Exhibit 2.0
PURCHASE AND SALE AGREEMENT
by and between
NORTHWEST PROPERTY HOLDINGS,
LLC,
QC PROPERTY HOLDINGS, LLC,
ATTALLA NURSING ADK, LLC,
and
CP PROPERTY HOLDINGS, LLC,
collectively, as Seller
and
ATALLA REALTY LLC, a Georgia limited liability company,
COLLEGE PARK REALTY LLC, an Alabama limited liability company,
QUAIL CREEK REALTY LLC, an Oklahoma limited liability company, and
NORTHWEST REALTY LLC, an Oklahoma limited liability company,
collectively, as Buyer
Attalla Health & Rehab, Attalla, AL
Healthcare at College Park, College Park, GA
Quail Creek Nursing & Rehabilitation, Oklahoma City, OK
Northwest Nursing Center, Oklahoma City, OK
Effective Date: April 15, 2019
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT
(this “
Agreement
”) is made to be effective as of April 15, 2019 (the “
Effective Date
”) by and between
NORTHWEST PROPERTY HOLDINGS, LLC,
a Georgia limited liability company (“
NW Seller
”),
QC PROPERTY HOLDINGS, LLC,
a Georgia limited liability company (“
QC Seller
”),
ATTALLA NURSING ADK, LLC,
a Georgia limited liability company (“
AT Seller
”), and
CP PROPERTY HOLDINGS, LLC,
a Georgia limited liability company (“
CP Seller
” and together with NW Seller, QC Seller and AT Seller, collectively, “
Seller
”), and
ATTALLA REALTY LLC
, a Georgia limited liability company,
COLLEGE PARK REALTY LLC
, an Alabama limited liability company,
QUAIL CREEK REALTY LLC
, an Oklahoma limited liability company, and
NORTHWEST REALTY LLC
, an Oklahoma limited liability company (collectively, “
Buyer
”).
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth herein the parties hereto do hereby agree as follows:
ARTICLE 1 - CERTAIN DEFINITIONS
In addition to terms defined elsewhere in this Agreement, as used herein, the following terms shall have the following meanings:
“Assumed
Permits
” shall mean all Permits, to the extent transferrable or assignable under applicable Legal Requirements and the terms and conditions of the applicable Permit.
“
Business Day
” shall mean any day other than Saturday, Sunday, any Federal holiday, or any holiday in the State in which the Real Property is located. If any period expires or action is to be taken on a day which is not a Business Day, the time frame for the same shall be extended until the next Business Day.
“
Buyer Permits
” shall mean any licenses, permits, certifications, accreditations, Certificates
of
Need, certificates
of
exemption, approvals, waivers, variances
or
other governmental
or
“quasi-governmental” authorizations
or
comparable consents
or
items from any Governmental Authority (including, but not limited to, any Health Departments) that are either a condition
of
the sale
of
the Property
to
Buyer
or
necessary for Buyer to obtain (rather than receive an assignment thereof from Seller
or
rely
on
comparable permits, licenses
or
approvals issued to any Operator)
in
connection with the ownership
of
the Facilities for their respective Primary Intended Uses from and after Closing under any and all applicable Legal
Requirements.
“
Buyer’s Representatives
” shall mean Buyer and any officers, directors, employees, agents, consultants, representatives and attorneys of Buyer or any direct or indirect owner of any beneficial interest in Buyer, but only if the same conduct due diligence or are otherwise involved in the Transaction.
“
Certificate
of
Need
”
or
“
CON
” shall mean a certificate
of
need
or
similar permit
or
approval (not including conventional building permits) from a Governmental Authority related to the operation
of
the Property for the use
of
a specified number
of
beds
or
units
in
a nursing facility. Notwithstanding anything contained herein the contrary, all Certificates
of
Need shall constitute Assumed Permits and
be
assigned
to
Buyer at Closing by Seller
if
and
to
the extent permitted to
be
held by an owner
of
a nursing facility that
is
not an operator thereof under applicable Legal Requirements
(it
being the intention
of
Buyer and Seller that any and all Certificates
of
Need
be
issued to,
held in
the name
of
and owned by Buyer from and after Closing if and
to
the extent permitted under applicable Legal
Requirements).
“
Closing
” shall mean the closing of the Transaction.
“
Closing
Date” shall mean the day that the Transaction closes, which shall not be later than the Scheduled Closing Date.
“Closing
Documents
” shall mean all documents executed and delivered by Seller or Buyer as required by
Section 6.2
and
Section 6.3
or as otherwise executed and delivered by Seller or Buyer as part of the Closing.
“
deemed
to
know
” (or words
of
similar import) shall have the following meaning: Buyer and the Buyer’s Representatives shall
be
“
deemed to know
” any fact, circumstance
or
information
or
shall have “
deemed knowledge
”
of
the same
to
the extent (a) any Buyer’s Representative has actual knowledge
of
a particular fact
or
circumstance
or
information that
is
inconsistent with any Seller’s Warranty,
or
(b) this Agreement, the Closing Documents executed by Seller, any estoppel certificate executed by any party with respect to the Property, or any reports prepared or obtained by any Buyer’s Representatives
in
connection with Buyer’s due diligence discloses a particular fact
or
circumstance
or
contains information which
is
inconsistent with any Seller’s
Warranty.
“
Deposit
” shall mean collectively, (a) the sum of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (together with any interest earned thereon, the “
First Deposit
”), and (b) the sum of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (together with any interest earned thereon, the “
Second Deposit
”), to the extent Buyer deposits the same in accordance with the terms of
Section 2.1
.
“
Due Diligence Period
” shall mean the period commencing upon the execution of this Agreement and expiring at 5:00 p.m. Eastern Time on the day thirty (30) days after the Effective Date.
“
ERISA
” shall mean the Employee Retirement Income Security Act
of
1974, as amended.
“
Escrow Agent
” shall mean Riverside Abstract, LLC, in its capacity as escrow agent, whose mailing address is 1 Paragon Drive, Suite 150B, Montvale, New Jersey 07645, Attention: Aryeh Lazarus (telephone number: 718-215-5170, e-mail address: ALazarus@rsabstract.com).
“
Facility
” shall mean, collectively, that certain (a) 182 bed skilled nursing facility commonly known as Attalla Health & Rehab located in Attalla, AL, (b) that certain 100 bed skilled nursing facility commonly known as Healthcare at College Park located in College Park, GA, (c) that certain 118 bed skilled nursing facility commonly known as Quail Creek Nursing & Rehabilitation Center located in Oklahoma City, OK and (d) that certain 100 bed skilled nursing facility commonly known as Northwest Nursing Center located in Oklahoma City, OK.
“
Governmental Authority
” shall mean any court, board, agency, commission, bureau, office
or
authority
or
any governmental unit (federal, state, county, district, local, municipal, city
or
otherwise)
or
any other governmental, quasi-governmental
or
regulatory authority, and any regulatory, administrative
or
other subdivision, department
or
branch
of
the foregoing, whether now
or
hereafter
in
existence, including, without limitation, any state licensing agency
or
any accreditation agency. For the avoidance
of
doubt, the term “Governmental Authority” expressly includes departments
of
health and/or any governmental, quasi-governmental
or
regulatory authorities
of
the states where the Property
is
located which have jurisdiction over the licensing, ownership and/or operations
of
the Property as nursing care facilities (collectively, “
Health
Departments
”).
“
Intangible Property
” All other interest,
if
any,
of
Seller
in
and
to
the Real Property and the Improvements
or
pertaining thereto and any and all intangible property
of
every kind and character owned
or
utilized by Seller
in
connection with the ownership and operation
of
the Property, including, without limitation, any and all
of
the following: (i) the interest, if any,
of
Seller
in
the identity
or
business
of
the Property as a going concern, including, without limitation, any names
or
trade
names
by which the Property
or
any part thereof may
be
known including, but not limited to, names,
if
any, used
on
the date hereof in connection with the ownership and operation
of
the Property, and all registrations for such names,
if
any, and all intangible rights
or
interests associated with the Property, including without limitation, goodwill and going concern value, and the registrations therefor; and (ii) the interest,
if
any,
of
Seller
in
the Assumed
Permits.
“
Legal Requirements
” shall mean all applicable federal, state, county, district, local, municipal and city (and any other) statutes, laws, rules, orders, regulations, constitutions, notices, guidelines, ordinances, principles of common law, judgments, decrees, injunctions and other restrictions of any Governmental Authority.
“
Liabilities
” shall mean, collectively, any and all conditions, losses, costs, damages, claims, liabilities, expenses, demands or obligations of any kind or nature whatsoever.
“
Operating Leases
” shall mean collectively, (a) that certain Lease Agreement dated September 22, 2014, by and between AT Seller and AT Operator for the operation of the AT Facility, as amended by that certain First Amendment dated November 21, 2014, and that certain Second Amendment dated September 14, 2015 (collectively, the “
AT
Operating Lease
”), (b) that certain Sublease Agreement dated February 18, 2015, by and between CP Nursing, LLC, a Georgia limited liability company (“
CP Opco
”), and CP Operator, as extended by that certain extension notice dated February 16, 2017, and as assigned by CP Opco to CP Seller pursuant to that certain Bill of Sale and Lease Assignment dated as
of
February 15, 2018 (collectively, the
“
CP
Operating
Lease
”), (c) that certain Sublease Agreement dated May 1, 2015, by and between NW 61
st
Nursing, LLC, a Georgia limited liability company (“
NW Opco
”), and NW Operator, as amended by that certain First Amendment to Sublease Agreement dated December 1, 2015, and as assigned by NW Opco to NW Seller pursuant to that certain Bill
of
Sale and Lease Assignment date as
of
February 15, 2018 (collectively, the “
NW Operating Lease
”), and (d) that certain Sublease Agreement dated May 1, 2015, by and between QC Nursing, LLC (“
QC Opco
”) and QC Operator, as amended by that certain First Amendment dated December 1, 2015 (collectively, the “
QC Operating
Lease
”).
“
Operators
” shall mean collectively, (a) C.R. of Attalla, LLC, a Georgia limited liability company (“
AT Operator
”), which is the licensed operator of the AT Facility, (b) Healthcare at College Park, LLC, a Georgia limited liability company (“
CP Operator
”), which is the licensed operator of the CP Facility, (c) Southwest LTC-NW OKC, LLC, a Texas limited liability company (“
NW Operator
”), which is the licensed operator of the NW Facility, and (d) Southwest LTC-Quail Creek, LLC, a Texas limited liability company (“
QC Operator
”), which is the licensed operator of the QC Facility.
“
Owner’s Title Policy
” shall mean an ALTA owner’s title insurance policy issued by the Title Company in the amount of the Purchase Price.
“
Permits
” shall mean any and all licenses, permits, accreditations, approvals and certificates held by or issued to Seller relating to the ownership, occupancy or operation of the Property, a list of which is attached hereto as
Exhibit K
.
“
Permitted Exceptions
” shall mean and include all of the following, subject to the rights of Buyer to object to title and survey matters pursuant to
Article 3
: (a) applicable zoning, building and land use Legal Requirements, (b) such state of facts as disclosed by the Survey or any updates thereto (other than such matters that first appear on any update to the Survey issued after the expiration of the Due Diligence Period), (c) the lien of taxes, assessments and other governmental charges or fees not yet due and payable, (d) any exceptions caused by any Buyer’s Representative, (e) any exception that the Title Company agrees to affirmatively insure over in accordance with the terms hereof without any premium or charge to Buyer, (f) the rights of the Operators under the Operating Leases and the rights of residents under any leases or residency agreements, (g) any matters which Buyer has actual knowledge about prior to the expiration of the Due Diligence Period unless Seller has agreed to Remove the same pursuant to
Section 3.1
, (h) any matters deemed to constitute additional Permitted Exceptions under
Section 3.1
, and (i) any instrument affecting title to the Real Property that is approved or deemed approved by Buyer in accordance with the terms of
Section 8.1
. Permitted Exceptions shall not include any matters of record created by Seller in violation of
Section 8.1
.
“
Personal Property
” shall mean all fixtures, furniture and equipment and other tangible personal property, if any, which is owned by Seller and presently located on the Real Property, but excluding any items of personal property owned by Operator or others.
“
Primary Intended Use
” shall mean the type of health care facility currently operated at the Property as set forth on
Schedule 1
attached hereto.
“
Property
” shall mean, collectively, (a) the Real Property, (b) the Personal Property, (c) the Operating Lease, and (d) the Intangible Property.
“
Protected Information
” shall mean any books, records or files (whether
in
a printed
or
electronic format) that consist
of or
contain any
of
the following: Seller’s organizational documents
or
files
or
records relating thereto; appraisals; budgets; strategic plans for the Property; internal analyses; information regarding the marketing
of
the Property for sale; submissions relating to obtaining internal authorization for the sale
of
the Property by Seller
or
any direct
or
indirect owner
of
any beneficial interest
in
Seller; attorney and accountant work product; attorney-client privileged documents; internal correspondence
of
Seller, any direct
or
indirect owner
of
any beneficial interest
in
Seller, or any
of
their respective affiliates and correspondence between
or
among such parties; any information which any Seller Party
is
prohibited from disclosing by applicable Legal Requirements;
or
other information
in
the possession
or
control
of
Seller,
or
any direct or indirect
owner
of
any beneficial interest
in
Seller which such party reasonably deems proprietary,
or
privileged.
“
QC Intercompany Lease
” means that certain Facility Lease Agreement dated as of June 25, 2012, pursuant to which QC Opco leases the QC Facility from QC Seller.
“
Real Property
” shall mean the real estate legally described in
Exhibit A
attached hereto, together with all improvements and fixtures located thereon and owned by Seller as of the Closing and any rights, privileges and appurtenances pertaining thereto.
“
Remove
” with respect to any exception to title shall mean that Seller causes the Title Company
to
remove
of
record
or
affirmatively insure over the same, without any additional cost to Buyer, whether such removal
or
insurance
is
made available in consideration
of
payment, bonding, indemnity
of
Seller
or
otherwise;
provided
,
however
, Seller shall only
be
permitted to cause the Title Company
to
insure over title exceptions to the extent that Buyer consents thereto (which consent shall not
be
unreasonably withheld, conditioned
or
delayed).
“
Required Removal Exceptions
” shall mean, collectively, (a) any exceptions
to
title objected to by Buyer
in
accordance with
Section 3.1(a)
to the extent that such title objections are either
(i)
liens evidencing monetary encumbrances (other than
liens
for non-delinquent real estate taxes) created as a result
of
the intentional acts or omissions
of
Seller, its agents
or
affiliates, including any mortgage, deed
of
trust or other financing instrument securing indebtedness
of
Seller,
or
(ii)
title matters created by Seller, its agents
or
affiliates
in
violation
of
the terms
of
this Agreement; and (b) any exception
to
title that Seller has specifically agreed
in
writing to Remove pursuant to the terms
of
Section
3.1(b)
.
“
Scheduled Closing Date
” shall mean the date which is thirty (30) days after the expiration of the Due Diligence Period, as the same may be extended pursuant to the express terms of this Agreement.
“
Seller Parties
” shall mean and include, collectively, (a) Seller; (b) its counsel; (c)
Seller’s
Broker;
(d)
any
direct
or
indirect
owner
of
any
beneficial
interest
in
Seller; (r) any officer, director, employee,
or
agent
of
Seller, its counsel, Seller’s Broker,
or
any direct or indirect owner of any beneficial interest in Seller; and (f) any other entity or individual affiliated or related in any way to any of the foregoing.
“
Seller’s Broker
” shall mean Blueprint Healthcare.
“
Seller’s Knowledge
”
or
words
of
similar import shall refer only
to
the current actual knowledge
of
Clinton Cain, an employee
of
Seller (collectively, the “
Designated
Representative
”) and shall not
be
construed to impose upon the Designated Representative any
duty to
investigate the matters to which such knowledge,
or
the absence thereof, pertains, including, but not limited
to,
the contents
of
the materials delivered
or
made
available to Buyer’s Representatives
or
the contents
of
files maintained by the Designated Representative. There shall be
no
personal liability
on
the part
of
the Designated Representative arising out
of
any
of
the Seller’s
Warranties.
“
Seller’s Warranties
” shall mean Seller’s representations and warranties set forth in
Section 7.2
and the Closing Documents executed by Seller for the benefit of Buyer, as such representations and warranties may be deemed modified or waived by Buyer pursuant to the terms of this Agreement.
“
Survey
” shall mean an ALTA survey of the Property prepared by a surveyor licensed in the State in which the Real Property is located.
