EXHIBIT 10.3
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") dated as of October 24,
2005 (the "EFFECTIVE DATE"), is among the following: AZ-TEMPE LUKE LIMITED
PARTNERSHIP, a Florida limited partnership ("SELLER"), having its principal
address at Suite 600, 0000 XXX Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000,
with the Seller's obligations under Section 11(a) of this Agreement being
guaranteed by Seller's affiliate, Medical Office Portfolio Limited Partnership,
a Florida limited partnership ("SELLER'S Guarantor"), having its principal
address at Xxxxx 000, 0000 XXX Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000, and
WINDROSE TEMPE PROPERTIES, L.P., a Delaware limited partnership ("BUYER"),
having its principal address at Suite 210, 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, with the Buyer's obligations under this Agreement being
guaranteed by Buyer's affiliate, Windrose Medical Properties Trust, a Maryland
REIT, having its principal address at Xxxxx 000, 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000 ("BUYER'S GUARANTOR"). Hereinafter Buyer and Seller
are sometimes referred to individually as a "PARTY" or collectively as the
"PARTIES."
Recitals
Seller is the ground lessee of a certain parcel of land located in Tempe,
Arizona, more particularly described on EXHIBIT "A" attached hereto (the
"LAND"), pursuant to that certain Ground Lease dated January 22, 1996, as
modified, attached hereto as EXHIBIT "B", evidenced by that certain Memorandum
of Lease recorded as Instrument No. 96-0047701 in the public records of Maricopa
County, Arizona (the "GROUND LEASE") between Seller and Tempe St. Luke's
Hospital, LP, a Delaware limited partnership, as ground lessor ("GROUND LESSOR")
(collectively, the "LEASEHOLD INTEREST").
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree to the
terms and conditions set forth below and as set forth in the Exhibits and
Schedules to this Agreement.
Agreement
1. Recitals; Sale of Interests. The foregoing recitals are true and correct and
are hereby incorporated into this Agreement. Seller agrees to sell the
"Property" (as hereinafter defined, including the Leasehold Interest) to Buyer,
and Buyer agrees to purchase the Property, subject to the terms and conditions
set forth in this Agreement.
2. Purchase Price. The purchase price (the "PURCHASE PRICE") for the Property is
Eight Million Nine Hundred Eight Thousand Nine Hundred Seventeen Dollars and
00/100 U.S. Dollars ($8,908,917.00), subject to such credits and charges to
Seller and Buyer as may be provided for in this Agreement and the exhibits and
schedules hereto.
3. Payment of Purchase Price. Buyer will pay the Purchase Price as follows:
(a) Loan Assumption; Mortgage; Substitute Guaranty; Lender Consent. The
Property is subject to the terms of a certain loan secured by a deed of trust
and/or mortgage executed in favor of the lender (the "LENDERS") and recorded in
the public
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records of the applicable jurisdiction as set forth on SCHEDULE "B-1" hereto,
which includes the original principal amount of such loan (the "MORTGAGE"). The
estimated outstanding balance of the Mortgage as of the Effective Date is
$5,981,314.56. From the Effective Date until Closing, Seller shall continue to
pay, in the ordinary course of business, amounts due under the Mortgage. At
Closing, Seller shall have no obligation to cause the Mortgage to be satisfied
or the principal balance thereof to be reduced in any manner. Seller has
submitted its request to the Lender for consent and approval of the transfer of
the Property to Buyer hereunder and assumption of the Mortgage by Buyer, and for
the Lender's acceptance of a substitute guaranty of the Mortgage and/or
indemnity of the Lender by Buyer or its affiliate (as applicable). Buyer and
Seller shall each use their commercially reasonable efforts to expedite the
Lender's consent and approval of the transfer and assumption and the substitute
guaranty of the Mortgage and indemnity of the Lender by Buyer or its affiliate
(as applicable). Buyer will provide the Lender with a substitute guaranty for
applicable obligations under the Mortgage by Guarantor in substitution of the
existing guaranty of the Mortgage, and Buyer will provide the Lender with a
substitute indemnity for applicable obligations (including environmental
matters) under the Mortgage by Guarantor in substitution of the existing
indemnity of the Lender. The Lender's consent to the assumption of the Lender's
Mortgage by Buyer shall include a full release of all environmental indemnities,
pledges and guaranties given by any of the Seller and/or any affiliates of
Seller, and/or any individual interest holder in Seller and/or any affiliates of
Seller, for obligations arising from and after the date of the purchase of the
Property by Buyer ("RELEASES"). Buyer has completed all due diligence that Buyer
deems necessary with respect to the terms and conditions of the Mortgage and the
loan documents associated with the Mortgage ("LOAN DOCUMENTS"). If the terms and
conditions of any Mortgage or Loan Documents, including the applicable Lender's
requirements for consent to the transactions herein and the substitute
guaranties and/or indemnities, are not acceptable to Buyer for any reason, or if
Lender does not consent to the transactions herein and the substitute guaranties
and/or indemnities and the Releases, the same shall not excuse Buyer's
obligation to close under this Agreement and Buyer's rights and obligations with
respect thereto shall be as set forth in Section 7(a) below. With respect to the
Releases, Seller acknowledges that the form of Release attached hereto as
SCHEDULE "Z", are acceptable to Seller if provided by the Lender in connection
with this transaction.
