO THE CLOSING........................ 18
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8.1 SELLER'S CLOSING OBLIGATIONS........................... 18
8.2 PURCHASER'S CLOSING OBLIGATIONS........................ 19
ARTICLE IX
EXPENSES OF CLOSING.......................................... 19
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9.1 ADJUSTMENTS........................................... 19
9.2 CLOSING COSTS......................................... 19
ARTICLE X
DEFAULT AND REMEDIES......................................... 19
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l0.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES................ 19
l0.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES................ 20
ARTICLE XI
MISCELLANEOUS................................................ 20
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11.1 SURVIVAL.............................................. 20
11.2 NOTICES............................................... 21
11.3 ENTIRE AGREEMENT; MODIFICATIONS....................... 22
11.4 APPLICABLE LAW........................................ 22
11.5 CAPTIONS.............................................. 22
11.6 BINDING EFFECT........................................ 22
11.7 EXTENSION OF DATES.................................... 23
11.8 TIME IS OF THE ESSENCE................................ 23
11.9 WAIVER OF CONDITIONS.................................. 23
11.10 BROKERS............................................... 23
11.11 RISK OF LOSS.......................................... 23
11.12 NO ASSUMPTION OF LIABILITIES.......................... 23
11.13 COUNTERPARTS.......................................... 24
LIST OF EXHIBITS
Exhibit A - Real Property Description
Exhibit B - Xxxx of Sale and Assignment
Exhibit C - Certificate of Non-Foreign Status
Exhibit D - Closing Certificate
Exhibit E - Special Warranty Deed
Exhibit F - Guaranty
Exhibit G - Lease
Exhibit H - Permitted Exceptions
Exhibit I - [Intentionally Left Blank]
Exhibit J - Allocation of Purchase Price
Exhibit K - Survey Certificate
Exhibit L - Personal Property
Disclosure Schedule
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement") dated as of April 12,
1995, is made and entered into by and between RHCI SAN ANTONIO, INC., a Delaware
corporation (hereinafter referred to as "Seller"), and CAPSTONE CAPITAL OF SAN
ANTONIO, LTD., D/B/A CAHABA OF SAN ANTONIO, LTD., an Alabama limited
partnership, and/or its assigns (hereinafter referred to as "Purchaser"). Seller
and Purchaser are sometimes collectively referred to herein as the "Parties" and
each of the Parties is sometimes singularly referred to herein as a "Party".
WHEREAS, Seller is the owner of the Property (as hereinafter defined),
consisting of certain real property and improvements thereon located at 14747
Xxxxx Xxxxxxxxxxx Road, San Antonio, Bexar County, Texas, consisting of five
one-story buildings comprising Mission Vista Hospital and containing in the
aggregate approximately 39,786 gross square feet, more or less, which together
with all related land and parking areas total approximately six acres, as more
particularly described on Exhibit A attached hereto and made a part hereof for
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all purposes by this reference; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property, and simultaneously therewith, to enter into a lease transaction
pursuant to which Purchaser shall lease to Seller, and Seller shall lease from
Purchaser, the Property.
NOW, THEREFORE, in consideration of the sum of $10.00, the mutual covenants
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
ARTICLE I
DEFINITIIONS
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As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"Xxxx of Sale" means a xxxx or bills of sale in the form attached as
Exhibit B hereto, and sufficient to transfer to Purchaser all of the items set
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forth therein.
"Business Agreement" means any management agreement, service contract,
easement, covenant, restriction or other agreement relating to the ownership or
maintenance of the Property pursuant to which Seller has agreed or may be
obligated to pay in excess of $50,000 in any period of twelve consecutive
calendar months.
"Business Day(s)" means calendar days other than Saturdays, Sundays and
legal holidays.
"Certificate of Non-Foreign Status" means a certificate dated as of the
Closing Date, addressed to Purchaser and duly executed by Seller, in the form of
Exhibit C attached hereto.
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"Claim" means any obligation, liability, lien, encumbrance, loss, damage,
cost, expense or claim, including without limitation any claim for damage to
property or injury to or death of any person or persons.
"Closing" means the consummation of the sale and purchase provided for
herein, to be held at the offices of Sirote & Permutt, P.C., 0000 Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx or such other place as the Parties may
mutually agree.
"Closing Certificate" means a certificate in the form of Exhibit D wherein
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Seller shall represent that the representations and warranties of Seller
contained in this Agreement are true and correct as of the Closing Date as if
made on and as of the Closing Date, except with respect to those matters that
may be disclosed in writing to and accepted by Purchaser prior to the Closing
Date.
"Closing Date" means April 12, 1995.
"Closing Fee" means a closing fee payable by Seller to Purchaser at Closing
in the amount of $39,500.00, to be deducted from the proceeds of sale.
"Deed" means a special (limited) warranty deed substantially in the form of
Exhibit E attached hereto (as the same may be modified to comply with local law
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and custom), executed by Seller, as grantor, in favor of Purchaser, as grantee,
conveying the Land and Improvements to Purchaser, subject only to the Permitted
Exceptions.
"Disclosure Schedule" has the meaning set forth in Section 6.1(v).
"Due Diligence Materials" means the information to be provided by Seller to
Purchaser pursuant to the provisions of Section 4.1 hereof.
"Effective Date" means April 12, 1995.
"Engineering Documents" means all site plans, surveys, soil and substrata
studies, architectural drawings, plans and specifications, engineering plans and
studies, floor plans, landscape plans, and other plans and studies that relate
to the Land, the Improvements or the Fixtures and are in Seller's possession or
control.
"Exception Documents" means true, correct and legible copies of each
document listed as an exception to title on the Title Commitment.
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"Fixtures" means all permanently affixed equipment, machinery, fixtures,
and other items of real and/or personal property, including all components
thereof, now and hereafter located in, on or used in connection with, and
permanently affixed to or incorporated into the Improvements, including without
limitation all furnaces, boilers, heaters, electrical equipment, heating,
plumbing, lighting, ventilating, refrigerating, incineration, air and water
pollution control, waste disposal, air-cooling and air-conditioning systems and
apparatus, sprinkler systems and fire and theft protection equipment, built-in
vacuum, cable transmission, oxygen and similar systems, all of which, to the
greatest extent permitted by law, are hereby deemed by the Parties hereto to
constitute real estate, together with all replacements, modifications,
alterations and additions thereto, but specifically excluding any Tenant's trade
fixtures or other fixtures or equipment that a Tenant is permitted to remove
pursuant to the applicable Tenant Lease.
"Guarantor" means Ramsay Health Care, Inc., a Delaware corporation, which
is the l00% owner of all of the issued and outstanding stock of Seller.