“
Title Commitment
” shall mean a commitment to issue an owner’s policy of title insurance with respect to the Property issued by the Title Company.
“
Title Company
” shall mean Riverside Abstract, LLC, whose mailing address is 1 Paragon Drive, Suite 150B, Montvale, New Jersey 07645, Attention: Aryeh Lazarus (telephone number: 718-215-5170, e-mail address: ALazarus@rsabstract.com).
“
Title Objections Deadline
” shall mean 5:00 p.m. Eastern Time on the date that is one (1) Business Day prior to the last day of the Due Diligence Period.
“
Transaction
” shall mean the transaction contemplated by this Agreement.
“
Transfer Approvals
” shall mean such consents, approvals and permits from Governmental Authorities, including any CHOW approvals required for Buyer to take title to the Properties without violating any requirements of the applicable Health Department.
“
Transfer Notices
” shall mean such petitions, notices and applications,
in
each case, as are necessary as a condition
to
the sale, transfer and conveyance
of
the Property by Seller to
Buyer.
ARTICLE 2 - SALE OF PROPERTY
Subject to the terms of this Agreement and the Closing Documents, Seller agrees to sell and Buyer agrees to purchase all of Seller’s right, title and interest in and to the Property. In consideration therefor, Buyer shall pay to Seller the sum of Twenty-Eight Million Five Hundred Thousand Dollars ($28,500,000.00) (the “
Purchase Price
”). The Purchase Price shall be allocated among the Properties as follows: $xxx,xxx.xx for the AT Property, $xxx,xxx.xx for the CP Property, $xxx,xxx.xx for the QC Property and $xxx,xxx.xx for the NW Property. The Purchase Price shall be paid as follows:
2.1
Payment
of
Deposit
. Prior to the execution
of
this Agreement, Buyer has paid the First Deposit to Escrow Agent. In addition, no later than one (1) Business Day after the expiration
of
the Due Diligence Period, Buyer shall
pay
the Second Deposit to Escrow
Agent.
2.2
Applicable Terms; Failure to Make Deposit
. The Deposit shall
be
paid to Escrow Agent
in
immediately available funds. Except as expressly otherwise set forth herein, the Deposit shall
be
applied against the Purchase Price at the Closing and shall otherwise be held and delivered by Escrow Agent
in
accordance with the provisions
of
Exhibit B
. Notwithstanding any provision
in
this Agreement to the contrary,
if
Buyer fails
to
terminate this Agreement prior to the expiration
of
the Due Diligence Period
in
accordance with Section 4.1 below and fails to timely make the Second Deposit as provided herein, such failure shall
be
a default by Buyer and Seller may elect to terminate this Agreement and receive the First Deposit as liquidated damages, and, thereafter, the parties shall have
no
further rights
or
obligations hereunder except for obligations which expressly survive the termination
of
this
Agreement.
2.3
Cash at Closing
. On the Scheduled Closing Date, Buyer shall (a) deposit into escrow with the Escrow Agent an amount equal
to
the balance
of
the Purchase Price in immediately available funds as more particularly set forth
in
Section 6.1
, as prorated and adjusted as set forth
in
Article 5
,
Section 6.1
, or as otherwise provided under this Agreement,
and
(b) authorize and direct the Escrow Agent to simultaneously pay the Deposit into such escrow.
2.4
Independent Consideration
.
At
the same time as the deposit
of
the Deposit
to
the Escrow Agent,
Buyer
shall deliver
to
Seller
in
cash the amount
of
One Hundred and No/100 Dollars ($100.00) (the “
Independent Contract Consideration
”) which amount has been bargained for and agreed
to
as consideration for Buyer’s exclusive option to purchase the Property and the Due Diligence Period provided herein, and for Seller’s execution and delivery
of
this
Agreement. The Independent Contract Consideration
is in
addition
to
and independent
of
all other consideration provided
in
this Agreement, and
is
nonrefundable
in
all
events.
ARTICLE 3 - TITLE MATTERS
3.1
Title Defects
.
3.1.1
Prior to the Title Objections Deadline, Buyer shall have the right to object
in
writing
to
any title matters that appear
on
the Title Commitment, the Survey, and
any
updates thereto (whether
or
not such matters constitute Permitted Exceptions). In addition, after expiration
of
the Due Diligence Period, Buyer shall have the right to object
in
writing
to
any title matters which are not Permitted Exceptions and which materially adversely affect Buyer’s title
to
the Real Property (as reasonably determined by Buyer in good faith)
if
(i) such matters first appear
on
any update to the Title Commitment
or
Survey issued after the expiration
of
the Due Diligence Period, and (ii) such objection is made by Buyer within five (5) Business Days after such updated Title Commitment or Survey
is
received by Buyer (but,
in
any event, prior to the Scheduled Closing Date). Unless Buyer
is
entitled
to
and timely objects
to
such title matters, all such title matters shall
be
deemed to constitute additional Permitted
Exceptions.
3.1.2
With respect to any title objections that are not Required Removal Exceptions, Seller may elect to Remove any such exceptions to title and Seller may notify Buyer
in
writing within five (5) Business Days after receipt
of
Buyer’s notice
of
Buyer’s title objections (but,
in
any event, prior to the Scheduled Closing Date) whether Seller elects
to
Remove
the same. Failure
of
Seller
to
respond
in
writing within such period shall
be
deemed an election by Seller not to Remove Buyer’s title objections.
If
Seller elects
or
is
deemed
to
have elected not to Remove one
or
more
of
Buyer’s title objections, then, within five (5) Business Days after Seller’s election
or
deemed election (but,
in
any event, prior to the Scheduled Closing Date),
Buyer
may elect
in
writing to either (i) terminate this Agreement,
in
which event the Deposit shall
be
paid to
Buyer
and, thereafter, the parties shall have
no
further rights or obligations hereunder except for obligations which expressly survive the termination
of
this Agreement,
or
(ii)
waive such title objections and proceed to Closing without any reduction
of or
credit against the Purchase Price. Failure
of
Buyer to respond
in
writing within such period shall be deemed an election by Buyer
to
waive
such title objections and proceed to Closing. Any such title objection so waived (or deemed waived) by Buyer shall constitute a Permitted Exception.
3.1.3
If this Agreement
is
not terminated by Buyer
in
accordance with the provisions hereof, Seller shall, at Closing, Remove all Required Removal Exceptions.
If
Seller
is
unable
to
Remove
any Required Removal Exceptions prior to the Closing (as extended as provided
in
Section 3.1.4
, Buyer
may at Closing elect to either (i) exercise Buyer’s rights under
Section 9.2
, or
(ii)
accept such exceptions to title and the Closing shall occur as herein provided without any reduction
of or
credit against the Purchase Price.
3.1.4
Seller shall be entitled
to
one
or
more extensions
of
the Scheduled Closing Date (not to exceed thirty (30) days
in
the aggregate) to allow additional time for Seller to Remove any exceptions
to
title. Seller shall have the right to replace the Title Company with another nationally recognized title insurance company reasonably satisfactory
to
Buyer
if
the Title Company fails
or
refuses to Remove any exceptions
to
title that Seller elects
or
is
required to
Remove.
3.2
Title Insurance
.
At
Closing
, the Title Company shall issue (or
be
irrevocably committed to issuing) the Owner’s Title Policy
to
Buyer, insuring that title
to
the Real Property
is
vested
in
Buyer subject only to the Permitted Exceptions. Buyer may request that the Title Company provide endorsements to the Owner’s Title Policy, provided that (a) such endorsements shall be at
no
cost to, and shall impose
no
additional liability on,
Seller, (b) Buyer’s obligations under this Agreement shall not be conditioned upon Buyer’s ability to obtain such endorsements, and (c) the Closing shall not be delayed as a result of Buyer’s request.
ARTICLE 4 - BUYER’S DUE DILIGENCE/AS-IS SALE
4.1
Buyer’s Due Diligence
.
At
all times prior to Closing while this Agreement remains
in
effect, Buyer and any Buyer’s Representative shall have the right to enter upon the Property for the purpose
of
inspecting the Property and performing non-invasive and non-destructive diligence inspections, investigations and feasibility studies, at Buyer’s sole risk, cost and expense. Before any such entry, Buyer shall provide Seller with
evidence satisfactory
to
Seller confirming that any agent
of
Buyer has standard commercial general liability insurance policy covering the activities
of
Buyer’s Representative providing insurance limits and coverage acceptable
to
Seller. All
of
such entries upon the Property shall be at reasonable times during normal business hours and shall
be
permitted only after at
least
two (2)
days
prior notice to Seller, and Seller
or
Seller’s managing agent shall have the right to accompany Buyer and
any
Buyer’s Representative during any activities performed by Buyer
on
the Property. Buyer’s right
of
entry and inspection shall be subject to the rights
of
tenants
of
the Property and Buyer and any Buyer’s Representative shall not unreasonably interfere with the ongoing operation
of
the Property
or
the use and enjoyment
of
the Property by Seller and Seller’s tenants. If
any
inspection
or
test performed by
or on
behalf
of
Buyer damages, disturbs
or
otherwise alters the condition
of
the Property, then Buyer will promptly repair said damage as near as possible
to
the condition which existed before such damage. The provisions
of
this section shall survive Closing
or
the earlier termination
of
this Agreement. Buyer,
in
its sole and absolute discretion, may terminate this Agreement by written notice
to
Seller at any time prior to the expiration
of
the Due Diligence Period for any reason
or
no
reason, and,
in
the event
of
such termination, neither Seller nor Buyer shall have any liability hereunder except for those obligations which expressly survive the termination
of
this Agreement and Buyer shall be entitled to the return
of
the Deposit. In the event Buyer fails to terminate this Agreement prior to the expiration
of
the Due Diligence Period, Buyer shall
be
deemed to
have
waived its rights to terminate this Agreement
in
accordance with this
section.
4.2
As-Is
Provisions
.
4.2.1
As-Is Sale
. Buyer acknowledges and agrees
that:
(a)
Buyer has conducted, and shall continue
to
conduct during the Due Diligence Period,
or
waive its right to conduct, such due diligence as Buyer has deemed
or
shall deem necessary
or
appropriate.
(b)
The Property shall be sold, and Buyer shall accept possession
of
the Property as
of
the Closing, “AS IS, WHERE IS, WITH ALL FAULTS”, with
no
right
of
setoff
or
reduction
in
the Purchase Price, except as expressly set forth to the contrary
in
this Agreement and the Closing
Documents.
(c)
Except for Seller’s Warranties, none
of
the Seller Parties shall be deemed
to
have
made any verbal
or
written representations, warranties, promises
or
guarantees (whether express, implied, statutory
or
otherwise)
to
Buyer with respect to the Property, any matter
set
forth, contained
or
addressed
in
the materials delivered
or
made
available
to
Buyer’s Representatives, including, but not
limited
to, the accuracy and completeness thereof,
or
the results
of
Buyer’s due diligence.
(d)
Buyer shall independently confirm
to
its satisfaction all information that
it
considers material
to
its purchase
of
the Property
or
the Transaction.
4.2.2
Release
. By accepting the Deed and closing the Transaction, Buyer,
on
behalf
of
itself and its successors and assigns, shall thereby release each
of
the Seller Parties from, and
waive
any and all Liabilities against each
of
the Seller Parties
for, attributable to, or in connection with the Property, whether arising or accruing before, on or after the Closing and whether attributable to events or circumstances which arise or occur before, on or after the Closing, including, without limitation, the following: (a) any and all statements or opinions heretofore or hereafter made, or information furnished, by any Seller Parties to any Buyer’s Representatives; and (b) any and all Liabilities with respect to the structural, physical, or environmental condition of the Property, whether such Liabilities are latent or patent, including, without limitation, all Liabilities relating to the release, presence, discovery or removal of any hazardous or regulated substance, chemical, waste or material that may be located in, at, about or under the Property, or connected with or arising out of any and all claims or causes of action based upon CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§9601
et seq
., as amended by SARA (Superfund Amendment and Reauthorization Act of 1986) and as may be further amended from time to time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901
et seq
., or any other Federal, State or municipal Legal Requirements relating to environmental contamination, or any other related claims or causes of action (collectively, “
Environmental Liabilities
”); and (c) any implied or statutory warranties or guaranties of fitness, merchantability or any other statutory or implied warranty or guaranty of any kind or nature regarding or relating to any portion of the Property. Notwithstanding the foregoing, the foregoing release and waiver is not intended and shall not be construed as affecting or impairing any rights or remedies that Buyer may have against Seller with respect to (i) a breach of any of Seller’s Warranties, (ii) any of the obligations of Seller under this Agreement that expressly survive the Closing, or (iii) any acts constituting fraud by Seller.
4.2.3
Assumption
of
Liability
. By accepting the Deed and closing the Transaction, Buyer shall thereby assume and take responsibility and liability for the following: (a) any and all Liabilities attributable to the Property
to
the extent that the same arise
or
accrue
on or
after the Closing and are attributable
to
events
or
circumstances which arise
or
occur
on or
after the Closing; and (b) any and all Liabilities with respect to the structural, physical or
environmental condition
of
the Property, whether such Liabilities are latent
or
patent, whether the same arise
or
accrue before,
on or
after the Closing, and whether the same are attributable
to
events
or
circumstances which may arise
or
occur before,
on or
after the Closing, including, without limitation, all Environmental Liabilities; and (c) any and all Liabilities with respect to which Buyer has expressly agreed
to
assume and/or receives a credit
at
Closing. Buyer acknowledges and agrees that the Liabilities
to
be
assumed by Buyer pursuant to each
of
the foregoing clauses are intended
to
be
independent
of
one another,
so
Buyer shall assume Liabilities described
in
each
of
the clauses even though some
of
those Liabilities may
be
read
to
be
excluded by another clause. Notwithstanding the foregoing, any tort claims brought with respect to the Property, to the extent that the same arises
or
accrues as a result
of
any injury that arose
or
occurred prior to the Closing, shall not
be
assumed by Buyer as a result
of
clause (b)
or
clause (c)
unless the same are caused by the acts
or
omissions
of
any Buyer’s
Representatives.
4.2.4
No Indemnification
. Notwithstanding any provision
in
this
Section 4.2
to the contrary, the releases, waivers and assumptions set forth
in
this
Section 4.2
shall not
be
construed as an indemnification by Buyer for the benefit
of
Seller for any Liabilities arising
or
accruing prior to
Closing.
4.2.5
Successors and Assigns
. The provisions
of
this
Section 4.2
shall
be
binding upon and shall inure
to
the benefit
of
the parties hereto and their respective successors and permitted
assigns.
4.2.6
Reaffirmation and Survival
. The provisions
of
this
Section 4.2
shall be deemed reaffirmed by Buyer by acceptance
of
the Deed and shall survive the
Closing.
4.3
Limitation
on
Seller’s
Liability
.
4.3.1
Maximum Aggregate Liability
. Notwithstanding any provision
to
the contrary contained
in
this Agreement or the Closing Documents, the maximum aggregate liability
of
the Seller Parties, and the maximum aggregate amount which may
be
awarded to and collected by Buyer,
in
connection with the Transaction, the Property, under this Agreement, and under all Closing Documents (including, without limitation, in connection with the breach
of
any
of
Seller’s Warranties for which a claim
is
timely made by Buyer) shall not exceed,
in
the aggregate, an amount equal to One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00);
provided, however
, that the foregoing cap
on
the liability
of
Seller shall not
be
applicable
to
any liability that Seller may have with respect to (a) the post-closing reproration obligations pursuant to
Section 5.4
,
or
(b) the indemnity by Seller regarding the payment
of
the commission to Seller’s Broker or other brokers engaged by Seller pursuant to
Section
8.4
.
4.3.2
Survival
. The provisions
of
this
Section 4.3
shall survive the Closing (and not
be
merged therein)
or
any earlier termination of this
Agreement.
ARTICLE 5 - ADJUSTMENTS AND PRORATIONS
5.1
Proration
of
Income
.
5.1.1
Rents
. For purposes
of
this Agreement, “
Rents
” shall mean all base rents, percentage rents, additional rent and any tax and operating expense reimbursements and escalations due from Operator under the Operating Lease. All collected Rents and other income
from
Property
operations
shall
be
prorated
between
Seller
and
Buyer
as
of
12:01 a.m.
on
the Closing Date. Rents
or
other income from Property operations not collected as
of
the Closing shall not
be
prorated
at
the time
of
Closing. Percentage rent due from any tenant shall be prorated as herein provided at such time as Buyer collects the same in accordance with
Section
5.1.2
.