(b) After crediting against the Purchase Price only the outstanding balance
of principal and interest of the Mortgage at the date of Closing (and
specifically excluding from such credit, without limitation, any and all amounts
that may be required to be paid to the Lender or to any other person or entity
(including, without limitation, Lender's attorneys or other representatives) in
connection with the Lender's consent to the transfer of the Property and/or the
satisfaction or defeasance of the Mortgage as provided for in Section 7(a)), the
balance of the Purchase Price shall be paid by Buyer to Seller at Closing by a
wire transfer of immediately available funds, as adjusted by the adjustments and
prorations and allocated as set forth in this Agreement and the exhibits hereto
(the "PRORATIONS").
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4. Inspection of Property.
(a) Prior to the Effective Date, Buyer has been provided the opportunity to
complete its due diligence and fully review and evaluate this transaction as it
relates to the Property, including, without limitation, all matters related to:
(i) The net operating income of the Property, including (without
limitation) all assumptions as to vacancies, expiring leases, renewals or
otherwise;
(ii) The physical condition of the Property;
(iii) All title and survey matters with respect to the Property;
(iv) All hazardous waste and environmental matters with respect to the
Property;
(v) Review and audit of the books and records of the Property;
(vi) All governmental inquiries with respect to the Property; and
(vii) All "Tenant" (as hereinafter defined) interviews with respect to
the Property.
Further, Seller has provided to Buyer, and Buyer hereby acknowledges receipt of,
the items set forth on SCHEDULE "A-2" hereto. Based on Buyer's due diligence and
review and evaluation of this transaction as it relates to the Property, Seller
has agreed to give Buyer a credit in the amount set forth on SCHEDULE "A-3"
hereto in full and complete satisfaction of any and all matters of any nature
with respect to the Property, and in no event will Buyer be excused from its
obligation to close under this Agreement on the purchase of the Property, or
have the right to receive any other purchase price adjustment, credit, or other
consideration of any kind, or have the right to extend the Closing, as a result
of any matters of any nature with respect to the Property, except as otherwise
expressly provided in this Agreement. Accordingly, except as otherwise expressly
set forth in this Agreement, the sale of the Property is being made on an "AS
IS", "WHERE IS" condition and basis "WITH ALL FAULTS".
(b) From and after the Effective Date, all title and survey matters
affecting the Leasehold Interest as shown in the title commitment and survey
listed on SCHEDULE "C", other than any liens or monetary encumbrances (excluding
the Mortgage) resulting from Seller's actions, shall be deemed to be accepted by
Buyer ("PERMITTED EXCEPTIONS"). If any material title matter arises after the
Effective Date that would render title to the Leasehold Interest unmarketable (a
"MATERIAL TITLE DEFECT"), other than any liens or encumbrances on the Leasehold
Interest (excluding the Mortgage) resulting from the Seller's actions (which
shall be paid at or before Closing), then, within five (5) days after Buyer has
actual notice of same, Buyer may notify Seller in writing, specifying Buyer's
objection to such title matter (a "NOTICE OF MATERIAL TITLE DEFECT"). If Seller
agrees with Buyer's Notice of Material Title Defect, then Seller shall undertake
the cure of such Material Title Defect and, if necessary in Seller's sole
discretion, Seller may extend the Closing of the transaction contemplated under
this Agreement for up to thirty (30) days to
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cure such Material Title Defect. In no event shall Seller be obligated to
initiate suit in connection with the cure of any Material Title Defect. If
Seller disagrees with the Buyer's Notice of Material Title Defect, then Seller
shall specify to Buyer, in writing, its grounds for disagreement therefor and
propose a good faith resolution of such Material Title Defect, which resolution
may include re-structuring the transaction contemplated under this Agreement as
to such Fee Interest as an interest sale, to the extent that such re-structuring
does not create any new significant adverse matters to any Party. If such
proposed resolution is mutually agreeable to Buyer, in Buyer's good faith
determination, then Buyer shall provide written notice to Seller of same and the
parties shall proceed to Closing under this Agreement, subject to the terms
contained herein. If: (i) Buyer disagrees with the Seller's proposed resolution
of the Material Title Defect and the parties are otherwise unable to agree upon
a mutually acceptable resolution of such Material Title Defect within ten (10)
days following the Buyer's Notice of Material Title Defect, or (ii) Seller is
unable to cure a Material Title Defect within the aforementioned thirty (30) day
cure period, then, unless Buyer agrees to rescind the Notice of Material Title
Defect, Seller shall have the right, in Seller's sole discretion and upon
written notice to Buyer, to terminate this Agreement. If Seller elects to
terminate this Agreement, then the Parties shall thereafter be released from all
further obligations under this Agreement, except those specifically provided
herein to survive the termination of this Agreement. If Buyer does not timely
deliver a Notice of Material Title Defect, then Buyer's rights to object to such
Material Title Defect shall be waived and Buyer shall be obligated to proceed to
Closing, subject to the terms and conditions of this Agreement.