"Guaranty" means a guaranty of the obligations of Seller under the Lease in
substantially the form of Exhibit F attached hereto, executed by the Guarantor.
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"Hazardous Materials" means any substance, including without limitation
asbestos or any substance containing asbestos and deemed hazardous under any
Hazardous Materials Law, the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, medical waste,
chemicals, pollutants, effluents, contaminants, emissions or any related or
other materials and items included in the definition of hazardous or toxic
wastes, materials or substances under any Hazardous Materials Law.
"Hazardous Materials Law" means any law, regulation or ordinance relating
to environmental conditions, medical waste and industrial hygiene, including
without limitation the Resource Conservation and Recovery Act of 1976 ("RCRA"),
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986 ("XXXX"), the Hazardous Materials Transportation Act, the Federal Water
Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic
Substances Control Act, the Safe Drinking Water Act, and all similar federal,
state and local environmental statutes, ordinances and the regulations, orders,
or decrees now or hereafter promulgated thereunder.
"Indebtedness" with respect to Seller or Guarantor means: (i) any debt (a)
for borrowed money or (b) evidenced by a bond, note, debenture or similar
instrument (including purchase money obligations and accounts payable and other
obligations created or assumed in the course of business in connection with the
obtaining of materials or services) given in connection with the acquisition of
any business, property or assets, whether by purchase, merger, consolidation or
otherwise, or (c) which is a direct or indirect obligation which arises as a
result of banker's acceptances or bank letters of credit issued
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to secure obligations of such person, or to secure the payment of bonds issued
for the benefit of such person, whether contingent or otherwise; (ii) any debt
of others described in the preceding clause (i) which such person has guaranteed
or for which it is otherwise liable; (iii) the obligation of such person as
lessee under any lease of property which is (a) reflected on such person's
balance sheet as a capitalized lease or (b) an operating lease; and (iv) any
deferral, amendment, renewal, extension, supplement or refunding of any
liability of the kind described in any of the preceding clauses (i), (ii) and
(iii).
"Independent Consideration" means the sum of $100.00.
"Improvements" means all buildings, structures, Fixtures and other
improvements of every kind now or on the Closing Date located on the Land,
including without limitation all alleyways, connecting tunnels, crosswalks,
sidewalks, landscaping, parking lots and structures, roads, drainage and all
above-ground and underground utility structures, equipment systems that
constitute Fixtures and other so-called "infrastructure" improvements.
"Intangible Property" means all intangible property or any interest therein
now or on the Closing Date owned or held by Seller in connection with the Land,
the Improvements or the Fixtures, including without limitation all water rights
and reservations, zoning rights and warranties related to the Land, the
Improvements or the Fixtures, or any part thereof, provided "Intangible
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Property" shall not include the general corporate trademarks, service marks,
logos or insignia or books and records of Seller.
"Land" means the real property more particularly described on Exhibit A
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attached hereto and made a part hereof, together with all covenants, licenses,
privileges and benefits thereto belonging, and any easements, rights-of-way,
rights of ingress or egress or other interests of Seller in, on, or to any land,
highway, street, road or avenue, open or proposed, in, on, across, in front of,
abutting or adjoining such real property including without limitation all strips
and gores adjacent to or lying between such real property and any adjacent real
property.
"Laws" means all federal, state and local laws, moratoria, initiatives,
referenda, ordinances, rules, regulations, standards, orders and other
governmental requirements, including without limitation those relating to the
environment, health and safety, or disabled or handicapped persons.
"Lease" means a lease agreement in the form set forth on Exhibit G attached
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hereto and made a part hereof, which shall be executed and delivered by Seller
to Purchaser at the Closing, pursuant to the terms of which Purchaser shall
lease the Property to Seller following the Closing.
"Party" and "Parties" have the meanings set forth in the preamble to this
Agreement.
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"Permits" means all permits, licenses, approvals, entitlements,
notifications, determinations and other governmental and quasi-governmental
authorizations, including without limitation certificates of occupancy, required
in connection with the ownership, planning, development, construction,
maintenance, use or operation of the Property (other than such items related
solely to the conduct by Seller of its business on the Property of Seller's
other property or assets). As used herein, "quasi-governmental" shall include
the providers of all utility services to the Property.
"Permitted Exceptions" means, exclusively, the exceptions listed on Exhibit
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H hereto.
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"Personal Property" means, exclusively, the personal property listed in
Exhibit L hereto.
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"Property" means, collectively, the Land and all rights, titles, and
appurtenant interests, the Improvements, the Fixtures, the Intangible Property,
the Warranties, the Engineering Documents and the Personal Property. As used in
the foregoing, "appurtenant interests" shall mean those interests which pass by
operation of law with the conveyance of the fee simple- estate in the Land and
Improvements. The parties agree that no Tenant Leases are being assigned to or
assumed by Purchaser pursuant to this Agreement and that Lessor shall have no
responsibilities under or with respect to any existing Tenant Leases.
"Purchase Price" means an amount equal to $3,950,000.00.
"Real Property" means the Land, the Improvements and the Fixtures.
"Review Period" has the meaning set forth in Section 5.2.
"Search Reports" means the initial reports of searches made of the Uniform
Commercial Code Records of the County in which the Property is located, and of
the office of the Secretary of State of the State in which the Property is
located, which searches shall reflect that none of the Property is encumbered by
liens. The Search Reports shall be updated, at Seller's expense, at or within
one week prior to Closing.
"Survey" means a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in which
the Land is located acceptable to Purchaser, which shall: (a) include a legal
description of the Land by metes and bounds (which shall include a reference to
the recorded plat, if any), and a computation of the area comprising the Land in
both acre, gross square feet and net square feet (to the nearest one-hundredth
of said respective measurement); (b) accurately (upon Seller's belief, without
inquiry) show the location on the Land of all improvements, building and set-
back lines, fences, evidence of abandoned fences, ponds, creeks, streams,
rivers, officially designated l00-year flood plains and flood prone areas,
canals, ditches, easements, roads, rights-of-way and encroachments; (c) be
certified to the Purchaser, the Title Company, and any third-party lender
designated by Purchaser pursuant to a certification in substantially the
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form of Exhibit K; (d) legibly identify any and all recorded matters shown on
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the Title Commitment or on said survey by appropriate volume and page recording
references and the survey shall show the location of all adjoining streets; and
(e) be satisfactory to the Title Company so as to permit it to amend the
standard exception for area and boundaries in the Title Policy.
"Tenant" means the lessees or tenants under the Tenant Leases, if any.
"Tenant Leases" means all leases, subleases and other rental agreements, if
any (written or verbal, now or hereafter in effect) that grant a possessory
interest in and to any space in the Improvements or that otherwise have rights
with regard to the use of the Land or Improvements.