5.1.2
Post-Closing Collections
. After Closing, Buyer shall make a commercially reasonable effort to collect any Rents
or
other revenues not collected as
of
the Closing
on
Seller’s behalf and to tender the same
to
Seller upon receipt. Buyer shall not
have
an exclusive right to collect Rents
or
other revenue due Seller and Seller hereby retains its rights to pursue claims against Operator under the Operating Lease
or
other party for sums due with respect to periods prior to the Closing Date;
provided
,
however
, with respect to any legal proceedings against Operator, Seller (a) shall
be
required to notify Buyer
in
writing
of
its intention
to
pursue such legal proceedings; (b) shall only
be
permitted to pursue any legal proceedings after the
date
which
is
ninety (90) days after the Closing Date; and (c) shall not
be
permitted to pursue any legal proceedings seeking eviction
or
the termination
of
the Operating Lease. All Rents collected by Buyer
or
Seller after the Closing shall first be applied
to
all amounts due under the Operating Lease at the time
of
collection (
i.e.
, current Rents and sums due Buyer as the current owner and landlord) with the balance (if any) payable
to
Seller, but only
to
the extent
of
amounts delinquent and actually due Seller. The terms
of
this section shall survive the Closing and not
be
merged
therein.
5.1.3
Cash Security Deposits
.
At
Closing, Seller shall give Buyer a credit against the Purchase Price
in
the aggregate amount
of
any cash security deposit held
by
Seller under the Operating
Lease.
5.2
Proration
of
Taxes and Other Property
Expenses
.
5.2.1
Proration
of
Ad Valorem
Taxes
. All general real estate and
ad valorem
taxes and other state, county
or
municipal taxes, charges and assessments affecting the Property will
be
prorated as
of
12:01 a.m.
on
the Closing Date. In the event final, current bills for such taxes are not available at Closing, such taxes will
be
prorated
on
the basis
of
110%
of
the taxes for most recent year for which final bills are
available.
5.2.2
Special Assessments
. Seller shall pay all installments
of
special assessments due and payable prior to the Closing Date and Buyer shall
pay
all installments
of
special assessments due and payable
on
and after the Closing
Date.
5.2.3
Other Property Operating Expenses
. Operating expenses for the Property shall be prorated as
of
12:01 a.m.
on
the Closing Date. To the extent that the amount
of
actual consumption
of
any utility services
is
not determined prior to the Closing Date, a proration shall
be
made at Closing based
on
the last available reading and post-closing adjustments between Buyer and Seller
shall
be
made within twenty (20) days
of
the date that actual consumption for such pre-closing period
is
determined, which obligation shall survive the Closing and not
be
merged therein. Seller shall not assign
to
Buyer
any
deposits which Seller has with any
of
the utility services
or
companies servicing the Property. Buyer shall arrange with such services and companies
to
have
accounts opened
in
Buyer’s name beginning at 12:01 a.m.
on
the Closing
Date.
5.3
Closing
Costs
.
Closing
costs shall be allocated between Buyer and Seller in accordance with local custom. For the avoidance
of
doubt:
5.3.1
Buyer shall pay the following closing costs:
(i)
all premiums and charges
of
the Title Company for the Title Commitment and the Owner’s Title Policy (including any endorsements requested by Buyer), (ii) the cost
of
the Survey (including any Survey costs incurred by Seller
in
anticipation
of
the sale
of
the Property), (iii) all recording and filing
charges
in
connection
with
the
instrument
by
which
Seller
conveys
the
Property, (iv) fifty percent (50%)
of
all escrow or closing charges, (v) all transfer taxes and similar charges,
if
any, applicable
to
the transfer
of
the Property
to
Buyer
for any Property in Alabama, (vi) the commission due any broker representing Buyer, (vii) all fees due its attorneys and all costs
of
Buyer’s due diligence, including fees due its consultants,
and (viii) all lenders’ fees, documentary stamp fees, mortgage taxes, and similar charges, if any, related to any financing to be obtained by Buyer.
5.3.2
Seller shall pay the following closing costs: (i) the commission due Seller’s Broker,
(ii)
all fees due its attorneys, (iii) all costs incurred
in
connection with causing the Title Company
to
Remove any Required Removal Exceptions, (iv) fifty percent (50%)
of
all escrow
or
closing charges, (v) all transfer taxes and similar charges, if any, applicable
to
the transfer
of
the Property to Buyer for any Property
in
Georgia and Oklahoma and (vi) all use taxes, sales taxes and similar charges,
if
any, applicable to the transfer
of
the Property
to
Buyer, including any personal property taxes
or
similar charges.
The obligations of the parties under this section shall survive the Closing (and not be merged therein) or any earlier termination of this Agreement.
5.4
Delayed Adjustment; Delivery
of
Financial Data
. No later than sixty (60) days after Closing (or, with respect to property taxes, within ten (10) days after final tax bills are received by Buyer), Buyer shall prepare and present to Seller a recalculation
of
any and all amounts due or subject to proration under this
Article 5
(taking into consideration any errors and changes necessary because
of
the lack
of
complete
or
accurate information as
of
the Closing Date) as well as supporting documentation for such recalculation. The parties shall make the appropriate adjusting payment between them within thirty (30) days after delivery
of
any such recalculation. The provisions
of
this section shall survive the Closing and not
be
merged
therein.
ARTICLE 6 - CLOSING
6.1
Closing
Mechanics
.
6.1.1
The parties shall conduct an escrow-style closing through the Escrow Agent so that
it
will not
be
necessary for any party to attend the
Closing.
6.1.2
Provided all conditions precedent to Seller’s obligations hereunder have been satisfied, Seller agrees
to
convey the Property
to
Buyer
upon confirmation
of
receipt
of
the Purchase Price by the Escrow
Agent
as set forth below. Provided all conditions precedent
to
Buyer’s obligations hereunder have been satisfied, Buyer agrees
to
pay the amount specified
in
Section 2.3
by timely delivering the same
to
the Escrow
Agent
on
the Scheduled Closing Date and unconditionally authorizing and directing the Escrow Agent
no
later than 3:00 p.m. Eastern Time
on
the Scheduled Closing Date to deposit the same
in
Seller’s designated account. In addition, for each full
or
partial
day
after 3:00 p.m. Eastern Time
on
the Scheduled Closing Date that Buyer fails
to
comply with the foregoing, then, at Seller’s election (and
in
addition to any rights that Seller may have pursuant to
Section 9.1
), the prorations between the parties shall
be
calculated as
of
the next Business
Day.
6.1.3
The items
to
be
delivered by Seller
or
Buyer
in
accordance with the terms
of
Section 6.2
or
Section 6.3
shall
be
delivered
to
Escrow
Agent no
later than 5:00 p.m. Eastern Time
on
the last Business Day prior to the Scheduled Closing Date except
that (i) the items
in
the paragraph entitled “Keys and Original Documents” shall
be
delivered by Seller at the Property
on
the Closing Date, and (ii) the Purchase Price shall be delivered by Buyer
in
accordance with the terms
of
Section
6.1(b)
.
6.2
Seller’s Closing Deliveries
.
At
Closing, Seller shall deliver the
following:
6.2.1
Deed
. A deed
in
the form
of
Exhibit C
attached hereto (“
Deed
”), executed and acknowledged by
Seller.
6.2.2
Bill
of
Sale
. A bill
of
sale
in
the form
of
Exhibit D
attached hereto, executed by
Seller.
6.2.3
Assignment Agreement
. An assignment and assumption
of
the Operating Lease and Intangible Property,
in
the form
of
Exhibit E
attached hereto (“
Assignment Agreement
”), executed by
Seller.
6.2.4
Notice
to
Tenants
. A letter
in
the form
of
Exhibit F
attached hereto, executed by Seller, which shall
be
sent by Buyer after Closing
to
the Operator under the Operating
Lease.
6.2.5
Non-Foreign Status Affidavit
. A non-foreign status affidavit
in
the form
of
Exhibit G
attached hereto, as required by Section 1445
of
the Internal Revenue Code, executed by
Seller.
6.2.6
Evidence
of
Authority
. Documentation to establish
to
the Title Company’s reasonable satisfaction the due authorization
of
Seller’s consummation
of
the Transaction, including Seller’s execution
of
this Agreement and the Closing Documents required to
be
delivered by
Seller.
6.2.7
Other Documents
. A title affidavit
in
the form
of
Exhibit H-1
attached hereto, a gap indemnity
in
the form
of
Exhibit H-2
attached hereto, applicable transfer
or
sales tax filings, and such other documents as may be reasonably required by the Title Company
or
as may
be
agreed upon by Seller and Buyer to consummate the
Transaction.
6.2.8
Representation Certificate
. A certificate confirming and updating Seller’s Warranties as
of
the Closing Date
in
the form
of
Exhibit I-1
attached
hereto.
6.2.9
Termination
of
QC Intercompany Lease
. Evidence that the QC Intercompany Lease has been terminated as
of
the Closing
Date.
6.2.10
Closing Statement
. A mutually acceptable form
of
a joint closing statement, setting forth the prorations and adjustments
to
the Purchase Price respecting the Property
to
be made
pursuant to this Agreement (the “
Closing Statement
”), executed by
Seller.
6.2.11
Keys and Original Documents
. Keys
to
all locks
on
the Real Property in Seller’s possession and originals or,
if
originals are not available, copies,
of
the Operating Lease, to the extent not previously delivered to
Buyer.
6.3
Buyer’s Closing Deliveries
.
At
the Closing, Buyer shall deliver the
following:
6.3.1
Purchase Price
. The Purchase Price, as adjusted for apportionments and other adjustments required under this Agreement, plus any other amounts required to
be
paid by Buyer at
Closing.
6.3.2
Assignment Agreement
. The Assignment Agreement, executed by
Buyer.
6.3.3
Representation Certificate
. A certificate confirming and updating Buyer’s representations and warranties set forth
in
this Agreement as
of
the Closing Date
in
the form
of
Exhibit I-2
attached
hereto.
6.3.4
Evidence
of
Authority
. Documentation to establish
to
Title
Company’s reasonable satisfaction the due authorization
of
Buyer’s consummation
of
the Transaction, including Buyer’s execution
of
this Agreement and the Closing Documents required to
be
delivered by
Buyer.
6.3.5
Other Documents
. Applicable transfer
or
sales tax filings and such other documents as may
be
reasonably required by the Title Company
or
may
be
agreed upon by Seller and Buyer to consummate the
Transaction.
6.3.6
Closing Statement
. The Closing Statement, executed by
Buyer.
6.4
Conditions
to
Buyer’s Obligations
. Buyer’s obligation
to
close the Transaction
is
conditioned
on
all
of
the
following:
6.4.1
Representations True
. All Seller’s Warranties
in
this Agreement, as the same may
be
deemed modified as provided
in
Section 7.3
, shall
be
true and correct
in
all
material respects
on
and as
of
the Closing Date, as
if
made
on
and as
of
such date except to the extent that they expressly relate to an earlier
date.
6.4.2
Seller’s Deliveries Complete
. Seller shall have delivered all
of
the documents and other items required pursuant to
Section 6.2
and shall have performed
all
other material obligations to
be
performed by Seller
at
or prior to the
Closing.
6.4.3
Buyer Permits
. Buyer shall have obtained and/or been issued any and all Buyer Permits (including any CHOW approvals) from Governmental
Authorities.
6.4.4
Material Adverse Change
. From the expiration
of
the Due Diligence Period until the Closing Date, there shall not have been any material adverse change in the regulatory status and/or condition
of
any
of
Operators’ licenses, permits and/or certifications.
6.4.5
Operator Estoppel Certificates
. Seller shall have delivered
to
Buyer
an
Estoppel Certificate, substantially
in
the form attached hereto as
Exhibit L
or
in
the form required under such Operating Lease, with respect to each Operating Lease. Seller’s failure
to
obtain any such Operator Estoppel Certificate shall not
be
a default by Seller hereunder; provided, however, for the avoidance
of
doubt,
in
the event
of
such failure, Buyer shall have the right to terminate this Agreement pursuant to
Section 6.6
below.
6.5
Conditions
to
Seller’s Obligations
. Seller’s obligation
to
close the Transaction
is
conditioned
on
all
of
the
following:
6.5.1
Representations True
. All representations and warranties made by Buyer
in
this Agreement shall be true and correct
in
all material respects
on
and as
of
the Closing Date, as
if
made
on
and as
of
such date except to the extent they expressly relate to an earlier
date.
6.5.2
Buyer’s Deliveries Complete
. Buyer shall have delivered the funds required hereunder and all
of
the documents to
be
executed by Buyer set forth
in
Section 6.3
and shall have performed all other material obligations to
be
performed by Buyer at
or
prior to the
Closing.
6.5.3
Buyer Permits
. Buyer shall have obtained and/or been issued any and all Buyer Permits (including any CHOW approvals) from Governmental
Authorities.
6.5.4
Transfer Approvals
. Seller shall have obtained any and all Transfer Approvals from Governmental Authorities necessary
or
advisable for the sale, transfer and conveyance
of
the Property to
Buyer.
6.6
Waiver
of
Failure
of
Conditions Precedent
.
At
any time
on
or before the date specified for the satisfaction
of
any condition, Seller
or
Buyer may elect
in
writing
to
waive
the benefit
of
any such condition
to
its obligations hereunder. By closing the Transaction, Seller and Buyer shall
be
conclusively deemed
to
have
waived the benefit
of
any remaining unfulfilled conditions set forth
in
this
Article 6
to the extent the party had actual knowledge
of
such unfulfilled condition, except to the extent that the same expressly survive Closing.
In
the event any
of
the conditions set forth
in
this
Article 6
are neither waived nor fulfilled, the party for whose benefit the applicable condition exists may terminate this Agreement (subject to the notice and cure rights set forth
in
Article 9
and elsewhere
in
this Agreement) and exercise such rights and remedies,
if
any, that such party may have pursuant to the terms
of
Article 9
. If this Agreement
is
terminated as a result
of
the failure
of
any condition set forth
in
this
Article 6
that
is
not also a default hereunder, then the Deposit shall be returned to
Buyer
and, thereafter, neither party shall have any further rights
or
obligations hereunder except for obligations which expressly survive termination
of
this
Agreement.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES
7.1
Buyer’s Representations
. Buyer represents and warrants to Seller as
follows:
7.1.1
Buyer’s Authorization
. Buyer (a)
is
duly organized (or formed), validly existing and
in
good
standing under the Legal Requirements
of
its State
of
organization and, to the extent required by applicable Legal Requirements, the State
in
which the Real Property
is
located, and (b)
is
authorized
to
execute this Agreement and consummate the Transaction and fulfill all
of
its obligations hereunder and under all Closing Documents to
be
executed by Buyer and such instruments, obligations and actions are valid and legally binding upon Buyer, enforceable
in
accordance with their respective terms. The execution and delivery
of
this Agreement and all Closing Documents
to
be
executed
by
Buyer
and
the
performance
of
the
obligations
of
Buyer
hereunder
or
thereunder
will
not (x) result
in
the violation
of
any Legal Requirement
or
any provision
of
Buyer’s organizational documents, (y) conflict with any order
of
any court or governmental instrumentality binding upon Buyer,
or
(z) conflict
or
be
inconsistent with,
or
result
in
any default under, any contract, agreement
or
commitment to which Buyer
is
bound.
7.1.2
Buyer’s Financial Condition
. No petition has been filed by
or
against Buyer under the Federal Bankruptcy Code or any similar Legal
Requirements.
7.1.3
Patriot Act Compliance
. Buyer
is
not acting, directly
or
indirectly for, or
on
behalf of, any person, group, entity
or
nation named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to
Commit,
or
Support Terrorism)
or
the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,”
or
other banned
or
blocked person, group,
entity,
or
nation pursuant to any Legal Requirement that
is
enforced
or
administered by the Office
of
Foreign Assets Control, and Buyer
is
not engaging
in
this Transaction, directly
or
indirectly,
on
behalf of,
or
instigating
or
facilitating this Transaction, directly
or
indirectly,
on
behalf of,
any
such person, group, entity
or
nation. Buyer
is
not engaging
in
this Transaction, directly
or
indirectly,
in
violation
of
any Legal Requirements relating to drug trafficking, money laundering
or
predicate crimes to money laundering. None
of
the funds
of
Buyer have been
or
will
be
derived from any unlawful activity with the result that the investment
of
direct or indirect equity owners
in
Buyer
is
prohibited by Legal Requirement or that the Transaction
or
this Agreement
is
or
will
be in
violation
of
Legal Requirement. Buyer has and will continue
to
implement procedures, and has consistently and will continue
to
consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct
at
all times prior to Closing. Notwithstanding the foregoing,
in no
event shall Buyer’s representations and warranties under this
Section
7.1.3
apply
to
any person
or
entity which owns, has owned,
or
may hereafter own any publicly traded stock or other publicly traded securities
of
(a) Buyer (if any),
or
(b) any entity which directly
or
indirectly owns an interest
in
Buyer.