5. Seller's Representations and Warranties. Seller represents and warrants to
Buyer that, as to the "Property" (as hereinafter defined) owned by Seller, as of
the date hereof:
(a) The Seller owns the following property:
(i) Subject to Permitted Exceptions and the Mortgage, good and
marketable leasehold title and interest in and to the Leasehold Interest,
together with the Seller's right, title and interest (if any) in and to all open
or proposed xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys, easements, strips, gores,
and rights-of-way in, on, contiguous to, abutting or adjoining the Leasehold
Interest, as well as all structures, buildings, improvements and fixtures
located on or forming part of the Leasehold Interest, together with all fixtures
owned by the Seller and all equipment and appliances owned by the Seller and
used in connection with the operation or occupancy of the improvements such as
heating and air-conditioning and ventilation systems and facilities used to
provide any utility services, as same may exist at Closing in the ordinary
course of Seller's business (the "IMPROVEMENTS");
(ii) Except as otherwise provided herein, the Permitted Exceptions and
the Mortgage, good and marketable title and interest in and to all personal
property held by the Seller, including, but not limited to, the Seller's rights
(if any) to all architectural, mechanical, electrical and structural plans,
studies, drawings, specifications, surveys, renderings and other technical
descriptions that relate to the Leasehold Interest, in possession of the Seller
or the Seller's agent and subject to the rights of the Lender, as same may exist
at Closing in the ordinary course of Seller's business (the "PERSONAL
PROPERTY");
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(iii) The leases and license agreements between Seller and the tenants
with respect to the Improvements owned by Seller, as same may exist at Closing
in the ordinary course of Seller's business (such tenants are hereinafter
referred to as "TENANTS" and all such leases and license agreements of any
Tenants are hereinafter referred to as "LEASES"); and
(iv) The Seller's interest (if any) in all transferable licenses,
permits and warranties in effect with respect to the Leasehold Interest, the
Improvements and the Personal Property as set forth on SCHEDULE "D" (the
"LICENSES"), an interest in all written service, maintenance or related vendor
contracts as set forth on SCHEDULE "E" (the "SERVICE CONTRACTS") in effect at
Closing, and all equipment leases and rights of the Seller thereunder (if any)
relating to equipment or property located on the Leasehold Interest and which
may survive the Closing as set forth on SCHEDULE "F" (the "EQUIPMENT LEASES"),
as all of the foregoing may exist at Closing in the ordinary course of Seller's
business (collectively, the "INTANGIBLE PROPERTY") (the Leasehold Interest,
together with the Improvements, the Personal Property, the Leases and the
Intangible Property, are collectively referred to as the "PROPERTY").
(b) The rent roll attached hereto as SCHEDULE "G" is a true, accurate and
complete listing, as of the date hereof, of each Tenant, space occupied, lease
term, current rent, Lease start and expiration date for the Property (herein the
"RENT ROLL"), and Seller has provided to Buyer a true, accurate and complete
copy of each Lease set forth on the Rent Roll. Each Lease so delivered is, as of
the Effective Date, in full force and effect and has not been amended, modified
or supplemented in any material way except as set forth in the copies of the
Leases provided to Buyer pursuant to this Section. Except as otherwise disclosed
by Seller to Buyer in writing, as of the Effective Date, to Seller's knowledge
there are no defaults by Tenants under any of the Leases. Except as otherwise
disclosed by Seller to Buyer in writing or as set forth in the Leases, the
Seller has not committed to any tenant improvements or allowances for periods
arising after the Closing, and as of the Closing all tenant improvements,
repairs and other work and obligations, if any, then required to be performed by
the Seller under each of the Leases will be fully performed, credited or paid
for prior to or at Closing, as applicable. None of the Leases or rents payable
thereunder has been assigned, pledged or encumbered, except to the Lender.