"Title Commitment" means a current commitment issued by the Title Company
to the Purchaser pursuant to the terms of which the Title Company shall commit
to issue the Title Policy to Purchaser in accordance with the provisions of this
Agreement, and reflecting all matters which would be listed as exceptions to
coverage on the Title Policy.
"Title Company" means Xxxxxxx Title Guaranty Corporation, whose address is
00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx.
"Title Policy" means an ALTA Extended Coverage Owner's Policy of Title
Insurance (1970 Form B - l990 revision), together with such endorsements thereto
as are reasonably and customarily required by institutional purchasers of real
property similar to the Property, with liability in the amount of the Purchase
Price, dated as of the Closing Date, issued by the Title Company, insuring title
to the fee interest in the Real Property in Purchaser, subject only to the
Permitted Exceptions and to the standard printed exceptions included in the ALTA
standard form owner's extended coverage policy of title insurance, with the
following modifications: (a) the exception for areas and boundaries shall be
deleted; (b) the exception for ad valorem taxes shall reflect only taxes for the
current and subsequent years; (c) any exception as to parties in possession
shall be limited to rights of tenants in possession, as tenants only, pursuant
to the Lease and the Tenant Leases; (d) there shall be no general exception for
visible and apparent easements or roads and highways or similar items (with any
exception for visible and apparent easements or roads and highways or similar
items to be specifically referenced to and shown on the Survey and also
identified by applicable recording information); and (e) all other exceptions
shall be modified or endorsed in a manner reasonably acceptable to Purchaser.
"Warranties" means all warranties, representations and guaranties with
respect to the Property, whether express or implied, which Seller now holds or
under which Seller is the beneficiary (other than such items related solely to
the conduct by Seller of its business on the Property or Seller's other property
or assets).
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ARTICLE II
AGREEMENTS TO SELL PURCHASE AND LEASE
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2.1 AGREEMENT TO SELL AND PURCHASE. Effective as of the Closing Date,
Seller shall sell, convey, assign, transfer and deliver to Purchaser and
Purchaser shall purchase, acquire and accept from Seller, the Property, for the
Purchase Price and subject to the terms and conditions of this Agreement. To the
extent permitted or required by law, Seller shall assign to Purchaser all of
Seller's right, title and interest in and to the Permits.
2.2 AGREEMENT TO LEASE. Effective as of the Closing Date, and subject to
performance by the Parties of the terms and provisions of this Agreement,
Purchaser shall lease to Seller and Seller shall lease from Purchaser, the
Property at the rental and upon the terms and conditions set forth in the Lease.
ARTICLE III
PURCHASE PRICE
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3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by
Purchaser delivering to the Seller at the Closing a wire transfer or other
immediately available funds payable to the order of the Seller in the amount of
the Purchase Price, subject to adjustment as provided in Article IX hereof.
3.2 INDEPENDENT CONSIDERATION. Within three Business Days following the
Effective Date, Purchaser shall deliver to the Title Company, in funds
immediately forfeitable to Seller, the Independent Consideration, as independent
consideration for any option granted to Purchaser by Seller herein, and based
upon such consideration and the mutual covenants of Seller and Purchaser
contained herein, Seller hereby agrees that any such option granted to Purchaser
is irrevocable and Seller shall not terminate said option without the prior
written consent of Purchaser, except as may be expressly provided for herein.
ARTICLE IV
ITEMS TO BE FURNISHED TO PURCHASER BY SELLER
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4.1 DUE DILIGENCE MATERIALS. Within l5 days after the Effective Date,
Seller shall deliver to Purchaser or make available to Purchaser at the Property
for its review the following items:
(a) True, correct, complete and legible copies of all Tenant Leases,
Business Agreements, Warranties, Permits, and Engineering Documents;
(b) A true, correct, complete and legible rent roll of all existing
Tenant Leases, if any, setting forth with respect to each of the Tenant Leases:
(i) the premises covered; ( ii) the date of such Tenant Lease and all amendments
and modifications thereto; (iii) the
7
name of the Tenant, licensee or occupant; (iv) the term, including specification
of the commencement date and the termination date; (v) the rents; (vi) the
nature and amount of the security deposits thereunder, if any; (vii) options to
renew or extend contained in any of the Tenant Leases; and (viii) the status of
Tenant improvements to be performed by Seller; and
(c) True, correct, complete and legible copies of the following items:
(i) tax statements or assessments for all real estate and personal
property taxes assessed against the Property for the current and the prior
two calendar years;
(ii) all existing fire and extended coverage insurance policies and
any other insurance policies pertaining to the Property;
(iii) all instruments evidencing, governing or securing the payment of
any loans secured by the Property or related thereto;
(iv) unaudited balance sheets and income statements of the Seller for
its fiscal years ending in 1993 and 1994, and unaudited quarterly balance
sheets and income statements for its fiscal quarters ending in September
and December of 1994;
(v) all environmental studies or impact reports relating to the
Property in possession or control of Seller, if any, and any approvals,
conditions, orders or declarations issued by any governmental authority
relating thereto or to any environmental matters (such studies and reports
to include, but not be limited to, reports indicating whether the Property
is or has been contaminated by Hazardous Materials); and
(vi) all litigation files, if any, with respect to any pending
litigation and claim files for any claims made or threatened, the outcome
of which might have a material adverse effect on the Property or the use
and operation of the Property.
4.2 DUE DILIGENCE REVIEW. During the Review Period Purchaser shall be
entitled to review the Due Diligence Materials delivered or made available by
Seller to Purchaser pursuant to the provisions of Section 4.1 above. If
Purchaser shall, for any reason in Purchaser's sole discretion, disapprove or be
dissatisfied with any aspect of such information, or the Property, then
Purchaser shall be entitled to terminate this Agreement by giving written notice
thereof to Seller on or before the expiration of the Review Period, whereupon
this Agreement shall automatically be rendered null and void, all moneys which
have been delivered by Purchaser to Seller or the Title Company (other than the
Independent Consideration) shall be immediately returned to Purchaser and
thereafter neither Party shall have any further obligations or liabilities to
the other hereunder. Alternatively, Purchaser may give written notice setting
forth any defect, deficiency or encumbrance and specify a
8
time within which Seller may remedy or cure such matter (before or after the
expiration of the Review Period). If any defect, deficiency or encumbrance, so
noticed, is not satisfied or resolved to the satisfaction of Purchaser, in
Purchaser's sole discretion, within the time period specified in such written
notice, this Agreement shall automatically terminate as provided in this
section. If no such notice is timely given, then Purchaser shall be deemed to
have waived its right to so terminate. Purchaser shall treat the Due Diligence
Materials as confidential and shall use them solely for the purpose of
evaluating the Property. If this Agreement is terminated, Purchaser shall
promptly redeliver to Seller all Due Diligence Materials.