7.1.4
ERISA
. Buyer
is
not an employee pension benefit plan subject to the provisions
of
Title IV
of
ERISA
or
subject to the minimum funding standards under Part 3, Subtitle B, Title I
of
ERISA
or
Section 412
of
the Internal Revenue Code
or
Section 302
of
ERISA, and none
of
its assets constitutes
or
will constitute assets
of
any such employee benefit plan subject to Part 4, Subtitle B, Title I
of
ERISA. Buyer
is
not a “governmental plan” within the meaning
of
Section 3(32)
of
ERISA and the funds used by Buyer
to
acquire the Property are not subject to State statutes regulating investments
of
and fiduciary obligations with respect to governmental
plans.
Buyer’s representations and warranties
in
this section shall survive the Closing and not
be
merged
therein.
7.2
Seller’s Representations
. Seller represents and warrants to
Buyer
as
follows:
7.2.1
Seller’s Authorization
. Seller (a)
is
duly organized (or formed), validly existing and
in
good
standing under the Legal Requirements
of
its State
of
organization and, to the extent required by applicable Legal Requirements, the State
in
which the Real Property
is
located, and (b)
is
authorized
to
execute this Agreement and, subject to obtaining the Required Governmental Approvals, consummate the Transaction and
fulfill
all
of
its obligations hereunder and under all Closing Documents to
be
executed by Seller and such instruments, obligations and actions are valid and legally binding upon Seller, enforceable
in
accordance with their respective terms. The execution and delivery
of
this Agreement and all Closing Documents
to
be
executed by Seller and the performance
of
the obligations
of
Seller hereunder
or
thereunder will not (x) result
in
the violation
of
any Legal Requirements
or
any provision
of
Seller’s organizational documents, (y) conflict with any order
of
any court
or
governmental instrumentality binding upon Seller,
or
(z) conflict or be inconsistent with, or result in any default under, any contract, agreement or commitment to which Seller is bound.
7.2.2
Seller’s Financial Condition; Operator Financial Condition
. No petition has been filed by Seller, nor has Seller received written notice
of
any petition filed against Seller under the Federal Bankruptcy Code
or
any similar Legal Requirements. To Seller’s Knowledge, except as disclosed
on
Exhibit J
,
no
petition has been filed by
any
Operator, nor has any Operator received written notice
of
any petition filed against any Operator under the Federal Bankruptcy Code
or
any similar Legal
Requirements.
7.2.3
Patriot Act Compliance
. Seller
is
not acting, directly
or
indirectly for,
or on
behalf of, any person, group, entity
or
nation named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to
Commit,
or
Support Terrorism)
or
the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,”
or
other banned
or
blocked person, group,
entity,
or
nation pursuant to any Legal Requirement that
is
enforced
or
administered by the Office
of
Foreign Assets Control and Seller
is
not engaging
in
this Transaction, directly
or
indirectly,
on
behalf of,
or
instigating
or
facilitating this Transaction, directly
or
indirectly,
on
behalf of, any such person, group, entity
or
nation. Seller
is
not engaging
in
this Transaction, directly
or
indirectly,
in
violation
of
any Legal Requirements relating
to
drug trafficking, money laundering
or
predicate crimes
to
money laundering. None
of
the funds
of
Seller have been
or
will
be
derived from any unlawful activity with the result that the investment
of
direct
or
indirect equity owners
in
Seller
is
prohibited by Legal Requirement
or
that the Transaction
or
this Agreement
is
or
will be
in
violation
of
Legal Requirement. Seller has and will continue
to
implement procedures, and has consistently and will continue
to
consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct
at
all times prior to Closing. Notwithstanding the foregoing,
in
no
event
shall
Seller’s
representations
and
warranties
under
this
Section 7.2.3
apply
to
any person
or
entity which owns, has owned,
or
may hereafter own any publicly traded stock
or
other publicly traded securities
of
(a) Seller (if any),
or
(b) any entity which directly
or
indirectly owns an interest
in
Seller.
7.2.4
Third-Party Rights
. Seller has not entered into any agreements currently
in
effect pursuant to which Seller has granted any rights
of
first refusal
to
purchase all
or
any part
of
the Property, options to purchase all
or
any part
of
the Property
or
other rights whereby any individual
or
entity has the right to purchase all
or
any part
of
the Property.
7.2.5
Litigation
. To Seller’s Knowledge, as
of
the Effective Date, except as listed
in
Exhibit J
attached hereto, Seller has not received any written notice
of
any current or pending
litigation against Seller
or
relating
to
the Property
(including, without
limitation, any condemnation proceedings) which would, in the reasonable judgment of Seller, adversely affect the Property.
7.2.6
Contracts
.
As
of
the Effective Date, Seller has not entered into or assumed any contracts, equipment leases
or
other agreements affecting the Property which will
be
binding upon Buyer after the Closing other than (a) the Operating Lease and (b) liens, encumbrances, covenants, conditions, restrictions, easements and other matters
of
record.
7.2.7
Operating Lease Defaults
. To Seller’s Knowledge, as
of
the Effective Date, except for defaults cured
on or
before the Effective Date and except as listed
in
Exhibit J
attached hereto,
(i)
Seller has not received any written notice
of
a default
by
Seller under the terms
of
the Operating Lease, and (ii) Seller has not sent
to
Operator any written notice alleging
or
asserting that Operator
is in
default under the Operating Lease. Except as otherwise disclosed,
to
Seller’s Knowledge, all Operating Leases are
in
good
standing and fully enforceable
in
accordance with their
terms.
7.2.8
Legal Violations
. To Seller’s Knowledge, as
of
the Effective Date, except for violations cured
or
remedied
on or
before the Effective Date and except as listed in
Exhibit J
attached hereto, Seller has not received any written notice from
any
Governmental Authority
of
any violation
of
any Legal Requirement applicable to the Property (including, without limitation, any Legal Requirement related to the environmental condition
of
the Real
Property).
7.2.9
Condition
of
the Property
. Seller has not received any written notice during the twelve (12) months prior to the date
of
this Agreement from any insurance company which has issued a policy with respect to the Property
or
from any board
of
fire underwriters (or other body exercising similar functions) claiming any defects or deficiencies
in
the Property
or
suggesting
or
requesting the performance
of
any repairs, alterations
or
other work to the Property. Seller has not received any written notice that either
of
the sewage
or
any waste water systems, life safety systems, incinerators or the heating
or
air conditioning equipment located on the Property violate any applicable federal, state, commonwealth
or
municipal laws, ordinances, orders, regulations
or
requirements.
7.2.10
Financial Materials
. Seller has provided
to
Buyer, to Seller’s Knowledge, true and correct copies
of
the financial statements with respect to the Facility for the calendar year ending December 31, 2018, which were prepared by and delivered
to
Seller by the
Operator.
7.2.11
Special Assessments
. To Seller’s Knowledge, as
of
the Effective Date, except as disclosed
in
the Title Commitments and except as listed
in
Exhibit J
attached hereto, Seller has not received any written notice from any governmental agency
of
any pending
or
threatened special assessments affecting the Property. To Seller’s Knowledge, as
of
the Effective Date, except as disclosed
in
the Title Commitments, there are
no
tax abatements, phase-ins
or
exemptions affecting the
Property.
7.2.12
Personal
Property. Except as set forth
in
Exhibit J
attached hereto, the Personal
Property
to
be
transferred
to
Buyer
is
free
and
clear
of
liens,
security
interests and other encumbrances arising
by,
through
or
under Seller, except as a result
of
instruments securing a loan that shall
be
paid
in
full by Seller at or prior to Closing.
7.2.13
Brokers
. Seller represents and warrants that
it
has not
dealt
with any broker
or
finder
which
is
entitled
to
a real estate commission as a result
of
this transaction other than Seller’s Broker, whose fees shall
be
paid by
Seller.
7.3
General
Provisions
.
7.3.1
Seller’s Warranties Deemed Modified
. To the extent that Buyer
is
deemed to know prior to the expiration
of
the Due Diligence Period that Seller’s Warranties are inaccurate, untrue
or
incorrect
in
any way, such Seller’s Warranties shall be deemed modified
to
reflect Buyer’s deemed
knowledge.
7.3.2
Breach
of
Warranties prior to Closing
.
If
after the expiration
of
the Due Diligence Period but prior to the Closing, either Buyer
or
Seller obtains actual knowledge that any
of
the representations
or
warranties made herein are untrue, inaccurate
or
incorrect
in
any material respect, such party shall give the other party written notice thereof within five (5) Business Days
of
obtaining such knowledge (but,
in
any event, prior to the Closing). In the event
of
any breach
of
a Seller’s Warranty, Seller shall have the right to cure such misrepresentation
or
breach and shall
be
entitled
to
a reasonable extension
of
the Scheduled Closing Date (not to exceed thirty (30) days) for purposes
of
such cure. The untruth, inaccuracy
or
incorrectness
of
Seller’s Warranties shall be deemed material for all purposes
of
this Agreement only if Buyer’s aggregate damages resulting from the untruth, inaccuracy
or
incorrectness
of
Seller’s Warranties are reasonably estimated
to
exceed $25,000.00.
If
any
of
Seller’s Warranties are untrue, inaccurate
or
incorrect
but
are not,
in
the aggregate, untrue, inaccurate
or
incorrect
in
any
material respect as set forth herein, Buyer shall
be
deemed to waive such misrepresentation
or
breach
of
warranty, and Buyer shall be required
to
consummate the Transaction without any reduction
of or
credit against the Purchase
Price.
7.3.3
Survival; Limitation
on
Seller’s Liability
. Seller’s Warranties shall survive the Closing and not
be
merged therein for a period
of
six (6) months and Seller shall only be liable
to
Buyer
hereunder for a breach
of
a Seller’s Warranty with respect to which Seller receives a written notice
of
a claim from Buyer
on
or before the six month anniversary
of
the Closing Date. Notwithstanding the foregoing, however,
if
the Closing occurs, Buyer hereby expressly waives, relinquishes and releases any rights
or
remedies available
to
it
at
law, in
equity, under this Agreement
or
otherwise, including any claim against Seller for damages that
Buyer
may incur, as the result
of
any
of
Seller’s Warranties being untrue, inaccurate or incorrect
if
(a) Buyer
is
deemed
to
know that any Seller’s
Warranties
were
untrue,
inaccurate
or
incorrect
at
the
time
of
the
Closing,
or
(b) the untruth, inaccuracy
or
incorrectness
of
such Seller’s Warranties
is
not material, when considered
in
the aggregate, or (c) Buyer fails to deliver to Seller a written notice
of
any alleged inaccuracy
or
breach
of
any Seller’s Warranty (which notice, to
be
effective for purposes
of
this provision, must set forth the specific Seller’s Warranty allegedly breached and a reasonable description
of
the factual basis upon which Buyer asserts such breach)
on or
before the expiration
of
the foregoing survival period;
or
(d) within six (6) months after the expiration
of
the time frame provided
in
clause (c)
,
Buyer
fails
to
commence legal proceedings against Seller with respect to any claim timely made pursuant to
clause (c)
.
7.3.4
Survival
. The provisions
of
this
Section 7.3
shall survive the Closing (and not
be
merged therein)
or
any earlier termination of this
Agreement.
ARTICLE 8 -
COVENANTS
8.1
Buyer Permits; Notices and
Consents
.
8.1.1
Buyer will submit its applications for Buyer Permits within ten (10) days prior to the expiration
of
the Due Diligence Period and, thereafter, will diligently pursue its efforts,
in
good
faith, to obtain all Buyer Permits, and
to
make
all filings (including those with Governmental Authorities), as may be required to
be
obtained
or
filed
by
Buyer
in
connection with the consummation
of
the transactions contemplated hereunder. Seller shall provide Buyer with such information as Buyer may reasonably request in connection with Buyer’s efforts to obtain such
consents.
8.1.2
Buyer and Seller shall each cooperate with, and do all things reasonably practicable
to
assist, one another: (i)
in
the prompt preparation and filing
of
all required, proper
or
advisable filings
to
be made in
connection with obtaining the Buyer Permits
or
Transfer Approvals required
in
connection with the consummation
of
the transaction contemplated hereunder as soon as practical following the Effective Date, and the parties shall cooperate with, and do all things reasonably practicable
to
assist each other
in
connection with the making
of
all such filings; (ii)
in
determining whether action by
or
in
respect of,
or
filing
with, any governmental authority
is
required, proper or advisable;
and (iii)
in
seeking
to
timely obtain the Buyer Permits and Transfer Approvals
or
to make
any
such filings. The parties shall keep each other apprised
of
the status
of
any
communications with, and any inquiries
or
requests for additional information from
any
applicable governmental authority with respect to any Buyer Permits
or
Transfer Approvals and related audits, inspections, reviews
or
investigations, and shall comply promptly with any such inquiry
or
request and shall promptly provide any supplemental information requested
in
connection with the filings made hereunder pursuant to any other applicable
Laws.
8.1.3
Notwithstanding the generality
of
the foregoing, neither Buyer nor Seller shall be required
to
make payments
or
incur
any other liability
to
secure the Transfer Approvals
or
Buyer Permits, except for the payment by Buyer
of
legal fees and customary fees and charges imposed by the applicable Government Authority
in
order to obtain the Buyer Permits and Transfer
Approvals.
8.1.4
Seller shall, at Seller’s cost, timely file and submit all Transfer
Notices.
8.2
Contracts, Title Instruments, and
Leases
.
8.2.1
Without Buyer’s prior consent, between the Effective Date and the Closing Seller shall not
(i)
enter into any new service contract or agreement or lease that will be binding
on
Buyer after Closing,
or
(ii)
execute any instrument which affects title to
the
Property,
or
(iii)
modify
the
Operating
Lease
(except
pursuant
to
the
exercise
by
Operator
of
a renewal
or
other right contained
in
the Operating Lease). Seller shall furnish Buyer with a copy
of
the proposed agreement which shall contain such information reasonably necessary
to
enable Buyer to
make
informed decisions with respect to the advisability
of
the proposed transaction. If Buyer fails
to
object
in
writing to any such agreement within three (3) Business Days after receipt thereof, Buyer shall
be
deemed
to
have
approved the terms
of
the proposed transaction. Buyer’s consent shall not
be
unreasonably withheld, conditioned
or
delayed with respect
to
any such transaction that
is
proposed prior to the expiration
of
the Due Diligence Period. Buyer,
in
its sole and absolute
discretion, shall be entitled to grant
or
withhold its consent with respect to any such transaction that
is
proposed between the expiration
of
the Due Diligence Period and the Closing. Any notice from Buyer rejecting the proposed transaction shall include a description
of
the reasons for Buyer’s
rejection.
8.2.2
Seller shall have the right, but not the obligation, to enforce the rights and remedies
of
the landlord under the Operating Lease
in
a manner consistent with its past practices, including without limitation, to apply all or any portion
of
any security deposits then held by Seller toward any loss
or
damage incurred by Seller by reason
of
any
defaults by tenants, and the exercise
of
any such rights
or
remedies shall not
affect
the obligations
of
Buyer under this Agreement or entitle Buyer to a reduction
in,
or
credit
or
allowance against, the Purchase Price
or
give
rise
to
any other claim
on
the part
of
Buyer.
8.3
Operation and Maintenance
of
Property
. Except to the extent Seller
is
relieved
of
such
obligations
by
Article 10
, between the Effective Date and the Closing, Seller shall operate and maintain the Property
in
a manner consistent with Seller’s past practices with respect to the Property. Buyer hereby agrees that, except for breaches
of
this
Section 8.3
, Buyer, shall accept the Property subject to, and Seller shall have
no
obligation
to
cure, (a) any violations
of
Legal Requirements,
or
(b) any physical conditions which would give rise
to
violations
of
Legal Requirements, whether the same now exist
or
arise prior to Closing. Between the Effective Date and the Closing, Seller will advise Buyer
of
any written notice Seller receives after the Effective Date from any Governmental Authority
of
the violation
of
any Legal Requirements regulating the condition
or
use
of
the
Property.