(c) Except as set forth on the Tenant rent arrearage schedule attached
hereto as SCHEDULE "H", as of the Effective Date, no rents have been paid more
than one (1) month in advance by any Tenant under any Lease and any Tenant rent
arrearages are set forth on such schedule. Except as set forth on the Tenant
rent arrearage schedule, as of the Effective Date, no additional rents have been
collected for the period subsequent to the Closing.
(d) All "Tenant Security Deposits" held by the Seller as of the Effective
Date are as set forth on the Tenant security deposit schedule attached hereto as
SCHEDULE "I". For purposes of this Agreement, "TENANT SECURITY DEPOSITS" shall
mean and include all security deposits, escrow deposits, reserve funds, security
interests, letters of credit, pledges, prepaid rent or other sums, deposits or
interests held by Seller or by any other Person for the benefit of the Seller
with respect to the Leases. All unapplied security
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deposits, reserve accounts, escrow funds or other similar payments paid by the
Tenants are held by Seller in accordance with the terms and provisions of the
Leases.
(e) All "Tenant Inducement Costs" and "Leasing Commissions" payable with
respect to the Leases which exist or are pending as of the date hereof are set
forth on SCHEDULE "J". Further, SCHEDULE "J-1" sets forth all "Tenant Inducement
Costs" and "Leasing Commissions" payable with respect to the vacant spaces
specified on said exhibits. For purposes hereof, "TENANT INDUCEMENT COSTS" shall
mean any payments required under a Lease to be paid by the landlord thereunder
(including the cost of work to be performed by or on behalf of the landlord) to
or for the benefit of the Tenant thereunder, which is in the nature of a tenant
inducement or concession, including, without limitation, rent concessions,
tenant improvement costs, and other work allowances, lease buyout costs, legal
fees and other expenses and moving allowances. The term "LEASING COMMISSIONS"
shall mean any leasing commission payable to any broker in connection with the
Leases for the initial term or any renewal, or extension period and/or expansion
option. As set forth on SCHEDULE "J", Tenant Inducement Costs and Leasing
Commissions, if any, then required to be performed by Seller under each of the
Leases will be fully performed, credited or paid for by Seller prior to, at or
subsequent to the Closing in accordance with the applicable Leases. Except as
set forth on SCHEDULE "J", as of the Effective Date, Seller has not committed to
any Tenant Inducement Costs and Leasing Commissions, repairs or other work
obligations for periods arising after the Closing; provided, however, that rent
abatements and rent concessions, if any, shown on SCHEDULE "J" for periods
subsequent to the Closing shall be credited at Closing. Tenant Inducement Costs
and Leasing Commissions, repairs and other work obligations, if any, set forth
on SCHEDULE "J-1" will not be fully performed, credited or paid for by Seller
prior to Closing; instead, Seller shall be responsible for such obligations
after Closing (including leasing commissions due to "Paramount" (as hereinafter
defined) or "HPMA" (as hereinafter defined), as applicable, under the management
agreement in connection with the leasing of such vacant spaces), and Seller
will, at its option, either: (i) provide Buyer with a credit at Closing against
the Purchase Price in the amount of such Tenant Inducement Costs and Leasing
Commissions, or (ii) pay such Tenant Inducement Costs and Leasing Commissions
directly to the new tenant(s) for such reasonable period of time following the
Closing not to exceed one (1) year. Buyer shall be solely responsible for the
tenant improvement costs, if any, for the renewals of any existing Leases, as
well as all leasing commissions due to Paramount or HPMA, as applicable, under
the applicable management agreement in connection with the renewals of such
existing Leases, including those tenant improvement costs and leasing
commissions set forth on SCHEDULE "J-2".
(f) All "MORTGAGE RESERVES", which shall mean all sums deposited by Seller
with a Lender as additional security for the payment of taxes, insurance,
repairs and replacements, tenant improvements and leasing commissions as of the
Effective Date are set forth on SCHEDULE "K", and those Mortgage Reserves that
exist as of the Closing in the ordinary course of Seller's business, shall be
credited to Seller at Closing and Buyer shall be solely responsible for Lender's
return of Mortgage Reserves to Buyer.
(g) All management agreements with respect to the Property are listed on
SCHEDULE "L". For purposes of this Agreement, "MANAGEMENT AGREEMENTS" shall mean
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all property management agreements, brokerage or leasing commission agreements
or agreements to compensate a third party for the management or leasing for the
Property on behalf of the Seller. As of the Closing and subject to Lender's
consent, all such management agreements shall be terminated by the Seller and,
with the exception of the new property management agreement between the Seller
and Healthcare Property Managers of America, LLC, a Florida limited liability
company d/b/a Paramount Real Estate Services ("HPMA"), an affiliate of Paramount
that Buyer will enter into and deliver at Closing as provided in paragraph
(a)(xii) of SCHEDULE "V" hereto, no property management compensation, brokerage
or leasing commissions or similar compensation will be due or payable by the
Seller or the Buyer (except as the result of any acts of the Buyer) with respect
to the Seller's ownership of the Property or any Lease (including any extensions
or renewals thereof) except as otherwise disclosed to Buyer in writing or set
forth herein.