ARTICLE V
TITLE AND SURVEY
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5.1 TITLE COMMITMENT, EXCEPTION DOCUMENTS AND SURVEY. Within 15 days after
the Effective Date, Seller shall deliver or cause to be delivered to Purchaser
the Title Commitment, Exception Documents, Survey, and Search Reports.
5.2 REVIEW PERIOD. [Intentionally left blank.]
5.3 ADDITIONAL EXCEPTIONS. [Intentionally left blank.]
ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
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6.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to enter
into this Agreement and to purchase the Property, Seller represents and warrants
to Purchaser, to the best of its knowledge, as follows:
(a) Pursuant to Section 5.2 hereof, Seller has and at the Closing Seller
will have, and will convey, transfer and assign to Purchaser, good, marketable,
fee simple and insurable title to the Land, free and clear of any deeds of
mortgages, liens, encumbrances, leases, tenancies other than the Tenants or
Tenant Leases, licenses, chattel mortgages, conditional sales agreements,
security interests, covenants, conditions, restrictions, judgments, rights-of-
way, easements, encroachments and any other matters affecting title or use of
the Property, except for the Permitted Exceptions.
(b) Seller has duly and validly authorized and executed this Agreement and
has right, title, power and authority to enter into this Agreement and, at
Closing, to consummate the actions provided for herein, and the joinder of no
person or entity will be necessary to convey the Property fully and completely
to Purchaser at Closing. The execution by Seller of this Agreement and the
consummation by Seller of the transactions contemplated hereby do not, and at
the Closing will not (i) result in a breach of any of the terms or provisions
of, or constitute a default or a condition which upon notice or lapse of time or
both would
9
ripen into a default under any indenture, agreement, instrument or obligation to
which Seller is a party or by which Seller or the Property or any portion
thereof is bound, or (ii) constitute a violation of any order, rule or
regulation of any court or of any federal or state or municipal regulatory body
or administrative agency or other governmental body having jurisdiction over
Seller or any portion of the Property.
(c) There are no adverse or other parties in possession of the Property or
of any part thereof except Seller and Tenants under valid and effective Tenant
Leases delivered to Purchaser pursuant to Section 4.1 of this Agreement, and no
party has been granted any license, lease or other right relating to the use or
possession of the Property, except Tenants under Tenant Leases which have been
delivered to Purchaser pursuant to Section 4.1 of this Agreement.
(d) Each Tenant Lease, if any, furnished to Purchaser pursuant to this
Agreement is in full force and effect and has not been materially amended,
modified or supplemented in any way that has not been disclosed to Purchaser in
writing. The Tenant Leases, if any, furnished to Purchaser pursuant to this
Agreement constitute all material written and oral agreements of any kind for
the leasing, rental or occupancy of any portion of the Property. All material
Tenant improvements, repairs and other work and obligations, if any, then
required to be performed by the landlord under each of the Tenant Leases will be
fully performed and paid for in full on or prior to the Closing.
(e) None of the Tenant Leases and none of the rents or other charges
payable thereunder, if any, have been assigned, pledged or encumbered by Seller,
except as security given in respect of that certain Credit Agreement dated as of
May 15, 1993, among Ramsay Health Care, Inc., a Delaware corporation ("Ramsay"),
certain subsidiaries of Ramsay, Hibernia National Bank, as lender, First Union
Bank of North Carolina, as lender, and Society Generale, New York Branch, as
lender, issuing bank and agent thereunder.
(f) No brokerage or leasing commissions or other compensation will be due
or payable to any person, firm, corporation or other entity with respect to, or
on account of, any Tenant Lease or any extensions or renewals thereof, if any,
except those agreements entered into or accepted in writing by Purchaser.
(g) No notice has been received by Seller and Seller is not aware of any
person having received notice from any insurance company that has issued a
policy with respect to any portion of the Property or from any board of fire
underwriters (or other body exercising similar functions), claiming any defects
or deficiencies or requiring the performance of any repairs, replacements,
alterations or other work. No notice has been received by Seller from any
issuing insurance company that any of such policies will not be renewed, or will
be renewed only at a higher premium rate than is presently payable therefor,
except as disclosed to and accepted by Purchaser in writing.
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(h) No pending condemnation, eminent domain, assessment or similar
proceeding or charge affecting the Property or any portion thereof exists.
Seller has not received any notice of a proposed increase in the assessed
valuation of the Property.
(i) (i) All of the Improvements (including all utilities) have been
completed and installed and are being used in accordance in all material
respects with all applicable Laws, including all plans and specifications, if
any, approved by governmental authorities having jurisdiction; (ii) permanent
certificates of occupancy, all licenses, permits, authorizations and approvals
required by all governmental authorities having jurisdiction, and the requisite
certificates of the local board of fire underwriters (or other body exercising
similar functions) have been issued for the Improvements, and are in full force
and effect; and (iii) the Improvements, as designed and constructed, comply in
all material respects with all statutes, restrictions, regulations and
ordinances applicable thereto.
(j) (i) The existing water, sewer, gas and electricity lines, storm
sewer and other utility systems on the Land are adequate to serve the utility
needs of the Property; (ii) all utilities required for the operation of the
Improvements enter the Land through adjoining public streets or through
adjoining private land in accordance with valid public or private easements that
will inure to the benefit of Purchaser; (iii) all approvals, licenses and
permits required for said utilities have been obtained and are in force and
effect; and (iv) all of said utilities are installed and operating, all
installation and connection charges have been paid in full, and the right to the
return of any deposit or contribution in connection therewith shall inure to
Purchaser.
(k) (i) There are no material structural defects in any of the buildings
or other Improvements constituting the Property; (ii) the Improvements, all
heating, electrical plumbing and drainage at or servicing the Property and all
facilities and equipment relating thereto are in reasonably good condition and
working order and adequate in quantity and quality for the normal operation of
the Property; (iii) no part of the Property has been destroyed or damaged by
fire or other casualty; and (iv) there are no unsatisfied requests for repairs,
restorations or alterations with regard to the Property from any Tenant, lender,
insurance provider or governmental authority.
(l) No work has been performed or is in progress at the Property, and no
materials will have been delivered to the Property, that might reasonably be
expected to provide the basis for a mechanic's, materialmen's or other lien
against the Property or any portion thereof
(m) Other than the Business Agreements delivered to Purchaser pursuant to
Section 4.1, there exist no material agreements or understandings (oral or
written) with respect to the Property or any portion thereof to which Seller is
a party (other than such items related solely to the conduct by Seller of its
business on the Property or Seller's other property or assets).