8.4
Brokers
. Seller and Buyer expressly acknowledge that Seller’s Broker has acted as the exclusive broker with respect to the Transaction and with respect
to
this Agreement. Seller shall pay any brokerage commission due to Seller’s Broker
in
accordance with the separate agreement between Seller and Seller’s Broker. Seller agrees
to
hold
Buyer harmless and indemnify Buyer from and against any and all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) suffered
or
incurred by Buyer as a result
of
any claims
by
Seller’s Broker or any other party claiming
to
have represented Seller as broker
in
connection with the Transaction. Buyer agrees to
hold
Seller harmless and indemnify Seller from and against any and all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) suffered
or
incurred by Seller as a result
of
any claims by any party claiming
to
have represented Buyer as broker
in
connection with the Transaction. The provisions
of
this section shall survive the Closing (and not
be
merged therein)
or
the earlier termination
of
this
Agreement.
8.5
Tax Protests; Tax Refunds and Credits
. Seller shall have the right to control the progress
of
and
to
make
all decisions with respect to any contest
of
the real estate taxes and personal property taxes for the Property due and payable during the tax year
in
which
Closing occurs (the “
Closing Tax Year
”) and all tax years prior to the Closing
Tax
Year, provided Seller shall keep Buyer reasonably informed regarding the status
of
any contest with respect to the taxes attributable
to
the Closing Tax Year. Buyer shall have the right to control the progress
of
and
to
make
all decisions with respect to any contest
of
the real estate taxes and personal property taxes for the Property due and payable during all years subsequent to the Closing
Tax
Year. To the extent any real estate
or
personal property tax refunds
or
credits are received after Closing with respect to the Property and such refunds
or
credits are attributable
to
real estate and personal property taxes paid for any tax year prior to the Closing Tax Year, Seller shall
be
entitled
to
the entirety
of
such refunds and credits (except to the extent due
to
any past
or
present tenant
of
the Property). To the extent any such refunds
or
credits are attributable
to
real estate and personal property taxes paid during the Closing Tax Year, such amounts shall be prorated between the parties
in
the manner provided
in
Section
5.2
, less costs incurred
in
obtaining such refund
or
credit and any amounts due
to
any past or present tenant
of
the Property. The provisions
of
this section shall survive the Closing (and not
be
merged
therein).
8.6
Publicity
. Seller and Buyer each hereby covenant and agree that (a) prior to the Closing neither Seller nor Buyer shall issue any press release
or
similar public statement with respect to the Transaction
or
this Agreement (a “
Press Release
”) without the prior consent
of
the other, except to the extent required by applicable Legal Requirement, and (b) after the Closing, any Press Release issued by either Seller
or
Buyer shall
be
subject to the review and approval
of
both parties (which approval shall not
be
unreasonably withheld, conditioned
or
delayed and such response shall
be
provided within two (2) Business Days after submission
of
a draft
of
the Press Release
to
the other party for review), except to the extent required by applicable Legal Requirement. If either Seller
or
Buyer
is
required by applicable Legal Requirement to issue a Press Release, such party shall, at
least
two (2) Business Days prior to the issuance
of
the same, deliver a
copy
of
the proposed Press Release to the other party for its review. The provisions
of
this section shall survive the Closing (and not
be
merged therein)
or
the earlier termination
of
this
Agreement.
8.7
Confidentiality.
8.7.1
Buyer shall hold, and shall cause the other Buyer’s Representatives and any prospective investors
in
Buyer to
hold in
strict confidence and not disclose
to
any other person without the prior written consent
of
Seller:
(i)
the terms
of
this
Agreement, (ii) unless and until the Closing occurs, any
of
the information
in
respect
of
the Property delivered
or
made available
to
any Buyer’s Representatives, and (iii) the identity
of
any
direct or indirect owner
of
any beneficial interest
in
Seller. In the event the Closing does not occur
or
this Agreement
is
terminated,
Buyer
shall promptly return to Seller all copies
of
documents containing any
of
such information without retaining any
copy
thereof
or
extract therefrom. Buyer hereby agrees to indemnify, defend, and hold each
of
the Seller Parties free and harmless from and against any and all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) arising out
of or
resulting from the breach
of
the terms
of
this
section.
8.7.2
Seller shall hold, and shall cause the officers, directors, employees, agents and representatives
of
Seller to hold,
in
strict confidence and not disclose to any other person
without
the
prior
written
consent
of
Buyer,
(i)
the
terms
of
this
Agreement,
and (ii) the identity of Buyer and any direct or indirect owner of any beneficial interest in Buyer.
8.7.3
Notwithstanding anything
to
the contrary hereinabove set forth, each party may disclose information which
is
otherwise required by the foregoing
to
be
kept confidential (i)
on
a need-to-know basis
to
its affiliates, the employees
of
such party
or
its affiliates, members
of
professional firms serving such party
or
its affiliates,
or
lenders,
or
(ii) as any Governmental Authority may require in order to comply with applicable Legal Requirements or a court order, or (iii) to the extent that such information is a matter of public record, or (iv) in connection with any dispute or litigation between the parties.
8.7.4
The provisions
of
this section shall survive the Closing (and not
be
merged therein)
or
earlier termination
of
this
Agreement.
8.8
Declaration Estoppels
.
If
prior to the expiration
of
the Due Diligence Period Buyer requests an estoppel certificate with respect to any reciprocal easement agreement, declaration,
or
other covenant or restriction encumbering the Real Property, Seller shall cooperate with Buyer
in
promptly delivering
to
the appropriate parties
to
such an agreement an estoppel certificate
in
a form reasonably requested by Buyer. After delivery
of
any requested estoppel certificates to the applicable parties, Seller shall use commercially
reasonable efforts to assist Buyer
in
obtaining executed copies
of
the same;
provided
,
however
,
in no
event shall
Seller be required by the foregoing
to
pay any sums (or
incur
any other liability) to any party in connection with its attempts to obtain such estoppel certificates. Notwithstanding any provision contained
in
this Agreement to the contrary,
it
shall not
be
a condition to Buyer’s obligations hereunder that any such estoppel certificates are obtained unless expressly agreed
to
by Seller in writing prior to the expiration
of
the Due Diligence
Period.
ARTICLE 9 -
DEFAULTS
9.1
Seller’s Remedies for Buyer Defaults
. If, (i) on the Scheduled Closing Date Buyer fails to deliver the balance
of
the Purchase Price
in
accordance with
Sections 2.3
and
6.1
, and
fails
to
cure
the
same
within
two
(2)
Business
Days
after
the
Scheduled
Closing
Date,
or
(ii)
on or
before the Scheduled Closing Date Buyer
is in
default
of
any
of
its other material obligations hereunder
or
any
of
Buyer’s representations
or
warranties are,
in
the aggregate, untrue, inaccurate
or
incorrect
in
any material respect, and any such circumstance described
in
this
clause (ii)
continues for five (5) Business Days after written notice (which written notice shall detail such default
or
breach), then Seller shall have the right to elect as its sole and exclusive remedy, to (a) terminate this Agreement by written notice
to
Buyer, promptly after which the Deposit shall
be
paid
to
Seller as liquidated damages and, thereafter, the parties shall have
no
further rights
or
obligations hereunder except for obligations which expressly survive the termination
of
this Agreement,
or
(b) waive the default
or
breach and proceed to close the Transaction. Seller and Buyer have discussed the possible consequences
to
Seller
in
the event that the Closing does not occur by reason
of
any
of
the events described
in
this section. The parties agree that
it
would
be
impractical
or
extremely difficult
to
determine the actual damages to Seller
in
such event and that a reasonable estimate
of
such damages
is
an amount equal
to
the Deposit.
9.2
Buyer’s Remedies for Seller Defaults
.
If,
on or
before the Scheduled Closing Date,
Seller
is
in
default
of
any
of
its
material
obligations
hereunder,
or
any
of
Seller’s
Warranties are,
in
the aggregate, untrue, inaccurate
or
incorrect
in
any material respect, and
any
such circumstance described
in
this sentence continues for five (5) Business Days after written notice (which written notice shall detail such default
or
breach), then Buyer shall have the right to elect, as its sole and exclusive remedy,
to
(a) terminate this Agreement by written notice
to
Seller, promptly after which the Deposit shall be returned to Buyer and Seller shall pay Buyer
an
amount equal
to
the actual out-of-pocket costs and expenses incurred by Buyer
in
connection with the transactions contemplated herein,
in
an amount not to exceed $100,000, and, thereafter, the parties shall have
no
further rights
or
obligations hereunder except for obligations which expressly survive the termination
of
this Agreement,
or
(b) waive the default
or
breach and proceed to close the Transaction,
or
(c) seek specific performance
of
this Agreement by Seller. As a condition precedent to Buyer exercising any right
it
may have
to
bring
an action for specific performance hereunder, Buyer must commence such an action within ninety (90) days after the occurrence
of
Seller’s default. Buyer agrees that its failure to timely commence such an action for specific performance within such ninety (90) day period shall
be
deemed a waiver by
it
of
its right to commence an action for specific performance as well as a waiver by
it
of
any right
it
may have
to
file
or
record a notice
of
lis pendens
or
notice
of
pendency
of
action
or
similar notice against any portion
of
the
Property.
9.3
Indemnity Obligations
. Notwithstanding any provision
in
this Agreement to the contrary,
in no
event shall the provisions
of
this
Article 9
limit
the rights
of
either party against the other party due to the other party’s obligation to indemnify such party
in
accordance with this Agreement
or
the damages recoverable pursuant to such indemnification obligations. This section shall survive the Closing (and not
be
merged therein)
or
the earlier termination
of
this Agreement.
ARTICLE 10 - CASUALTY/CONDEMNATION
10.1
Right to Terminate
. If, after the Effective Date, (a) any portion
of
the Property is taken by condemnation
or
eminent domain (or
is
the subject
of
a pending taking),
or
(b) any portion
of
the Property
is
damaged
or
destroyed (excluding routine wear and tear and damage caused by any Buyer’s Representative), Seller shall notify Buyer
in
writing
of
such fact promptly after obtaining knowledge thereof.
If
the Property
is
the subject
of
a Major Casualty/Condemnation (as hereinafter defined) that occurs after the Effective Date,
Buyer
shall have the right to terminate this Agreement by giving written notice
to
Seller
no
later than
ten
(10) Business Days after the giving
of
Seller’s notice, and the Scheduled Closing Date shall be extended,
if
necessary, to provide sufficient time for Buyer to
make
such election. The failure by Buyer to terminate this Agreement within such ten (10) Business Day period shall
be
deemed an election not to terminate this Agreement. If this Agreement
is
terminated pursuant to
this section, the Deposit shall be returned to Buyer and, thereafter, the parties shall have
no
further rights
or
obligations hereunder except for obligations which expressly survive the termination
of
this Agreement. For the purposes
of
this Agreement, “
Major Casualty/Condemnation
” shall mean any casualty, condemnation proceedings,
or
eminent domain proceedings
if
(i) the portion
of
the Property that
is
the subject
of
such casualty
or
such condemnation
or
eminent domain proceedings has a value
in
excess
of
five percent (5%)
of
the Purchase Price, as reasonably determined by an independent contractor, architect or engineer selected by Seller and reasonably approved by Buyer,
or
(ii)
any casualty
is
an uninsured casualty and Seller,
in
its sole and absolute discretion, does not elect to cause the damage
to
be
repaired
or
restored or
give
Buyer a credit
at
Closing for such repair
or
restoration.
10.2
Allocation
of
Proceeds and Awards
. If a condemnation
or
casualty occurs after the Effective Date and this Agreement
is
not terminated as permitted pursuant to the terms
of
Section 10.1
, then this Agreement shall remain
in
full force and effect, Buyer shall acquire the remainder
of
the Property upon the terms set forth herein. Any awards
or
proceeds from the condemning authority
or
Seller’s insurance company, as the case may be (the “
Casualty/Condemnation Proceeds
”) shall
be
allocated between Buyer and Seller as follows: (a) Seller shall be entitled
to
be
reimbursed from the Casualty/Condemnation Proceeds for (i) all costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Seller
in
connection with negotiating the settlement
of
such award
or
proceeds, (ii) proceeds
of
any rental loss, business interruption
or
similar insurance,
or
other compensation for loss
of
use
or
income, that are allocable
to
the period prior to the Closing Date, and (iii) the reasonable and actual costs incurred by Seller
in
physically stabilizing the Property following a casualty; and (b) Buyer shall
be
entitled to
(i)
the balance
of
the Casualty/Condemnation Proceeds, and (ii) a credit from Seller equal
to
Seller’s deductible with respect to a casualty,
if
the same
is
an insured
casualty.
10.3
Insurance
. Seller shall maintain the property insurance coverage currently in effect for the Property, or comparable coverage, through the Closing
Date.
10.4
Waiver
. The provisions
of
this
Article 10
supersede the provisions
of
any applicable Legal Requirements with respect to the subject matter
of
this
Article
10
.
ARTICLE 11 - MISCELLANEOUS
11.1
Buyer’s
Assignment.
11.1.1
Buyer shall not assign this Agreement
or
its rights hereunder without the prior written consent
of
Seller, which consent Seller may grant
or
withhold
in
its sole and absolute discretion, and any such attempted assignment shall
be
null and void
ab initio
. Any transfer, directly
or
indirectly,
of
any stock, partnership interest
or
other ownership interest
in
Buyer shall constitute an assignment
of
this Agreement;
provided
,
however
, the foregoing shall not
be
construed to
prohibit
the transfer
of
stock
in
a publicly traded company. Notwithstanding the foregoing terms
of
this
paragraph (a)
, Buyer shall have the right to assign this Agreement to any
entity wholly-owned and controlled by MED Healthcare, without Seller’s prior consent, provided that such assignment complies
with
the terms
of
paragraph (b)
of
this
section.
11.1.2
In the event Buyer intends
to
assign its rights hereunder, Buyer shall send Seller written notice
of
its request at least ten (10) Business Days prior to the Scheduled Closing Date, which notice shall include the legal name and structure
of
the proposed assignee and Buyer shall provide Seller any other information that Seller may reasonably request with respect to the proposed assignee. Notwithstanding any provision
in
this Agreement to the
contrary:
(a)
Any permitted assignment by Buyer shall not relieve Buyer
of
any
of
its obligations and liabilities hereunder, nor shall any such assignment alter, impair
or
relieve such assignee from the waivers, acknowledgements
and
agreements of Buyer set forth herein, including those set forth in
Section 4.2
,
Article 7
and
Article 8
, all of which will be binding upon any assignee of Buyer.
(b)
No transfer by Buyer
of
any interest
in
this Agreement and
no
transfers
of
direct
or
indirect interests
in
Buyer shall be permitted
if
the same would cause the representations and warranties made
in
Section 7.1
to
be
untrue, inaccurate
or
incomplete and Buyer covenants to cooperate with Seller’s requests to provide the information and other documentation reasonably necessary
or
desirable for Seller to verify that such representations and warranties are true, accurate and complete at all times prior to Closing. If Buyer fails
to
provide the requested documentation
to
Seller at least ten (10) Business Days prior
to
the Scheduled Closing Date, then Seller shall have the right, at its election, to postpone the Scheduled Closing Date for a reasonable period until such verification has been
made.
11.2
Survival/Merger
. Except for the provisions
of
this Agreement which are explicitly stated to survive the Closing, (a) none of the terms
of
this Agreement shall survive the Closing, and (b) the
delivery
of
the Purchase Price, the Deed and the other Closing Documents and the acceptance thereof shall effect a merger, and
be
deemed the full performance and discharge
of
every obligation
on
the part
of
Buyer and Seller
to
be
performed
hereunder.
11.3
Integration; Waiver
. This Agreement embodies and constitutes the entire understanding between the parties with respect to the Transaction and all prior agreements, understandings, representations and statements, oral
or
written, are merged into this Agreement. Neither this Agreement nor any provision hereof may
be
waived, modified, amended, discharged
or
terminated except by an instrument 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.
No waiver
by either party hereto
of
any failure
or
refusal by the other party
to
comply with its obligations hereunder shall
be
deemed a waiver
of
any other
or
subsequent failure
or
refusal
to
so
comply.
11.4
Governing Law
. This Agreement shall be governed
by,
and construed
in
accordance with, the
law
of
the
State
in
which the Real Property
is
located.