(h) Except for the Lender's consent and any consent required under the
Ground Lease, the execution, delivery and performance of this Agreement by
Seller has been duly authorized and no consent of any other person or entity to
such execution, delivery and performance is required to render this document a
valid and binding instrument enforceable in accordance with its terms.
(i) To the extent that FIRPTA is applicable, Seller is not a "foreign
person" within the meaning of the United States tax laws, to which reference is
made in Internal Revenue Code Section 1445(b)(2) and, to the extent required by
FIRPTA, Seller will execute and deliver at Closing the FIRPTA certificate
attached hereto as SCHEDULE "M ".
(j) Subject to obtaining the Lender's consent to transfer of the Property
and any consent required under the Ground Lease, the entering into this
Agreement (and the sale of the Property to Buyer) (i) will not constitute a
violation or breach by Seller of: (a) the "Partnership Agreement" (as
hereinafter defined) or any contract, agreement, understanding or instrument to
which Seller is a party or by which Seller is subject or bound; or (b) any
judgment, order, writ, injunction or decree issued against or imposed upon them;
and (ii) will not result in the violation of any applicable law, order, rule or
regulation of any governmental or quasi-governmental authority.
(k) Subject to obtaining the Lender's consent to transfer of the Property
and any consent required under the Ground Lease, Seller does not need any
further consents, joinders or authorizations from any governmental or private
entity, corporation, partnership, individual or other entity to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions contemplated hereby, and, subject to the Permitted Exceptions and
the right of first refusal of Tempe St. Luke's Hospital, L.P., a Delaware
limited partnership under that certain Option Rights Agreement dated January 22,
1996, as amended, a copy of which has been provided by Seller to Buyer, the
Property is not subject to any rights of first refusal or options to purchase as
a result of the transactions contemplated herein, except as was previously
disclosed to Buyer in writing.
(l) Each of the Service Contracts in effect on the Effective Date are
listed on SCHEDULE "E" (the "SERVICE AGREEMENTS") and may be cancelled by the
Seller upon
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thirty (30) days written notice to the other party thereto, unless otherwise set
forth in the Service Contracts. Except for the Service Contracts, as of the
Effective Date, there are no service contracts, oral or written, with respect to
the Property or binding on the Seller.
(m) Except for the Permitted Exceptions, the Partnership Agreement, the
Leases, the Mortgage, the Management Agreements, the Licenses, the Service
Contracts and the Equipment Leases, all as set forth on the Exhibits hereto, and
except as disclosed in writing to Buyer, as of the Effective Date, there are no
other contracts or agreements, oral or written, with respect to the Seller that
will survive the Closing.
(n) Except as may be disclosed in the environmental report listed on
SCHEDULE "N", Seller has no knowledge, without any duty of further
investigation, of any generation, production, storage, treatment, discharge, or
release of any toxic or hazardous substance or pollutant on or under any portion
of the Property.
(o) Except as otherwise disclosed to Buyer on SCHEDULE "O", as of the
Effective Date, there are no (i) claims, actions, suits, condemnation actions or
proceedings pending or, to the best of Seller's knowledge, threatened (including
without limitation bankruptcy) against the Property, that would materially and
adversely affect the Property, or (ii) violations of any law, statute,
government regulations or requirement, including any private covenants or
restrictions, that would materially and adversely affect the Property.
(p) The Property is serviced by sufficient utilities offered by public
utility companies, and all assessments and charges owing to such utilities are
and will remain current through the last billing period prior to Closing and
will be pro-rated at Closing.
(q) The Property is subject to the Mortgage. Except for the Mortgage, to
the best of Seller's knowledge, without inquiry or investigation, the Property
is not subject to or encumbered by any other indebtedness caused by the Seller,
including but not limited to mechanic's or materialmen's liens or any other
monetary encumbrance caused by the Seller. Any mortgage, deed of trust or other
indebtedness or monetary encumbrance that is caused by the Seller and encumbers
the Property (other than the Mortgage) shall be paid by the Seller at Closing.
Any other monetary encumbrance shall be deemed a title defect to be governed in
accordance with Section 4(b) above.
(r) There are no due but unpaid real estate, income, sales or any other
federal, state or local tax liabilities of Seller, whether contingent or
otherwise, which affects the Property or which, by application of law or
otherwise, Buyer would become responsible for as a result of the acquisition of
the Property, other than sales tax due for the month of Closing, which shall be
prorated as hereinafter provided. Seller has no knowledge of any threatened tax
audit. Seller has each filed all required federal, state and local tax returns
and has made provision for the payment of such taxes, if any. There are no
present or pending disputes as to taxes of any nature and payable by Seller, or
proposed assessments or any federal, state or local taxes pending against
Seller.