11
(n) No default or breach exists under any of the Business Agreements or
any covenant, condition, restriction, right-of-way or easement affecting the
Property or any portion thereof
(o) There are no actions, suits or proceedings pending or, to the best
knowledge of Seller, threatened against or affecting the Property or any portion
thereof or relating to or arising out of the ownership of the Property before
any federal, state, county or municipal department, commission, board, bureau or
agency or other governmental instrumentality, other than those disclosed to
Purchaser pursuant to Section 4.1. All judicial proceedings concerning the
Property will be finally dismissed and terminated prior to Closing.
(p) The Property has free and unimpeded access to currently-existing
public highways and/or roads (either directly or by way of perpetual easements),
and all approvals necessary therefor have been obtained and in full force and
effect. No fact or condition exists which would result in the termination of the
current access from the Property to any currently-existing public highways
and/or roads adjoining or situated on the Property.
(q) There are no attachments, executions, assignments for the benefit of
creditors, or voluntary or involuntary proceedings in bankruptcy or under any
other debtor relief laws contemplated by or pending or threatened against Seller
or the Property.
(r) Other than with respect to activities in connection with or conditions
arising strictly from customary and ordinary use or maintenance of the Property
by Seller and Tenants in full compliance with any or all Hazardous Materials
Law, Seller is unaware of (i) any Hazardous Materials installed, used,
generated, manufactured, treated, handled, refined, produced, processed, stored
or disposed of, or otherwise on or under, the Property; (ii) any activity being
undertaken on the Property which could cause (a) the Property to become a
hazardous waste treatment, storage or disposal facility within the meaning of
any Hazardous Materials Law, (b) a release or threatened release of Hazardous
Materials from the Property within the meaning of any Hazardous Materials Law,
or (c) the discharge of Hazardous Materials into any watercourse, body of
surface or subsurface water or wetland, or the discharge into the atmosphere of
any Hazardous Material which would require a permit under any Hazardous
Materials Law; (iii) any activity undertaken with respect to the Property which
would cause a violation or support a claim under any Hazardous Materials Law;
(iv) any pending or threatened investigation, administrative order, litigation
or settlement with respect to any Hazardous Materials relating to or affecting
the Property; or (v) any notice being served on Seller from any entity,
governmental body or individual claiming any violation of any Hazardous
Materials Law, or requiring compliance with any Hazardous Materials Law, or
demanding payment or contribution for the environmental damage or injury to
natural resources. Seller has not obtained and is not required to obtain, and
Seller has no knowledge of any reason Purchaser will be required to obtain, any
permits, licenses, or similar authorizations to occupy, operate or use the
Improvements or any part of the Property by reason of any Hazardous Materials
Law.
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(s) The Purchase Price is being allocated to the Real Property and the
portion of the Property which is considered to be personal property as set forth
on Exhibit J attached hereto.
---------
(t) All certificates of need and approvals, consents, licenses and other
Permits of any Federal, state or local governmental authority necessary or
appropriate for Seller's use of the Property as currently used and the receipt
of Federal and state funds in payment of patient services have been finally and
properly obtained, and no transfer or reissuance of, or notice or approval in
connection with, any such certificate, approval, consent, license or other
Permit is or will be required as a result of this Agreement or the Lease or the
consumation of the transactions contemplated hereby and thereby.
(u) The number of parking spaces available for use in connection with the
Improvements complies with all applicable Laws.
(v) All documents and information delivered by Seller to Purchaser
pursuant to the provisions of this Agreement are true, correct and complete as
of the date hereof and will be correct and complete as of the Closing Date,
except as set forth in this Agreement and in the disclosure schedule
accompanying this Agreement and initialled by the Parties (the "Disclosure
Schedule"). The Disclosure Schedule will be arranged in paragraphs corresponding
to the lettered paragraphs in this Section 6.1. From time to time after the
execution of this Agreement until the Closing, Seller shall deliver to Purchaser
one or more supplemental schedules setting forth all changes in the schedules,
and in previously delivered supplemental schedules, if any, and in any of the
representations and warranties made herein whether or not previously modified by
a schedule, arising out of matters discovered or occurring prior to the Closing.
Purchaser and its counsel shall have 30 days to object in writing to any
material information in any supplemental schedule. Failure by Purchaser to
notify Seller within such 30-day period of any objection to information provided
in the supplemental schedule prior to the Closing shall be deemed to be approval
thereof.
6.2 INDEMNITY OF SELLER. Subject to the provisions provided hereafter
limiting the liability of Seller, Seller hereby agrees to indemnify and defend,
at its sole cost and expense, and hold Purchaser, its successors and assigns,
harmless from and against and to reimburse Purchaser with respect to any and
all claims, demands, actions, causes of action, losses, damages, liabilities,
costs and expenses (including without limitation reasonable attorneys' fees and
court costs) of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by Purchaser at any time and from time
to time by reason of or arising out of (a) the breach of any representation or
warranty of Seller set forth in this Agreement, (b) the failure of Seller, in
whole or in part, to perform any obligation required to be performed by Seller
pursuant to Section 6.1, or (c) except for the matters disclosed herein or in
the Disclosure Schedule, the ownership, construction, occupancy, operation, use
and maintenance of the Property prior to the Closing Date, or (d) the violation
on or before the Closing Date of any Hazardous Material Law in effect on or
before the Closing Date and any and all matters arising out of any act,
omission, event or
13
circumstance existing or occurring on or prior to the Closing Date (including
without limitation the presence on the Property or release from the Property of
Hazardous Materials disposed of or otherwise released prior to the Closing Date)
which results in a violation of a Hazardous Materials Law, regardless of whether
the act, omission, event or circumstance constituted a violation of any
Hazardous Materials Law at the time of its existence or occurrence. The
provisions of this Section 6.2 shall survive the Closing of the transaction
contemplated by this Agreement and shall continue thereafter in full force and
effect for the benefit of Purchaser, its successors and assigns, and,
notwithstanding any provision of this Agreement to the contrary, Purchaser may
exercise any right or remedy Purchaser may have at law or in equity should
Seller fail to meet, comply with or perform its indemnity obligations required
by this Section 6.2.
6.3 Intentionally Deleted.
6.4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. Purchaser
represents and warrants to Seller that:
(a) Purchaser has duly and validly authorized and executed this Agreement,
and has full right, power and authority to enter into this Agreement and to
consummate the actions provided for herein, and the joinder of no person or
entity will be necessary to purchase the Property from Seller at Closing.