11.5
Captions Not Binding; Exhibits
. The captions
in
this Agreement are inserted for reference only and
in
no
way limit the scope or intent
of
this Agreement or
of
any
of
the provisions hereof. All Exhibits attached hereto shall
be
incorporated by reference as if set out herein
in
full.
11.6
Binding Effect
. This Agreement shall
be
binding upon and shall inure
to
the benefit
of
the parties hereto and their respective successors and permitted
assigns.
11.7
Severability
.
If
any term
or
provision
of
this Agreement
or
the application
thereof to any persons
or
circumstances shall, to any extent,
be
invalid
or
unenforceable, the remainder
of
this Agreement or the application
of
such
term or
provision
to
persons
or
circumstances other than those as
to
which
it is
held
invalid
or
unenforceable shall not
be
affected thereby, and each term and provision
of
this Agreement shall
be
valid and enforced
to
the fullest extent permitted by
law.
11.8
Notices
. Any notices
or
other communications under this Agreement
must be
in writing, and shall be deemed duly given
or
made
at the time and
on
the date when received by e-mail transmittal
of
pdf files
or
similar electronic means
or
when personally delivered as shown
on
a receipt therefor (which shall include delivery by a nationally recognized overnight delivery service) to the address for each party set forth below. Attorneys for each party may give notices
on
behalf
of
the party that they represent. Any party, by written notice
to
the other
in
the manner herein provided, may designate an address different from that
set
forth
below.
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IF TO BUYER
:
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ATTALLA REALTY LLC,
COLLEGE PARK REALTY LLC,
QUAIL CREEK REALTY LLC,
NORTHWEST REALTY LLC,
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34 Lord Avenue
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Lawrence, NY 11559
Attention: Mordy Lahasky
Telephone #: (646) 772-3668
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E-Mail Address: mordyeph@gmail.com
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COPY TO
:
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Gutnicki LLP
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4711 Golf Road, Suite 200
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Skokie, IL 60076 Attention: Stacy Flanigan
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Telephone #: (847) 745-6936
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E-Mail Address: sflanigan@gutnicki.com
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IF TO SELLER
:
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c/o Regional Health Properties, Inc.
454 Satellite Boulevard, NW
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Suite 100
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Suwanee, GA 30024
Attention: Brent Morrison
Telephone #: (678) 368-4402
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E-Mail Address:
brent.morrison@regionalhealthproperties.com
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COPY TO:
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Alston & Bird LLP
1201 W Peachtree
Street
Atlanta, GA 30309
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Attention: William S. Sugden
Telephone #: (404) 881-4778
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E-Mail Address: will.sugden@alston.com
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11.9
Counterparts; Electronic Signatures
. This Agreement may
be
executed
in
counterparts, each
of
which
shall
be
an original and all
of
which counterparts taken together shall constitute one and the same agreement. Signatures
to
this Agreement transmitted by electronic means shall
be
valid and effective
to
bind
the party so signing. Each party agrees
to
promptly deliver an execution original
to
this Agreement with its actual signature to the other party, but a failure to
do
so
shall not affect the enforceability
of
this
Agreement.
11.10
No Recordation
. Seller and Buyer each agrees that neither this Agreement nor any memorandum
or
notice hereof shall
be
recorded and Buyer agrees not to file any notice
of
pendency
or
other instrument
against
the Property
or
any portion thereof
in
connection herewith. Notwithstanding the foregoing, if the same
is
permitted pursuant to applicable Legal Requirements, Buyer shall be entitled
to
record a notice
of
lis pendens
if Buyer
is
entitled
to
seek (and
is
actually seeking) specific performance
of
this Agreement by Seller
in
accordance with the terms
of
Section 9.2
. Buyer agrees
to
indemnify Seller against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred by Seller by reason
of
the filing by Buyer
of
such notice
of
pendency
or
other instrument (including any
lis pendens
) if any such notice
or
lis pendens
is
not expressly permitted to
be
filed by the foregoing
or
if
Seller prevails in the underlying litigation for which any notice
or
lis pendens
is
filed, regardless
of
whether such notice
or
lis pendens
is
permitted to
be
filed. This section shall survive the Closing (and not
be
merged therein)
or
the earlier termination
of
this
Agreement.
11.11
Additional Agreements; Further Assurances
. Each
of
the parties hereto shall execute and deliver such
documents
as the other party shall reasonably request
in
order to consummate and make effective the Transaction;
provided
,
however
, the execution and delivery
of
such documents shall not result
in
any additional liability
or
cost to the executing
party.
11.12
Construction
. The parties acknowledge that each party and its counsel have reviewed and revised this
Agreement
and that the normal rule
of
construction
to
the effect that any ambiguities are
to
be
resolved against the drafting party shall not
be
employed
in
the interpretation
of
this Agreement, any modification hereof
or
any
of
the Closing Documents.
11.13
Time
of
Essence
. Time
is
of
the essence with respect to the Closing and all
of
the provisions
of
this
Agreement.
11.14
WAIVER OF JURY TRIAL
.
EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY
PROCEEDINGS
BROUGHT BY THE OTHER PARTY IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE TRANSACTION, THIS AGREEMENT, THE PROPERTY OR THE RELATIONSHIP OF BUYER AND SELLER HEREUNDER. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING (AND NOT BE MERGED THEREIN) OR ANY EARLIER TERMINATION OF THIS
AGREEMENT.
11.15
RELEASES
. WITH RESPECT TO ANY RELEASE SET FORTH IN THIS AGREEMENT
RELATING
TO UNKNOWN AND UNSUSPECTED CLAIMS, THE PARTIES HERETO HEREBY ACKNOWLEDGE THAT SUCH WAIVER AND RELEASE IS MADE WITH THE ADVICE OF COUNSEL AND WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE CONSEQUENCES AND EFFECTS OF SUCH
RELEASE.
[Remainder of page intentionally blank]
IN WITNESS WHEREOF,
each party hereto has caused this Agreement to be duly executed to be effective as of the day and year first above written.
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SELLER:
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ATTALLA NURSING ADK, LLC
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By:
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/s/ Brent Morrison
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Name:
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Brent Morrison
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Title:
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CEO
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QC PROPERTY HOLDINGS, LLC
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By:
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/s/ Brent Morrison
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Name:
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Brent Morrison
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Title:
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CEO
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NORTHWEST PROPERTY HOLDINGS, LLC
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By:
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/s/ Brent Morrison
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Name:
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Brent Morrison
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Title:
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CEO
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CP PROPERTY HOLDINGS, LLC
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By:
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/
s/ Brent Morrison
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Name:
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Brent Morrison
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Title:
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CEO
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BUYER:
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ATALLA REALTY LLC,
a Georgia limited liability company
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COLLEGE PARK REALTY LLC,
an Alabama limited liability company
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QUAIL CREEK REALITY LLC,
an Oklahoma limited liability company
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NORTHWEST REALITY LLC,
an Oklahoma limited liability company
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By:
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Epharm Lahasky
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Name:
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Epharm Lahasky
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Title:
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Authorized Signatory
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AGREEMENT OF ESCROW AGENT
The undersigned has executed this Agreement solely to confirm its agreement to hold the Escrow Deposits in escrow in accordance with the provisions and otherwise comply with the provisions of
Exhibit B
to this Agreement.
In witness whereof, the undersigned has executed this Agreement as
of
April
, 2019.
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RIVERSIDE ABSTRACT, LLC
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By:
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Name:
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Title:
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EXHIBIT A
LEGAL DESCRIPTION
Attalla
All that tract or parcel of land lying in and being a portion of the Southeast Quarter of the Southwest Quarter, Section Fifteen (15), Township Twelve (12) South, Range Five (5) East of the Huntsville, Meridian, City of Attalla of Etowah County, Alabama and being more particularly described as follows:
Commencing at the Southwest corner of Southeast Quarter of the Southwest Quarter running thence N 08°34'09" E a distance of 213.62' to a crimp top pipe found, which is the true point of beginning.
Thence N 00°29'45" E a distance of 900.78' to a an iron pin set; thence S 88°01'00" E a distance of 447.15' to a crimp top pipe found; thence S 01°54'33" W a distance of 899.97' to an iron pin set; thence N 88°05'06" W a distance of 424.93' to a crimp top pipe found, which is the true point of beginning.
Said tract or parcel of land is depicted on an ALTA/ACSM plat of survey prepared by LandPro Surveying and Mapping, Inc., dated April 8, 2010, as updated July 27, 2010, and is the same as shown on a subdivision plat for South Mont Addition to the City of Attalla recorded in Plat book E, Pages 230-233 and being Lots 9-44 and 62-97 of Block H, Probate Office, Etowah County, Alabama.
College Park
ALL THAT TRACT OR PARCEL OF LAND LYING IN AND BEING IN LAND LOT 160 OF THE 14TH DISTRICT OF FULTON COUNTY, CITY OF COLLEGE PARK, GEORGIA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A NAIL SET AT THE INTERSECTION OF THE NORTHERLY RIGHT OF WAY OF TEMPLE AVENUE (HAVING A 40 FOOT PUBLIC RIGHT OF WAY) AND THE WESTERLY RIGHT OF WAY OF JEFFERSON STREET (HAVING A 40 FOOT PUBLIC RIGHT OF WAY), SAID POINT BEING THE TRUE POINT OF BEGINNING;
THENCE ALONG THE SAID RIGHT OF WAY OF TEMPLE AVENUE N 88°10'14" W A DISTANCE OF 243.35' TO AN IRON PIN SET; THENCE LEAVING THE SAID RIGHT OF WAY AND CONTINUING N 00°55'10" E A DISTANCE OF 189.37' TO AN IRON PIN SET; THENCE S 87°59'00" E A DISTANCE OF 245.71' TO AN IRON PIN SET AT THE RIGHT OF WAY OF JEFFERSON STREET; THENCE ALONG THE SAID RIGHT OF WAY S 01°37'54" W A DISTANCE OF 188.55' TO A NAIL SET, WHICH IS THE TRUE POINT OF BEGINNING.
SAID TRACT OR PARCEL OF LAND CONTAINS 1.061 ACRES AND IS DEPICTED AS TRACT 1 ON A PLAT OF SURVEY PREPARED BY LANDPRO SURVEYING AND MAPPING, INC, DATED FEBRUARY 14, 2011.
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LEGAL02/38855357v6
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Exhibit A, Page 1
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Northwest
Lots One (1), Two (2) Three (3), Four (4) and "I" plus the West, 5 feet of vacated Ross Avenue adjacent on the East, In NORTH MAY VIEW ADDITION, to Oklahoma City, Oklahoma County, Oklahoma, according to the recorded plat thereof.
Physical Address: 2801 NW 61st Street, Oklahoma City, Oklahoma
Tax ID: 2628-09-375-1160,
plat Book/Page; 38/38
Quail Creek
The Land referred to herein below is situated in the county of Oklahoma, State of Oklahoma, and is described as follows:
LOT ONE (1), IN BLOCK ONE (1), OF ADCARE QUAIL CREEK ADDITION, TO OKLAHOMA CITY, OKLAHOMA COUNTY, OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF.
Tax ID: 214431000,
Plat book/Page: 74/63
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LEGAL02/38855357v6
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Exhibit A, Page 2
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EXHIBIT B
ESCROW PROVISIONS
The Deposit and any other sums (including, without limitation, any interest earned thereon) which the parties agree shall be held in escrow (herein collectively called the “
Escrow
Deposits
”), shall be held by the Escrow Agent, in trust, and disposed of only in accordance with the following provisions:
1.
The Escrow
Agent
shall invest the Escrow Deposits
in
government insured interest-bearing instruments reasonably satisfactory
to
both Buyer and Seller and shall promptly provide Buyer and Seller with confirmation
of
the investments
made.
Because Escrow
Agent is
not itself a bank,
it
may commingle the Escrow Deposits with other escrow deposits
in
a trust account
in
order to facilitate placing the Escrow Deposits
in
a segregated interest
bearing
account and
to
disburse the Escrow Deposits once they have been removed from said segregated interest bearing account
in
accordance with the terms
of
this Agreement, but shall not otherwise commingle the Escrow Deposits with any funds
of
the Escrow Agent
or
others.
2.
Notwithstanding any provision herein to the contrary,
if
Buyer terminates this Agreement at any time during the Due Diligence Period, Escrow Agent shall deliver the Escrow Deposits to
Buyer
upon the unilateral direction
of
Buyer, without the consent
of
Seller, provided that Escrow
Agent
shall notify Seller
in
the event of such
disbursement.
3.
After the expiration
of
the Due Diligence Period,
if
for any reason the Closing does not occur and either party makes a written demand upon the Escrow Agent for payment
of
the Escrow Deposits, the Escrow Agent shall give written notice
to
the other party
of
such demand. If the Escrow
Agent
does not receive a written objection from the other party to the proposed payment within ten (10) days after the giving
of
such notice, the Escrow Agent
is
hereby authorized
to
make
such payment.
If
the Escrow Agent receives such written objection within such period, the Escrow Agent shall continue
to
hold
such amount until otherwise directed by written instructions signed by Seller and Buyer
or
a final judgment
of
a
court.
4.
If the Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to,
or
upon the instructions of, Seller
on
the Closing
Date.
5.
The parties acknowledge that the Escrow Agent
is
acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not
be
deemed
to
be
the agent
of
either
of
the parties, and that the Escrow Agent shall not
be
liable
to
either
of
the parties for any action
or
omission
on
its part taken
or
made
in
good
faith, and not
in
disregard
of
this Agreement, but shall
be
liable for any Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred by Seller
or
Buyer resulting from actions
or
omissions taken
or
made by the Escrow Agent
in
bad faith,
in
disregard
of
this Agreement
or
involving negligence
on
the part
of
the Escrow Agent. Seller and Buyer shall jointly and severally indemnify and hold the Escrow
Agent
harmless from and against all Liabilities (including reasonable attorneys’ fees, expenses and disbursements) incurred
in
connection with the performance
of
the Escrow Agent’s duties hereunder, except with respect to actions
or
omissions taken
or
made
by the Escrow
Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.
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LEGAL02/38855357v6
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Exhibit B, Page 1
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6.
Buyer shall pay any income taxes
on
any interest earned
on
the Escrow Deposits. Buyer represents and warrants
to
the Escrow
Agent
that its
taxpayer identification number
is
[BUYER TO PROVIDE
EIN]
.
7.
Section 6045(e)
of
the United States Internal Revenue Code and the regulations promulgated thereunder (herein collectively called the “
Reporting Requirements
”) require an information return
to
be made
to
the United States Internal Revenue Service, and a statement to
be
furnished to Seller,
in
connection with the Transaction. Escrow
Agent
is
either (x) the person responsible for closing the Transaction (as described
in
the Reporting Requirements) or
(y)
the disbursing title
or
escrow company that
is
most significant
in
terms
of
gross proceeds disbursed
in
connection with the Transaction (as described
in
the Reporting Requirements).
Accordingly:
(a)
Escrow Agent
is
hereby designated as the “
Reporting Person
” (as defined
in
the Reporting Requirements) for the Transaction. Escrow Agent shall perform
all
duties that are required by the Reporting Requirements to
be
performed by the Reporting Person for the
Transaction.
(b)
Seller and Buyer shall furnish
to
Escrow Agent,
in
a timely manner, any information requested by Escrow Agent and necessary for Escrow Agent to perform its duties as Reporting Person for the
Transaction.
(c)
Escrow
Agent
hereby requests Seller to furnish
to
Escrow Agent Seller’s correct taxpayer identification number. Seller acknowledges that any failure by Seller to provide Escrow
Agent
with Seller’s correct taxpayer identification number may subject Seller to
civil
or
criminal penalties imposed by Legal Requirement. Accordingly, Seller hereby certifies to Escrow Agent, under penalties
of
perjury, that Seller’s correct
taxpayer identification
number
is
.
(d)
Each
of
the parties hereto shall retain this Agreement for a period
of
four (4) years following the calendar year during which Closing occurs.
8.
The provisions
of
this
Exhibit B
shall survive the Closing (and not
be
merged therein)
or
earlier termination
of
this
Agreement.
[Remainder of page intentionally blank]
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LEGAL02/38855357v6
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Exhibit B, Page 2
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EXHIBIT C
FORM OF DEED
(Alabama)
Prepared by and
when recorded, mail to:
SPECIAL WARRANTY DEED
STATE
OF
)
COUNTY
OF
)
THIS INDENTURE
made
and entered into
on
this day
of
,
2019, by
and
between
[ ],
an
[ ] (“
Grantor
”), whose address
is
[ ], and,
[ ],
an
[ ] (“
Grantee
”), whose address
is
[ ].