(s) Attached hereto as SCHEDULE "Q" is a complete and correct list of all
insurance policies maintained with respect to the Property. All policies of
fire, liability
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and other forms of insurance with respect to the Property are in full force and
effect and all premiums due on or before the Closing Date have been or will be
paid on or before the Closing Date.
(t) All representations and warranties of Seller made in this Section 5
shall expire on the first (1st) anniversary of the Closing, except that if a
claim is made hereunder with respect to a breach of such representation and
warranty prior to the first (1st) anniversary of the Closing, then such
representation and warranty shall survive as to such claim until a full and
complete adjudication of such claim.
6. Representations of Buyer. Buyer represents and warrants to Seller that as of
the date hereof and as of the Closing Date:
(a) The execution, delivery and performance of this Agreement by Buyer has
been duly authorized and no consent of any other person or entity to such
execution, delivery and performance is required to render this document a valid
and binding instrument enforceable in accordance with its terms.
(b) The entering into this Agreement (and the purchase of the Property by
Buyer): (i) shall not constitute a violation or breach by Buyer of: (x) any
contract, agreement, understanding or instrument to which it is a party or by
which Buyer are subject or bound; or (y) any judgment, order, writ, injunction
or decree issued against or imposed upon Buyer; and (ii) will not result in the
violation of any applicable law, order, rule or regulation of any governmental
or quasi-governmental authority.
(c) Subject to obtaining the Lender's consent and any consent required
under the Ground Lease, Buyer does not need any further consents, joinders or
authorizations from any governmental or private entity, corporation,
partnership, individual or other entity to execute, deliver and perform their
obligations under this Agreement, and to consummate the transactions
contemplated hereby.
All representations and warranties of Buyer made in this Section 6 shall
expire on the first (1st) anniversary of the Closing, except that if a claim is
made hereunder with respect to a breach of such representation and warranty
prior to the first (1st) anniversary of the Closing, then such representation
and warranty shall survive as to such claim until a full and complete
adjudication of such claim.
7. Closing. Subject to satisfaction or waiver of all conditions precedent to
Seller's and Buyer's obligations to sell and purchase the Property,
respectively, the transaction contemplated by this Agreement shall be
consummated in accordance with this Agreement (the "CLOSING") on December 5,
2005 or such earlier date agreed to by Seller and Buyer in writing or such later
date as may be expressly provided for in this Agreement (the date upon which the
Closing occurs is referred to as the "CLOSING DATE"). Seller agrees that within
five (5) days of the Effective Date that it shall provide written notice of this
Agreement to Tempe St. Luke's Hospital, L.P., a Delaware limited partnership
under that certain Option Rights Agreement dated January 22, 1996, as amended,
and Closing under this Agreement is contingent upon the waiver or expiration of
the right of first refusal pursuant to that certain Option Rights Agreement
dated
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January 22, 1996, as amended. Notwithstanding anything to the contrary contained
herein, in the event that Tempe St. Luke's Hospital, L.P., elects to exercise
its right of first refusal, such exercise shall not constitute a default of
either party under this Agreement, but all rights and obligations of the Parties
under this Agreement shall be suspended pending closing by Tempe St. Luke's
Hospital, L.P.. If such closing occurs, the same shall constitute a termination
of this Agreement and neither party shall have any further liability to the
other party hereunder. If Tempe St. Luke's Hospital, L.P. does not close, then
the rights and obligations of the Parties under this Agreement shall be
reinstated, provided that the Closing Date shall be adjusted accordingly and no
Party shall be in default hereunder as a result of any delay in closing
hereunder as a result of the failure to close by Tempe St. Luke's Hospital. The
Closing will take place at the offices of Seller or Seller's legal counsel, in
Palm Beach County, Florida. Notwithstanding the foregoing, Seller and Buyer
shall work cooperatively and in good faith to effectuate an "escrow closing" as
opposed to a "sit-down" closing pursuant to a written escrow agreement
acceptable to Seller and Buyer and their respective counsel. The Parties shall
not be obligated to purchase or to sell the Property or close the transactions
contemplated hereunder with respect to the Property until the conditions
precedent to such Party's respective obligations as set forth herein are
completely satisfied or waived. If, at or prior to the Closing, one or more of
the conditions precedent to a Party's obligation are not completely satisfied or
waived, such Party shall provide written notice to other Party of the
unsatisfied conditions precedent and both Parties agree to use their
commercially reasonable efforts to satisfy all conditions precedent to their
respective obligations to close. If the conditions precedent are still not
satisfied as of Closing, and unless Buyer or Seller waives, in writing, such
conditions precedent to their respective obligations to close, as applicable,
then Seller, in its sole discretion, may extend the Closing of the transaction
contemplated under this Agreement for up to thirty (30) days to permit
satisfaction of the conditions precedent. If Seller elects not to extend the
Closing, or the Closing is extended but the conditions precedent are not
satisfied or waived notwithstanding such extension, then this Agreement shall
terminate. The foregoing election by Seller shall be made in Seller's sole
discretion. If this Agreement is terminated, then the parties shall thereafter
be released from all further obligations under this Agreement, except those
specifically provided herein to survive the termination of this Agreement.