(b) The execution by Purchaser of this Agreement and the consummation by
Purchaser of the transactions contemplated hereby do not, and at the Closing
will not, result in any breach of any of the terms or provisions of or
constitute a default or a condition which upon notice or lapse of time or both
would ripen into a default under any indenture, agreement, instrument or
obligation to which Purchaser is a party, and do not constitute a violation of
any order, rule or regulation of any court or any federal or state or municipal
regulatory body or administrative agency or other governmental body having
jurisdiction over Purchaser.
(c) Purchaser shall indemnify and hold Seller harmless from and against
any claims for any brokerage fee or commission, finder's fee or financial
advisory fee arising from or related to the transactions contemplated by this
Agreement and which is asserted by any person or entity claiming to have acted
as agent or a representative of Purchaser.
(d) All documents and information delivered by Purchaser to Seller
pursuant to the provisions of this Agreement are true, correct and complete as
of the date hereof and will be correct and complete as of the Closing Date,
except as set forth in this Agreement and in the Disclosure Schedule. From time
to time after the execution of this Agreement until the Closing, Purchaser shall
deliver to Seller one or more supplemental schedules setting forth all changes
in the schedules, and in previously delivered supplemental schedules, if any,
and in any of the representations and warranties made herein whether or not
previously modified by a schedule, arising out of matters discovered or
occurring prior
14
to the Closing. Seller and its counsel shall have 30 days to object in writing
to any material information in any supplemental schedule, and failure by Seller
to notify Purchaser within such 30-day period of any objection to information
provided in the supplemental schedule prior to the Closing shall be deemed to be
approval thereof.
ARTICLE VII
CONDITIONS TO THE PURCHASER'S AND SELLER'S OBLIGATIONS
------------------------------------------------------
7.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligations of
Purchaser to purchase the Property from Seller and to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, as
of the Closing, of each of the following conditions:
(a) All of the representations and warranties of Seller set forth in this
Agreement shall be true as of the Closing in all material respects except for
changes expressly permitted or contemplated by the terms of this Agreement.
(b) Seller and Guarantor shall have delivered, performed, observed and
complied in all material respects with all of the items, instruments, documents,
covenants, agreements and conditions required by this Agreement to be delivered,
performed, observed and complied with by Seller or Guarantor prior to, or as of,
the Closing.
(c) Neither Seller nor Guarantor shall be in receivership or dissolution
proceedings or have made any assignment for the benefit of creditors, or
admitted in writing its inability to pay its debts as they mature, or have been
adjudicated as bankrupt, or have filed a petition in voluntary bankruptcy, a
petition or answer seeking reorganization or an arrangement with creditors under
the federal bankruptcy law or any other similar law or statute of the United
States or any state and no such petition shall have been filed against it; and
neither Seller nor Guarantor shall be in default with respect to any
Indebtedness in the outstanding amount of (i) in the case of Seller, at least
$50,000, and (ii) in the case of Guarantor, at least $1,000,000.
(d) No material or substantial change shall have occurred with respect to
the condition, financial or otherwise, of the Property, Seller or Guarantor.
(e) Neither the Property nor any part thereof or interest therein shall
have been taken by execution or other process of law in any action prior to
Closing.
(f) Purchaser shall be reasonably satisfied with its inspection of the
Property with respect to the physical condition thereof by agents or contractors
selected by Purchaser.
(g) Purchaser shall have received, in form acceptable to Purchaser,
evidence of compliance by the Property with all Permits required as of the
Effective Date hereof and such other Permits as may be necessary or appropriate
for the operation of the Property for
15
the current and intended use and for the transactions contemplated by this
Agreement and the Lease.
(h) All necessary approvals, consents and the like of third parties to the
validity and effectiveness of the transactions contemplated hereby shall have
been obtained.
(i) Purchaser shall be reasonably satisfied that the Property is
sufficient and adequate for Seller to carry on the business now being conducted
thereon and that the Property is in good condition and repair as reasonably
required for the proper operation and use thereof in compliance with applicable
Laws and the requirements of applicable accreditation and licensing authorities.
(j) Purchaser shall be satisfied with all matters regarding title and
survey pursuant to Article V hereof.
(k) Purchaser shall have obtained an environmental site assessment report
covering the Property in form and content acceptable to Purchaser.
(l) No portion of the Property shall have been destroyed by fire or
casualty.
(m) No condemnation, eminent domain or similar proceeding shall have been
commenced or threatened with respect to any portion of the Property.
(n) Purchaser shall have received an appraisal satisfactory to Purchaser
in all respects, including without limitation a fair market value substantially
equivalent to the Purchase Price.
(o) Seller shall have provided such representations, warranties and
consents as may be reasonably required by the United States Securities and
Exchange Commission (including but not limited to inclusion of financial
statements, financial information and other required information concerning
Seller or any affiliate of Seller in any United States Securities and Exchange
Commission filings made by Purchaser or any affiliate of Purchaser).
(p) Capstone Capital Corporation or an affiliate shall have entered into
an Agreement of Sale and Purchase with Mesa Psychiatric Hospital, Inc., an
Arizona corporation ("Mesa"), for the purchase of property constituting Desert
Vista Hospital in Mesa, Arizona, and there shall exist no event of default
thereunder on the part of Mesa.
7.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event any one
or more of the conditions to Purchaser's obligations are not satisfied in whole
or in part as of the Closing, Purchaser, at Purchaser's option, shall be
entitled to: (a) terminate this Agreement by giving written notice thereto to
Seller, whereupon all moneys which have been delivered by Purchaser to Seller or
the Title Company (other than the Independent
16
Consideration) shall be immediately refunded to Purchaser and neither Purchaser
nor Seller shall have any further obligations or liabilities hereunder; (b)
waive such failure of condition and proceed to Closing hereunder; or (c) pursue
such other remedies as may be available to Purchaser.
7.3 CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller to sell
the Property to Purchaser and to consummate the transactions contemplated by
this Agreement are subject to the satisfaction, as of the Closing Date, of each
of the following conditions:
(a) The representations and warranties of Purchaser contained herein shall
be in all material respects true and accurate as of the Closing Date.
(b) Purchaser shall have delivered, performed, observed and complied in
all material respects with all of the items, instruments, documents, covenants,
agreements and conditions required by this Agreement to be delivered, performed,
observed and complied with by Purchaser as of the Closing Date.
(c) No statute, rule, regulation, order, decree or injunction shall have
been enacted, entered, promulgated or enforced by any court of competent
jurisdiction or United States governmental authority which prohibits the
consummation of the transactions contemplated by this Agreement.