WITNESSETH: That the Grantor, for and
in
consideration
of Ten
and No/100 Dollars ($10.00), to
it
cash
in
hand paid this day by the Grantee, the receipt and sufficiency
of
which is acknowledged, has this day granted, bargained, sold and conveyed and does by these presents grant, bargain, sell and convey unto the said Grantee, the following described real estate lying and being
situated
in
County, Alabama, to-wit (the
“
Property
”):
SEE
EXHIBIT A
ATTACHED HERETO AND MADE PART HEREOF
TO HAVE AND TO HOLD unto the said Grantee, and unto its successors and assigns forever. And
said Grantor does
for itself,
its successors
and
assigns, covenant
with said
Grantee,
its
successors
and
assigns, that Grantor
has neither permitted nor suffered any
lien,
encumbrance
or
adverse claim
to
said the Property since the
date
of acquisition thereof by the Grantor except for
the
Permitted Encumbrances (defined
herein),
that
it
has
a good
right
to
sell and
convey
the
same
as
aforesaid,
and
that
it
will,
and
its successors
and
assigns
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LEGAL02/38855357v6
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Exhibit C, Page 1
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shall specially warrant
and
defend
the same to
the
said
Grantee,
its successors
and
assigns forever, against
the
lawful claims
of
all persons
claiming
by,
through or
under
Grantor,
subject
to
the Permitted
Encumbrances.
There
is
hereby excepted
from the foregoing
warranties
the following: (a) taxes for the year 2019, (b) all matters that would
be
set forth
on
a survey
of
the Property, and (c) all matters
of
record (collectively, the “
Permitted Encumbrances
”).
Pursuant to and in accordance with Section 40-22-1 of the Code of Alabama (1975), the following information is offered in lieu of submitting Form RT-1:
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Grantors’ Address:
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Grantees’ Address:
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Property Address:
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Purchase Price:
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$
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[Signature on Following Page]
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LEGAL02/38855357v6
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Exhibit C, Page 2
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IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed
to
be
executed the date first written
above.
GRANTOR
:
I, the undersigned, a Notary Public
in
and for said County
in
said State, hereby certify that
, whose
name
as
of
,
an
limited liability company,
is
signed
to
the foregoing instrument, and who
is
known
to
me, acknowledged before
me
on
this day that,
being
informed
of
the contents
of
said instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act
of
said limited liability
company.
Given under my hand and official
seal
on
,
2019.
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[S E A L]
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Notary Public, State
of
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My Commission Expires:
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Printed Name of Notary Public
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LEGAL02/38855357v6
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Exhibit C, Page 3
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Exhibit A
Legal Description
All that tract or parcel of land lying in and being a portion of the Southeast Quarter of the Southwest Quarter, Section Fifteen (15), Township Twelve (12) South, Range Five (5) East of the Huntsville, Meridian, City of Attalla of Etowah County, Alabama and being more particularly described as follows:
Commencing at the Southwest corner of Southeast Quarter of the Southwest Quarter running thence N 08º34'09" E a distance of 213.62' to a crimp top pipe found, which is the true point of beginning.
Thence N 00º29'45" E a distance of 900.78' to a an iron pin set; thence S 88º 01'00" E a distance of 447.15' to a crimp top pipe found: thence S 01'54'33" W a distance of 899.97' to an iron pin set; thence N 88º 05'06" W a distance of 424.93' to a crimp top pipe found, which is the true point of beginning.
Said tract or parcel of land is depicted on an ALTA/ACSM plat of survey prepared by LandPro Surveying and Mapping, Inc., dated April 8, 2010, as updated July 27, 2010, and is the same as shown on a subdivision plat for South Mont Addition to the City of Attalla recorded in Plat book E, Pages 230-233 and being Lots 9-44 and 62-97 of Block H, Probate Office, Etowah County, Alabama.
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LEGAL02/38855357v6
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Exhibit C, Page 4
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(Georgia)
UPON RECORDING RETURN TO:
LIMITED WARRANTY DEED
STATE
OF
COUNTY
OF
THIS INDENTURE
,
made
this
day
of
,
2019,
between
,
a
limited liability company (herein called "Grantor"), and
,
a
(herein
called
"Grantee").
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, in hand paid at and before the sealing and delivery of these presents, the receipt and sufficiency of which are hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed and by these presents does grant, bargain, sell, alien, convey and confirm unto Grantee all that tract or parcel of land described on
Exhibit A
, attached hereto and made a part hereof.
TO HAVE AND TO HOLD
the said bargained premises, together with all and singular the rights, members and appurtenances thereof, to the same being, belonging or in any wise appertaining, to the only proper use, benefit and behoof of Grantee, forever,
IN FEE SIMPLE
.
This Deed and the warranty of title contained herein are made expressly subject to the items set forth on
Exhibit B
attached hereto and made a part hereof.
Grantor will warrant and forever defend the right and title to the above described property unto Grantee against the lawful claims of all persons owning, holding or claiming by, through or under Grantor, but not otherwise.
(The words "Grantor" and "Grantee" include all genders, plural and singular, and their respective heirs, successors and assigns where the context requires or permits.)
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LEGAL02/38855357v6
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Exhibit C, Page 5
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IN WITNESS WHEREOF
, Grantor has signed and sealed this deed, the day and year first above written.
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Signed, sealed and delivered in the presence of:
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GRANTOR
:
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Unofficial Witness
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By:
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Name:
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Title:
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Notary Public
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(NOTARY SEAL)
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My Commission Expires:
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LEGAL02/38855357v6
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Exhibit C, Page 6
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(Oklahoma)
UPON RECORDING RETURN TO:
SPECIAL WARRANTY DEED
STATE OF
COUNTY OF
THIS INDENTURE,
made
as
of
,
2019,
between
[ ], a [ ] (herein called "Grantor"), whose mailing address
is
[ ], and
[
],
a
[
] (herein called "Grantee"), whose mailing address
is
[
]
.
WITNESSETH:
That Grantor, for the sum
of
$10.00 and good and other valuable consideration,
in
hand paid at and before the sealing and delivery
of
these presents, the receipt and sufficiency
of
which are hereby acknowledged, has GRANTED, BARGAINED, SOLD, ALIENED, CONVEYED AND CONFIRMED and by these presents does GRANT, BARGAIN, SELL, ALIEN, CONVEY AND CONFIRM unto Grantee all that tract
or
parcel
of
land described
on
Exhibit A
, attached hereto and made a part hereof, together with all improvements and fixtures thereon, and all rights, privileges, tenements, hereditaments, rights
of
way, easements, appendages and appurtenances,
in
anyway appertaining thereto, and all right, title and interest
of
Grantor,
if
any,
in
and
to
any minerals, utilities, streets, highways, roads, alleys, rights-of-way, sidewalks, strips
or
gores
of
land
adjoining the above-described real property
or
any part thereof (hereinafter, collectively, the
"Property").
TO HAVE AND TO HOLD
the said Property, together with all and singular the rights, members and appurtenances thereof, to the same being, belonging or in any wise appertaining, to the only proper use, benefit and behoof of Grantee, forever,
IN FEE SIMPLE
.
Grantor will warrant and forever defend the right and title to the above described Property unto Grantee against the lawful claims of all persons lawfully claiming by, through or under Grantor but not otherwise, except as set forth below.
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LEGAL02/38855357v6
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Exhibit C, Page 7
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This conveyance
is
made subject to any and all valid conditions, restrictions, mineral interests, covenants, easements and other instruments,
if
any, affecting the Property, now
of
record
in
the
County Clerk’s
Office
of
County, Oklahoma, the lien for current taxes and assessments not
in
default, any matters that would
be
revealed by an accurate ALTA/NSPS survey
of
the Property, and any existing and applicable building and zoning ordinances, to the extent that such matters are valid and in force
and
affect title
to
the Property, provided that reference
to
any matter shall not operate to ratify or reimpose such
matter.
[SIGNATURES APPEAR ON NEXT
PAGE]
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LEGAL02/38855357v6
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Exhibit C, Page 8
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IN WITNESS WHEREOF,
Grantor has signed and sealed this deed, the day and year first above written.
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[ ],
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a [ ]
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By:
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Name:
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Title:
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STATE OF
COUNTY OF
This instrument was acknowledged before
me
on
the
date
of
,
2019,
by
,
as
of
,
a
.
Notary:
(Notary Seal)
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LEGAL02/38855357v6
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Exhibit C, Page 9
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EXHIBIT A TO DEED
LEGAL DESCRIPTION
(to be attached)
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LEGAL02/38855357v6
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Exhibit C, Page 10
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EXHIBIT D
FORM OF BILL OF SALE
THIS
BILL OF SALE
(this “
Bill
of
Sale
”),
is
executed
as
of
, 2019
by
[INSERT NAME OF SELLER],
[INSERT ORGANIZATIONAL INFO FOR SELLER]
(“
Seller
”) for the benefit of
[INSERT NAME OF BUYER]
,
[INSERT ORGANIZATIONAL INFO FOR BUYER]
(“
Buyer
”).
W I T N E S S E T H:
WHEREAS, pursuant to the terms
of
that certain Purchase and Sale Agreement, dated as
of
,
2019, by and between Buyer and Seller (as the same may have been amended, modified
or
assigned, the “
Sale Agreement
”), Seller agreed to sell
to
Buyer,
inter alia
, certain real property, the improvements located thereon and certain rights appurtenant thereto, all as more particularly described
in
the Sale Agreement (collectively, the “
Real Property
”). Initially capitalized terms not otherwise defined herein shall have the respective meanings ascribed to such terms
in
the Sale Agreement;
and
WHEREAS, by deed of even date herewith, Seller conveyed the Real Property to Buyer;
and
WHEREAS, in connection with the above described conveyance Seller desires to sell, transfer and convey to Buyer certain items of tangible personal property as hereinafter described.
NOW, THEREFORE,
in
consideration
of
the receipt
of
TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration paid
in
hand by Buyer
to
Seller, the receipt and sufficiency
of
which are hereby acknowledged, Seller has SOLD, TRANSFERRED, and CONVEYED and by these presents does hereby SELL, TRANSFER, and CONVEY
to
Buyer
and Buyer hereby accepts all right, title and interest
in
and
to
all tangible personal property owned by Seller that
is
located
on
the Real Property and used
in
the ownership, operation and maintenance
of
the Real Property, including all books, records and files
of
Seller relating
to
the Real Property, but specifically excluding any Protected Information and any computer software that
is
licensed to Seller (herein collectively called the “
Personal
Property
”).
This Bill
of
Sale
is
made without any covenant, warranty
or
representation by,
or
recourse against, Seller other than Seller’s Warranties (as defined
in
the Sale
Agreement).
Seller’s liability under this Bill of Sale shall be limited as set forth in
Section 4.3
of the Sale Agreement.
[Remainder of page intentionally blank]
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LEGAL02/38855357v6
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Exhibit D, Page 1
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IN WITNESS WHEREOF, the undersigned has executed this Bill of Sale to be effective as of the date first set forth hereinabove.
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SELLER:
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[INSERT NAME OF SELLER]
,
[INSERT
ORGANIZATIONAL INFO FOR SELLER]
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By:
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Name:
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Title:
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LEGAL02/38855357v6
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Exhibit D, Page 2
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EXHIBIT E
FORM OF ASSIGNMENT OF LEASE AND INTANGIBLE PROPERTY
THIS ASSIGNMENT OF LEASE AND INTANGIBLE PROPERTY
(this “
Assignment
”),
is
made
as
of
, 201
by and between
[INSERT NAME
OF
SELLER]
,
[INSERT ORGANIZATIONAL INFO FOR SELLER]
(“
Assignor
”) and
[INSERT NAME OF BUYER]
,
[INSERT ORGANIZATIONAL INFO FOR BUYER]
(“
Assignee
”).
W I T N E S S E T H:
WHEREAS, pursuant to the terms
of
that certain Purchase and Sale Agreement, dated as
of
,
201
,
by and between Assignee and Assignor (as the same may have been amended, modified
or
assigned, the “
Sale Agreement
”), Assignor agreed to sell
to
Assignee,
inter alia
, certain real property, the improvements located thereon and certain rights appurtenant thereto, all as more particularly described
in
the Sale Agreement (collectively, the “
Real
Property
”). Initially capitalized terms not otherwise defined herein shall have the respective meanings ascribed to such terms
in
the Sale Agreement;
and
WHEREAS, the Sale Agreement provides,
inter alia
, that Assignor shall assign to Assignee certain leases and rights to certain intangible property and that Assignor and Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto hereby agree as follows:
1.
Assignment
of
Leases
. Assignor hereby assigns, sets over and transfers to Assignee all
of
Assignor’s right, title and interest
in,
to and under that certain [Lease Agreement dated
by and between Seller, as
landlord,
and
, as tenant]
(as
amended, the “Lease”). Assignee hereby accepts the foregoing assignment
of
the Lease and assumes the obligations with respect thereto arising
on or
after the date
hereof.
2.
Assignment
of
Intangible Property
. Assignor hereby assigns, sets over and transfers
to
Assignee all
of
Assignor’s right, title and interest
in,
to and under the following, if and only
to
the extent the same may
be
assigned
or
quitclaimed by Assignor without expense
to
Assignor
in
excess
of
a nominal transfer fee, the Intangible Property, as such term
is
defined in the Sale Agreement. Assignee hereby accepts the foregoing assignment
of
the Intangible Property and assumes the obligations with respect thereto arising
on or
after the date
hereof.
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LEGAL02/38855357v6
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Exhibit E, Page 1
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3.
Reservation
of
Benefits
. Notwithstanding anything
to
the contrary
in
this Assignment, to the extent that Assignor continues to
have
liability after the date hereof with respect to the Property, Assignor reserves and retains such benefits under the Lease and the Intangible Property as are necessary
or
desirable for Assignor to defend
or
protect itself with respect to
or
to assert any rights relating
to
any matter for which Assignor may continue
to
have liability from and after the date hereof;
provided
,
however
, said benefits reserved and retained
by
Assignor pursuant to this section shall exist jointly with Assignee’s benefits under the Lease and Intangible
Property,
and
such
benefits
may
be
enforceable
by
each
of
Assignor
and
Assignee
to
the extent of their respective liability or damages for any matters relating thereto. Assignee and Assignor agree to cooperate with the reasonable requests of the other party in enforcing their respective benefits under the Lease and the Intangible Property to the extent such benefits are reserved by Assignor pursuant to the terms of this section.
4.
Limitation
on
Liability
. Assignor’s liability under this Assignment shall be limited as set forth
in
Section 4.3
of
the Sale
Agreement.
5.
Miscellaneous
. This Assignment and the obligations
of
the parties hereunder shall be binding upon and inure
to
the benefit
of
the parties hereto, their respective legal representatives, successors and assigns, shall be governed by and construed
in
accordance with the laws
of
the State
in
which the Real Property
is
located applicable
to
agreements made and
to
be
wholly performed within said State and may not
be
modified
or
amended
in
any manner other than by a written agreement signed by the party
to
be
charged
therewith.
6.
Severability
.
If
any
term or
provision
of
this Assignment
or
the application thereof
to
any persons
or
circumstances shall,
to
any extent,
be
invalid
or
unenforceable, the remainder
of
this Assignment
or
the application
of
such term
or
provision to persons
or
circumstances other than those as to which
it
is
held invalid
or
unenforceable shall not
be
affected thereby, and each
term
and provision
of
this Assignment shall be valid and enforced
to
the fullest extent permitted by
law.
7.
Counterparts. This Assignment may be executed
in
counterparts, each
of
which shall
be
an original and all
of
which counterparts taken together shall constitute one and the same agreement.
[Remainder of page intentionally blank]
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LEGAL02/38855357v6
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Exhibit E, Page 2
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IN WITNESS WHEREOF, the undersigned have executed this Assignment to
be
effective as
of
the date first set forth
hereinabove.
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ASSIGNOR:
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[INSERT NAME OF SELLER]
,
[INSERT
ORGANIZATIONAL INFO FOR SELLER]
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By:
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Name:
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Title:
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ASSIGNEE:
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[INSERT NAME OF BUYER]
,
[INSERT
ORGANIZATIONAL INFO FOR BUYER]
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By:
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Name:
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Title:
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LEGAL02/38855357v6
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Exhibit E, Page 3
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EXHIBIT F
FORM OF NOTICE TO TENANTS
,
201
Re:
Notice
of
Change
of
Ownership
of
[Insert Property Name and Property
Address]
Ladies and Gentlemen:
You are hereby notified as follows:
That as of the date hereof,
[INSERT NAME OF SELLER]
has transferred, sold, assigned, and conveyed all of its interest in and to the above-described property (the “
Property
”), including all right, title and interest of the landlord under your lease, to
[INSERT NAME OF BUYER]
(the “
New Owner
”).