(a) If all conditions precedent to Seller's and Buyer's obligations to sell
and purchase the Property, respectively, as set forth in this Agreement, have
been satisfied or waived, as applicable by the respective parties, except the
requirement that the Lender consent to the transfer of the Property and the
Releases (collectively, the "REQUIRED LENDER CONSENTS"), and except for the
"Settlement Statements" (as defined in SCHEDULE "W") and any other documents
that cannot practically be delivered until the actual Closing Date is known,
then the following provisions shall apply:
(i) Seller, in its sole discretion, may extend the Closing of the
transaction contemplated under this Agreement for up to thirty (30) days to
permit Buyer and Seller to acquire the Required Lender Consents; or,
(ii) If Seller elects not to extend the Closing, or if the Closing is
extended but the Required Lender Consents are not received within the extension
period,
10
then, notwithstanding such extension, Seller shall, upon written notice to
Buyer, elect either to:
(1) Terminate this Agreement, in which event the Parties shall
thereafter be released from all further obligations under this Agreement, except
those specifically provided herein to survive the termination of this Agreement;
or
(2) Require that the Property be closed in escrow, pursuant to an
escrow agreement between the Seller and Buyer in the form of EXHIBIT "C" hereto
(the "ESCROW AGREEMENT"), pending either: (i) receipt of the Required Lender
Consents; or (b) defeasance or satisfaction of such Mortgage by Buyer in
accordance with this Section 7(a). The terms of defeasance or satisfaction of
the Mortgage are summarized on SCHEDULE "B-2", provided that such exhibit is
intended as a summary only and the terms of Buyer's obligation to defease or
satisfy the Mortgage shall be in accordance with the Mortgage and/or Loan
Documents.
The foregoing election by Seller shall be made in Seller's sole discretion.
(iii) If the Closing is deferred under this Section 7(a), on or before
Closing Date, Buyer shall deposit into escrow with the closing agent, the full
Purchase Price for the Property, together with all additional amounts necessary,
in Seller's reasonable determination, for satisfaction or defeasance of the
Mortgage (including all amounts required for defeasance, yield maintenance, and
prepayment penalties as summarized on SCHEDULE "B-2", as well as additional
costs for payment other than on a regularly scheduled Mortgage payment date, or
otherwise as applicable) (collectively referred to herein as the "DEFEASANCE
DEPOSIT"). Provided that Buyer has made a full and timely deposit of the
Defeasance Deposit with the closing agent, and provided further that there is a
reasonable likelihood of obtaining the Required Lender Consents within fifteen
(15) days following the Closing Date, as determined by Buyer in its reasonable
discretion, then Buyer shall have the right, upon written notice delivered to
Seller with the Defeasance Deposit, to have Seller forebear, for a period of
fifteen (15) days following the Closing Date, from delivering notice to the
Lender of the intent to satisfy or defease the Mortgage ("BUYER'S EXTENSION").
With the exception of the "Settlement Statements" (as defined in SCHEDULE "W")
and any other documents that cannot practically be delivered until the actual
Closing Date is known, all other documents and deliverables required under this
Agreement shall be deposited with the closing agent on or before the Closing
Date. If the Required Lender Consents are not received at the expiration of the
Buyer's Extension Period, or if Buyer does not elect to extend the Closing, then
Seller shall give written notice to the Lender, within five (5) days after
Closing or five (5) days after the expiration of Buyer's Extension, as
applicable, that the Mortgage will be satisfied or defeased (as applicable). At
the expiration of the Lender's notice period for satisfaction or defeasance of
the Lender's Mortgage, or earlier if agreed to by the Lender, the closing agent
will disburse to the Lender the amounts necessary to defease or otherwise
satisfy the Mortgage and disburse the balance of the Defeasance Deposit in
accordance with the Escrow Agreement.
(b) At Closing, Seller and Buyer will deliver (or cause to be delivered) to
each other the documents, and will take the actions, set forth on SCHEDULE "V".
11
(c) The Purchase Price for the Property shall be subject to prorations as
set forth in SCHEDULE "W".
(d) Buyer agrees to indemnify Seller with respect to the request for the
Lender's approval of this transaction as set forth in SCHEDULE "X".