(d) All action required to be taken by the Purchaser to authorize the
execution, delivery, and performance of this Agreement and the other agreements
or documents related hereto, and the consummation of the transactions
contemplated hereby, shall have been duly and validly taken.
(e) Seller shall have received all necessary consents of lenders under
existing credit facilities to the transactions contemplated hereby and by the
Lease.
(f) Capstone Capital Corporation shall have entered into an Agreement of
Sale and Purchase with Mesa Psychiatric Hospital, Inc., an Arizona corporation,
for the purchase of property constituting Desert Vista Hospital in Mesa,
Arizona, and there shall exist no event of default thereunder on the part of the
purchaser.
7.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In the event any one or
more of the conditions to Seller's obligations are not satisfied in whole or in
part as of the Closing, Seller, at Seller's option, shall be entitled to: (a)
terminate this Agreement by giving written notice thereto to Purchaser,
whereupon all moneys which have been delivered by Purchaser to Seller or the
Title Company (other than the Independent Consideration) shall be immediately
refunded to Purchaser and neither Purchaser nor Seller shall have any further
obligations or liabilities hereunder; or (b) waive such failure of conditions
and proceed to Closing hereunder.
17
ARTICLE VIII
PROVISIONS WITH RESPECT TO THE CLOSING
--------------------------------------
8.1 SELLER'S CLOSING OBLIGATIONS. At Closing, Seller shall furnish and
deliver to the Title Company and/or Purchaser the following:
(a) The Deed, Title Commitment obligating the Title Company to issue the
Title Policy subject only to the Permitted Exceptions, Xxxx of Sale, Certificate
of Non-Foreign Status, Closing Certificate, the Guaranty and the Lease, each
duly executed and acknowledged by Seller or Guarantor, as the case may be.
(b) An affidavit, agreement and indemnity executed by Seller and dated as
of the Closing Date, stating that there are no unpaid debts for any work that
has been done or materials furnished to the Property prior to and as of Closing
and stating that Seller shall indemnify, save and protect Purchaser and its
assigns harmless from and against any and all Claims, including without
limitation court costs and reasonable attorneys' fees related thereto, arising
out of, in connection with, or resulting from the same, up to and including the
Closing Date, in form and substance mutually acceptable to Seller and Purchaser.
(c) Certificates of casualty and fire insurance for the Property required
pursuant to the Lease showing Purchaser as additional insured and loss payee
thereunder, with appropriate provisions for 30 days' prior notice to Purchaser
in the event of cancellation or termination of such policies.
(d) Updated Search Reports, dated not more than ten days prior to Closing,
evidencing no UCC-l Financing Statements or other filings in the name of Seller
with respect to the Property.
(e) Such affidavits, certificates or letters of indemnity as the Title
Company shall reasonably require in order to omit from its insurance policy all
exceptions for unfiled mechanic's, materialman's or similar liens.
(f) Any and all transfer declarations or disclosure documents, duly
executed by the appropriate parties, required in connection with the Deed by any
state, county or municipal agency having jurisdiction over the Property or the
transactions contemplated hereby.
(g) Such instruments or documents as are required by Purchaser or the
Title Company to evidence the status and capacity of Seller and the authority of
the person or persons who are executing the various documents on behalf of
Seller in connection with the purchase and sale transaction contemplated hereby.
(h) The Closing Fee and all other costs and expenses payable by Seller to
Purchaser pursuant to Section 9.2.
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(i) Rent for the month of April, 1995 in the amount set forth in Section
2.1(a) of the Lease.
8.2 PURCHASER'S CLOSING OBLIGATIONS. At Closing, Purchaser shall deliver
to the Title Company, and Seller the following:
(a) The Lease, duly executed and acknowledged by Purchaser.
(b) Such instruments as are necessary, or reasonably required by Seller or
the Title Company to evidence the authority of Purchaser to consummate the
transactions contemplated hereby and to execute and deliver the closing
documents on the Purchaser's part to be delivered.
(c) Purchaser shall have tendered the Purchase Price.
ARTICLE IX
EXPENSES OF CLOSING
-------------------
9.1 ADJUSTMENTS. There shall be no adjustment of taxes, assessments, water
or sewer charges, gas, electric, telephone or other utilities, operating
expenses, premiums on insurance policies or other normally proratable items, it
being agreed and understood by the Parties that the Seller shall be obligated to
pay such items under the terms of the Lease.
9.2 CLOSING COSTS. Seller shall pay all costs of closing, including
without limitation Purchaser's attorneys' fees and reasonable out of pocket
expenses related to the transactions contemplated herein, all title examination
fees and premiums for the Title Policy, the Search Reports, the Survey, any
environmental reports, appraisals, structural or engineering reports, all state,
municipal or other documentary or transfer taxes payable in connection with the
delivery of any instrument or document provided in or contemplated by this
Agreement or any agreement or commitment described or referred to herein, and
the charges for or in connection with the recording and/or filing of any
instrument or document provided herein or contemplated by this Agreement or any
agreement or document described or referred to herein.
ARTICLE X
DEFAULT AND REMEDIES
--------------------
l0.1 SELLER'S DEFAULT; PURCHASE'S REMEDIES.
(a) Seller's Default. Seller shall be deemed to be in default hereunder
----------------
upon the occurrence of any one or more of the following events: (i) any of
Seller's warranties or representations set forth herein shall be untrue in any
material aspect when made or at Closing, or (ii) Seller shall fail in any
material respect to meet, comply with, or perform any
19
covenant, agreement or obligation on its part required within the time limits
and in the manner required in this Agreement.
(b) Purchaser's Remedies. In the event Seller shall be deemed to be in
--------------------
default hereunder Purchaser may, as its sole remedies: (i) terminate this
Agreement by written notice delivered to Seller on or before the Closing; or
(ii) enforce specific performance of this Agreement against Seller including
Purchaser's reasonable costs and attorneys fees in connection therewith. It is
understood and agreed that termination or specific performance as provided in
(i) and (ii) above constitute Purchaser's sole remedy against Seller, and that
Purchaser shall not be entitled to seek monetary damages from Seller or assert
any other remedy against Seller, except for the costs and expenses to be paid by
Seller pursuant to Section 9.2 hereof.
l0.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
(a) Purchaser's Default. Purchaser shall be deemed to be in default
--------------------
hereunder upon the occurrence of any one or more of the following events: (i)
any of Purchaser's warranties or representations set forth herein shall be
untrue in any material respect when made or at Closing; or (ii) Purchaser shall
fail in any material respect to meet, comply with, or perform any covenant,
agreement or obligation on its part within the time limits and in the manner
required in this Agreement.