Future notices and rental payments with respect to your leased premises at the Property should be made to the New Owner in accordance with the terms of your lease at the following address:
If there is a security deposit with respect to your lease, it has been transferred to the New Owner and the New Owner shall be responsible for holding your security deposit in accordance with the terms of your lease and applicable laws.
We expect that New Owner or its property management agent will contact you shortly with respect to other information regarding New Owner, the Property and your lease.
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Sincerely,
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[INSERT NAME OF SELLER], [INSERT
ORGANIZATIONAL INFO FOR SELLER]
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By:
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Name:
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LEGAL02/38855357v6
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Exhibit F, Page 1
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EXHIBIT G
FORM OF FIRPTA AFFIDAVIT
Section 1445
of
the Internal Revenue Code provides that a transferee
of
a United States real property interest
must
withhold tax
if
the transferor
is
a foreign person. For U.S. tax purposes
(including
Section
1445),
the
owner
of
a
disregarded
entity
(which
has
legal
title
to
a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a United States real property interest by
[INSERT NAME OF SELLER]
,
[INSERT ORGANIZATIONAL INFO FOR SELLER]
(“
Seller
”), Seller hereby certifies the following:
1.
Seller
is
not a disregarded entity as defined
in
§1.1445-2(b)(2)(iii)
of
the Internal Revenue Code.
[
Substitute the
following if Seller is a
disregarded
entity:
Seller
is
a disregarded entity as defined
in
§1.1445-2(b)(2)(iii)
of
the Internal Revenue
Code.
,
a
(“
Member
”)
is
the sole owner
of
Seller. Member
is
not a disregarded entity as defined
in
§1.1445-2(b)(2)(iii)
of
the Internal Revenue Code.
end
OPTION
]
2.
[
Seller
-
OR
-
Member
]
is
not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined
in
the Internal Revenue Code and Income
Tax
Regulations).
3.
[
Seller’s
-
OR
-
Member’s
]
U.S. employer taxpayer identification number
is
.
4.
[
Seller’s
-
OR
-
Member’s
]
office
address
is
.
Seller understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Dated:
, 201
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[INSERT NAME OF SELLER]
,
[INSERT
ORGANIZATIONAL INFO FOR SELLER]
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By:
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Name:
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Title:
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LEGAL02/38855357v6
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Exhibit G, Page 1
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On
, 201
,
before
me,
the undersigned, a notary public
in
and for said State, personally
appeared
, personally known to
me
(or proved
to
me
on
the basis
of
satisfactory evidence)
to
be
the person(s) whose name(s) is/are subscribed
to
the within instrument and acknowledged
to
me
that he/she/they executed the same
in
his/her/their authorized capacity(ies) and that, by his/her/their signature(s)
on
the instrument, the person(s),
or
the entity upon behalf
of
which the person(s) acted, executed the
instrument.
,
Notary
Public
My Commission Expires:
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LEGAL02/38855357v6
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Exhibit G, Page 2
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EXHIBIT H-1
FORM OF TITLE AFFIDAVIT
Dated
as
of:
,
201
Title Order
No.
The undersigned (“
Owner
”) hereby represents and warrants as follows
to
and for the benefit
of
Title Insurance Company (the “
Title
Company
”):
1.
Representatives
of
Owner have reviewed the preliminary report/commitment with an effective
date
of
,
201
(the “
Title Report
”).
2.
To the knowledge
of
Owner, there are
no
unrecorded leases
or
occupancy agreements affecting the property described
in
Schedule A
of
the Title Report (the “
Property
”),
or
other parties
in
possession
of
the Property, except for leases with the tenants shown
on
Exhibit A
attached hereto, and unrecorded residency agreements without any rights to purchase any portion
of
the
Property.
3.
To the knowledge
of
Owner, there are
no
unrecorded claims against the Property, nor any set
of
facts by reason
of
which Owner’s title
to
the Property might be disputed
or
questioned
except
for
(a)
the
leases
with
the
tenants
shown
on
Exhibit
A
, (b) matters shown
on
the Title Report, (c) matters as disclosed
on
the survey previously delivered to the Title Company, and (d) current taxes not delinquent. To the knowledge
of
Owner and except as aforesaid, Owner has been
in
peaceable and undisputed possession
of
the Property since title was
acquired.
4.
Except as set forth
on
Exhibit B
attached
hereto:
(a)
within the last six (6) months, Owner has not
(i)
made, ordered
or
contracted for any construction, repairs, alterations
or
improvements
to
be
made
on or
to the Property which have not been paid for
in
full, (ii) ordered materials for any such construction, repairs, alterations
or
improvements which have not been paid for
in
full,
or
(iii)
attached any fixtures to the Property which have not been paid for
in
full;
and
(b)
there are
no
outstanding
or
disputed claims for any work
or
item referred to
in
paragraph (a)
.
5.
To the knowledge
of
Owner, Owner has not received written notice
of
any violation
of
any covenants, conditions
or
restrictions
of
record affecting the Property and there are
no
disputes with any adjoining property owners as to the location
of
property lines,
or
the encroachment
of
any
improvements.
All references herein to the “
knowledge
”
of
Owner or words
of
similar import shall refer only
to
the
actual
knowledge
of
[
Insert
names
of
Designated
Representatives
]
,
and
shall
not
be
construed
to
refer
to
the
knowledge
of
any
other
officer,
director,
shareholder,
employee,
agent or representative of Owner, any direct or indirect owner of any beneficial interest in Owner, or any affiliate of any of the foregoing, or to impose or have imposed upon such individuals any duty to investigate the matters to which such knowledge, or the absence thereof, pertains. There shall be no personal liability on the part of the aforementioned individuals arising out of any representations or warranties made herein.
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LEGAL02/38855357v6
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Exhibit H-1, Page 1
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This affidavit is made for the purpose of aiding the Title Company in determining the insurability of title to the Property, and to induce the Title Company to issue its policy of title insurance and for no other purpose. This affidavit may be relied upon by the Title Company but may not be relied upon by any other person or entity.
[Remainder of page intentionally blank]
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LEGAL02/38855357v6
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Exhibit H-1, Page 2
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IN WITNESS WHEREOF, Owner has executed this affidavit as of the date first set
forth
above.
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[INSERT NAME OF SELLER]
,
[INSERT
ORGANIZATIONAL INFO FOR SELLER]
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By:
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Name:
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Title:
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LEGAL02/38855357v6
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Exhibit H-1, Page 3
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EXHIBIT H-2
FORM OF GAP INDEMNITY
Dated
as
of:
,
201
Title Order
No.
Title Commitment
Effective
Date:
,
201
WHEREAS,
TITLE
INSURANCE
COMPANY
(the
“
Title Company
”) has been asked
to
issue its owner’s policy(ies)
of
title insurance
in
the aggregate amount
of
$
in
favor of
[INSERT NAME OF BUYER]
,
[INSERT ORGANIZATIONAL INFO FOR BUYER]
(“
Buyer
”) covering premises being acquired from
[INSERT NAME
OF
SELLER]
,
[INSERT ORGANIZATIONAL INFO FOR
SELLER]
(“
Seller
”) as more particularly described in
Exhibit A
attached hereto (the “
Real Property
”);
AND WHEREAS, the Title Company
is
unwilling
to
give
title insurance coverage
to
Buyer with respect to the Real Property until the instruments under which Buyer acquires title are filed for record
in
the appropriate
registry;
AND WHEREAS, the parties
to
the transaction have requested that the Title Company disburse amounts to Seller that the Title Company holds
in
escrow prior to such time as the deed for the Real Property
is
recorded
in
the applicable records
of
County,
.
NOW, THEREFORE,
it is
agreed that
in
consideration
of
the Title Company issuing its title insurance policy
to
Buyer effective as
of
the date closing occurs without making exception therein to matters which may arise between the Title Commitment Effective Date referenced above (being the last effective date
of
the title insurance commitment issued by the Title Company
in
connection with Buyer’s title insurance) and the
date
the documents creating the interest being insured have been filed for record and which matters may constitute an encumbrance
on or
affect said title, Seller agrees to promptly defend, remove, bond
or
otherwise dispose
of
any encumbrance, lien
or
objectionable matter to title caused by the acts
of
Seller, its agents
or
representatives which may arise
or
to
be
filed, as the case may be, against the Real Property during the period
of
time between the Title Commitment Effective Date referenced above and the date
of
recording
of
all closing instruments, and to hold harmless, and indemnify the Title Company against all expenses, costs, and reasonable attorneys’ fees, which may arise out
of
Seller’s
failure
to
so
remove,
bond
or
otherwise
dispose
of
any
said
liens, encumbrances
or
objectionable matters caused by the acts
of
Seller, its agents
or
representatives;
provided
,
however
, the Title Company shall use good faith and diligent efforts to submit all documents for recordation as soon as possible but,
in
any event,
no
later than five (5) business days after the date hereof. Seller shall have
no
obligations
or
liability hereunder with respect
to
(a) any objections
to
title which may arise
or
be
filed after such five (5) business day period,
or
(b) any objections
to
title which may arise
or
be
filed as a result
of
the acts
or
by permission
of
Buyer, its agents
or
representatives. Seller shall have
no
further obligations hereunder unless the Title Company notifies Seller
in
writing
of
any claim hereunder within forty-five (45) days after the date hereof.
This indemnity is given to induce the Title Company to issue its policy of title insurance and for no other purpose. This indemnity may be relied upon by the Title Company but may not be relied upon, and is not enforceable, by any other person or entity.
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LEGAL02/38855357v6
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Exhibit H-2, Page 1
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[Remainder of page intentionally blank]
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LEGAL02/38855357v6
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Exhibit H-2, Page 2
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IN WITNESS WHEREOF, Seller has executed this Gap Indemnity as the date first set forth above.
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[INSERT NAME OF SELLER]
,
[INSERT
ORGANIZATIONAL INFO FOR SELLER]
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By:
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Name:
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Title:
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LEGAL02/38855357v6
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Exhibit H-2, Page 3
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EXHIBIT I-1
FORM OF SELLER’S CERTIFICATE OF REPRESENTATIONS AND WARRANTIES
Pursuant to that certain Purchase and Sale Agreement (as the same may have been amended, modified
or
assigned, the “
Sale Agreement
”), dated as
of
,
201
,
by and between the undersigned (“
Seller
”) and
[INSERT NAME OF BUYER]
,
[INSERT ORGANIZATIONAL INFO FOR BUYER]
(“
Buyer
”), respecting the property commonly known as
[Insert Property Name and Property Address]
, Seller hereby certifies to Buyer that all
of
Seller’s Warranties (as such term
is
defined
in
the Sale Agreement) set forth
in
the Sale Agreement, as the same may be amended
or
modified as provided by
Section 7.3
of
the Sale Agreement, are true and correct
in
all material respects as
if
made
on
and as
of
the date hereof, except as set forth
on
Exhibit A
attached
hereto.
Seller’s liability under this Certificate shall be limited as set forth in
Section 4.3
of the Sale Agreement. To the extent that Buyer is deemed to know (as such term is defined in the Sale Agreement) prior to the date hereof that any of Seller’s Warranties made in this Certificate are inaccurate, untrue or incorrect in any way, such representations and warranties shall be deemed modified to reflect Buyer’s deemed knowledge.
IN WITNESS WHEREOF, Seller has executed this Certificate as
of
,201
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[INSERT NAME OF SELLER]
,
[INSERT
ORGANIZATIONAL INFO FOR SELLER]
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By:
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Name:
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Title:
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LEGAL02/38855357v6
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Exhibit I-1, Page 1
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EXHIBIT I-2
FORM OF BUYER’S CERTIFICATE OF REPRESENTATIONS AND WARRANTIES
Pursuant to that certain Purchase and Sale Agreement (as the same may have been amended, modified
or
assigned, the “
Sale Agreement
”), dated as
of
,
201
,
by and between the undersigned (“
Buyer
”) and
[INSERT NAME OF SELLER]
,
[INSERT ORGANIZATIONAL INFO FOR SELLER]
(“
Seller
”), respecting the property commonly known as
[Insert Property Name and Property Address]
, Buyer hereby certifies to Seller that all
of
Buyer’s representations and warranties set forth
in
the Sale Agreement are true and correct
in
all material respects as if made
on
and as
of
the
date
hereof, except as set forth
on
Exhibit A
attached
hereto.
IN
WITNESS
WHEREOF,
Buyer
has
executed
this
Certificate
as
of
,
201
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[INSERT NAME OF BUYER], [INSERT
ORGANIZATIONAL INFO FOR BUYER]
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By:
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Name:
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Title:
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LEGAL02/38855357v6
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Exhibit I-2, Page 1
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EXHIBIT J
EXCEPTIONS TO SELLER’S WARRANTIES
Notices of Litigation
None
Notices of Operating Lease Defaults
None
Notices of Governmental Violations
None
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LEGAL02/38855357v6
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Exhibit J, Page 1
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EXHIBIT K
SELLER PERMITS
None.
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LEGAL02/38855357v6
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Exhibit K, Page 1
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EXHIBIT L
FORM OF OPERATOR ESTOPPEL CERTIFICATE
The undersigned
is
the Tenant under the Lease (defined below) between
, a
, as Landlord, and the undersigned as Tenant, for the Premises located at
,
and commonly known
as
,
and hereby certifies as
follows:
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1.
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The Lease consists
of
the original Lease Agreement dated as
of
,
between Tenant and Landlord and the following amendments
or
modifications thereto (if none, please state
“none”):
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The documents listed above are herein collectively referred to as the “
Lease
” and represent the entire agreement between the parties with respect to the Premises. All capitalized terms used herein but not defined shall be given the meaning assigned to them in the Lease.
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2.
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The Lease
is in
full force and effect and has not been modified, supplemented
or
amended
in
any way except as provided
in
Section 1
above.
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3.
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The Term
commenced
on
,
and the Term expires, excluding any renewal
options,
on
.
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4.
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Tenant has not transferred, assigned,
or
sublet any portion
of
the Premises nor entered into any license
or
concession agreements with respect thereto except as follows (if none, please state
“none”):
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5.
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All
monthly
installments
of
Rent, Taxes and Other Charges have been paid when due through
. The current monthly installment
of
Rent
is
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$
.
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6.
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To Tenant’s knowledge, Landlord
is
not
in
default under the Lease. In addition, Tenant has not delivered any notice
to
Landlord regarding a default by Landlord thereunder. Tenant
is
not
in
default under the Lease. No state
of
facts exists which, with the passage
of
time
or
the giving
of
notice,
or
both, could constitute a default by Tenant under the
Lease.
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7.
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As
of
the date hereof, there are
no
existing defenses, offsets, or, to the undersigned’s
knowledge,
claims
or
any
basis
for
a
claim,
that
the
undersigned has against
Landlord
and to Tenant’s knowledge, no event has occurred and no condition exists, which, with the giving of notice or the passage of time, or both, will constitute a default under the Lease.
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LEGAL02/38855357v6
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Exhibit L, Page 1
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8.
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No rental has been paid more than 30 days
in
advance and
no
security deposit has been delivered to Landlord except as provided
in
the
Lease.
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9.
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Tenant
has full right and authority to execute and deliver this Estoppel Certificate and that each person signing
on
behalf
of
Tenant
is
authorized
to
do
so.
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10.
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There
are
no
actions pending against Tenant under any bankruptcy
or
similar laws
of
the United States
or
any
state.
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Tenant acknowledges that this Estoppel Certificate may
be
delivered
to
Landlord, Landlord’s
Mortgagee
or
to a prospective mortgagee or prospective purchaser, and their respective successors and assigns, and acknowledges that Landlord, Landlord’s Mortgagee and/or such prospective mortgagee
or
prospective purchaser will
be
relying upon the statements contained herein
in
disbursing loan advances
or
making a new loan
or
acquiring the property
of
which the Premises are a part and that receipt by it
of
this certificate
is
a condition
of
disbursing loan advances
or
making such loan
or
acquiring such
property.
Executed
as
of
,
201
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LEGAL02/38855357v6
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Exhibit L, Page 2
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