(b) Seller's Remedy. In the event Purchaser shall be deemed to be in
---------------
default hereunder, Seller, as Seller's sole and exclusive remedy for such
default, shall be entitled to terminate this Agreement and all rights of
Purchaser hereunder and to receive the Independent Consideration, it being
agreed between Purchaser and Seller that such sum shall be liquidated damages
for a default of Purchaser hereunder because of the difficulty, inconvenience,
and uncertainty of ascertaining actual damages for such default. If Seller shall
be entitled to the Independent Consideration in accordance with this Section
10.2, Purchaser agrees to deliver, on written request of Seller, such
instructions as may be reasonably necessary to cause the Title Company to
deliver the Independent Consideration to Seller. In such event, Purchaser will
pay the costs of the Survey, Title Commitment, Search Reports, appraisals and
any environmental survey, report or study, which shall be and become the
property of Purchaser.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 SURVIVAL. All of the representations, warranties, covenants,
agreements and indemnities (but not matters or items identified as conditions
for parties' obligation to close) of Seller and Purchaser contained in this
Agreement, to the extent not performed at the Closing, shall survive the Closing
and shall not be deemed to merge upon the acceptance of the Deed by Purchaser.
20
11.2 NOTICES. All notices, demands, requests and other communications or
documents to be provided under this Agreement shall be in writing and shall be
given to the party at its address or telecopy number set forth below or such
other address or telecopy number as the party may later specify for that purpose
by notice to the other party. Each notice shall, for all purposes shall be
deemed given and received:
(i) If given by telecopy, when the telecopy is transmitted to the
party's telecopy number specified below and confirmation of complete
receipt is received by that transmitting party during normal business
hours on any Business Day, or on the next Business Day if not confirmed
during normal business hours;
(ii) If hand delivered, when delivered;
(iii) If given by nationally recognized and reputable overnight
delivery service, the day on which the notice is actually received by the
party; or
(iv) If given by certified mail, return receipt requested, postage
prepaid, two Business Days after posted with the United States Postal
Service, at the address of the party specified below:
If to Purchaser:
CAPSTONE CAPITAL OF SAN ANTONIO, LTD.
d/b/a CAHABA OF SAN ANTONIO, LTD.
x000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxx X. XxXxxx, Esq.
Sirote & Permutt, P.C.
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
21
If intended for Seller:
RHCI San Antonio, Inc.
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Ramsay Health Care, Inc.
One Poydras Plaza
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxx Xxxx, Esq.
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11.3 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies and
constitutes the entire understanding between the parties with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements (oral or written), other than the
Lease, the Guaranty and all other documents executed in connection therewith,
are merged into this Agreement. Neither this Agreement nor any provision hereof
may be waived, modified, amended, discharged or terminated except by an
instrument in writing signed by the Party against whom the enforcement of such
waiver, modification, amendment, discharge or termination is sought, and then
only to the extent set forth in such instrument.
11.4 APPLICABLE LAW. This Agreement and the transactions contemplated
hereby shall be governed by and construed in accordance with the laws of the
state in which the Property is located.
11.5 CAPTIONS. The captions in this Agreement are inserted for convenience
of reference only and in no way define, describe, or limit the scope or intent
of this Agreement or any of the provisions hereof.
11.6 BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, legal and personal representatives, successors, and assigns.
22
11.7 EXTENSION OF DATES. Notwithstanding anything to the contrary
contained in this Agreement, if Seller shall fail to deliver any document or
item required pursuant to any of the terms and provisions of Article IV and/or
Article V within the applicable time period required, Purchaser, at its option,
shall have the right to extend the date of expiration of the Review Period, and
correspondingly the date of Closing, by the number of days elapsing from the
date such items were required to be delivered and the date such items were
actually delivered to Purchaser; provided that Purchaser shall give Seller
--------
notice of its intent to extend such dates. Nothing herein shall diminish
Seller's obligation to timely furnish such items.
11.8 TIME IS OF THE ESSENCE. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is not
a Business Day, then, in such event, the time of such period shall be extended
to the next day which is a Business Day.
11.9 WAIVER OF CONDITIONS. Any Party may at any time or times, at its
election, waive any of the conditions to its obligations hereunder, but any such
waiver shall be effective only if contained in a writing signed by such Party.
No waiver by a Party of any breach of this Agreement or of any warranty or
representation hereunder by the other Party shall be deemed to be a waiver of
any other breach by such other Party (whether preceding or succeeding and
whether or not of the same or similar nature), and no acceptance of payment or
performance by a Party after any breach by the other Party shall be deemed to be
a waiver of any breach of this Agreement or of any representation or warranty
hereunder by such other Party, whether or not the first Party knows of such
breach at the time it accepts such payment or performance. No failure or delay
by a Party to exercise any right it may have by reason of the default of the
other Party shall operate as a waiver of default or modification of this
Agreement or shall prevent the exercise of any right by the first Party while
the other Party continues to be so in default.
ll.l0 BROKERS. Each party hereby represents to the other party that it has
not discussed this Agreement or the subject matter thereof with any real estate
broker or salesman so as to create any legal rights in any such broker or
salesman to claim a real estate commission or similar fee with respect to the
purchase or sale of the Property, and agrees to defend, indemnify and hold the
other party harmless from any and all claims for any real estate commissions,
leasing fees or similar fees arising out of or in any way relating to a breach
of the foregoing representation.
11.11 RISK OF LOSS. Until the Closing Date, the risk of loss of any
portion of the Property shall be solely that of Seller. Risk of loss shall be
that of Purchaser from and after the Closing Date, at which xxxx Xxxxxx shall
deliver to Purchaser possession of the Property.
11.12 NO ASSUMPTION OF LIABILITIES. Purchaser shall not assume any of the
existing liabilities, indebtedness, commitments or obligations of any nature
whatsoever (whether
23
fixed or contingent) of Seller in respect of the Property or otherwise, except
those expressly assumed herein.
11.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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EXECUTED to be effective as of the Effective Date.
PURCHASER:
CAPSTONE CAPITAL OF SAN ANTONIO,
LTD., an Alabama limited partnership,
d/b/a CAHABA OF SAN ANTONIO, LTD.
By: CAPSTONE CAPITAL OF CAPE CORAL,
INC., an Alabama corporation,
d/b/a Cahaba of Cape Coral, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
Its: Vice President
Date April 12, 1995
-----------------------------------
Purchaser's Tax Identification Number:
00-0000000
SELLER:
RHCI SAN ANTONIO, INC.,
a Delaware corporation
By: [SIGNATURE ILLEGIBLE]
------------------------------------
Its: Vice President
-----------------------------------
Date April 12, 1995
-----------------------------------
Seller's Tax Identification Number:
00-0000000
25