8. Closing Costs. Buyer shall be responsible for (i) the costs associated with
all inspections performed by Buyer with respect to the Seller and/or the
Property, (ii) the costs to obtain title insurance commitments, the premiums on
the owner's coverage on the title insurance policies and any endorsements issued
to Buyer pursuant to the commitments, and the costs of any lender's policy or
endorsements; (iii) the cost of any surveys of the Property (if obtained by
Buyer); (iv) the costs of recording any closing documents, including (without
limitation) all documentary stamps, transfer taxes and other such costs; (v) all
loan costs and fees charged by the Lender with regard to Lender's approval of
the transfer of the Property (to the extent that the Lender imposes assumption
fees in connection with the transfers of the Property, Seller shall reasonably
cooperate with Buyer to attempt to get such fees reduced or waived; however,
Buyer hereby acknowledges and agrees that any such fees shall be the sole
responsibility of Buyer); and (vi) the reimbursement to Seller of all financing
fees and costs shown on SCHEDULE "Y". Each Party shall be responsible for
payment of its own legal fees, except as otherwise provided herein.
9. Covenants of Seller.
(a) Seller will, during the term of this Agreement, operate the Property in
a manner consistent with prior operations from the Effective Date through the
Closing Date or earlier termination of this Agreement.
(b) At or prior to the Closing, Seller shall promptly notify Buyer of any
material change in any condition with respect to the Property or of any event or
circumstance of which Seller becomes aware that makes any representation or
warranty of Seller to Buyer that is required to be true at Closing under this
Agreement materially untrue or materially misleading, or that makes any covenant
of Seller under this Agreement incapable or less likely of being performed, it
being understood that the obligation to provide notice to Buyer under this
Section shall in no way relieve Seller of any liability for a breach by Seller
of any of its representations, warranties or covenants under this Agreement
which breach is directly caused by Seller.
(c) Prior to the termination of this Agreement by either Seller or Buyer in
accordance with the terms hereof, no party hereto shall negotiate or enter into
any agreement with respect to the sale of the Property with any person or entity
other than Buyer, either directly or indirectly through Seller's agents,
employees, partners or directors.
10. Condemnation and Insurance.
(a) If, prior to the Closing Date, any portion of the Property (i) is
destroyed or damaged and the cost to rebuild or repair the Property exceeds Five
Percent (5%) of the Purchase Price, as reasonably estimated by a contractor
retained by Buyer and reasonably
12
acceptable to Seller, or (ii) becomes the subject of any condemnation or eminent
domain proceedings, which reduces the value of the Property by more than Five
Percent (5%) of the Purchase Price, as reasonably estimated by an appraiser
retained by Buyer and reasonably acceptable to Seller, then Seller shall
promptly notify Buyer of the same and Seller shall elect to: (1) terminate this
Agreement, and the Parties shall thereafter be released from all further
obligations under this Agreement, except those obligations specifically provided
herein to survive the termination of this Agreement, or (2) consummate this
transaction with no reduction in the Purchase Price, in which event Seller will
deliver to Buyer at Closing a duly executed assignment of Seller's interest in
any award made or to be made in connection with such condemnation or eminent
domain proceedings or a duly executed assignment of Seller's claim in any
insurance proceeds (including without limitation, any business income insurance
proceeds) made or to be made in connection with such damage or destruction.
Except as set forth above, risk of loss to the Property from fire or other
casualty or condemnation shall be borne by Seller until the Closing.
(b) If, prior to the Closing Date, any portion of the Property is destroyed
or damaged resulting in a total rent abatement or a partial rent abatement
exceeding fifteen percent (15%) of the rentals provided under the Leases for the
Property, Seller shall have (i) the rights set forth in clauses (1) and (2) of
Section 10(a) above, and (ii) the right, if Seller elects not to terminate this
Agreement, upon written notice to Buyer to extend the Closing for a period not
to exceed sixty (60) days from the date of such damage or destruction.
(c) Seller will, at all times following the execution and delivery of this
Agreement and until the Closing, maintain in full force, liability and hazard
insurance with respect to the Property.
11. Default/Guarantor.
(a) If Seller fails to fulfill any of its respective obligations under this
Agreement, including the obligation to convey the Property to Buyer in
accordance with this Agreement, then Buyer will have the right to receive
liquidated damages from Seller, in which event, Seller shall pay Buyer the total
maximum sum of One Hundred Thousand Dollars ($100,000.00) for any one or more
breaches of this Agreement (i.e., the total amount for which Seller may be
liable in the aggregate shall be $100,000.00 regardless of the number of
breaches), as liquidated damages and not as a penalty, to compensate Buyer for
its damages as a result of Seller's breaches of this Agreement. The Parties
acknowledge that Buyer's actual damages as a result of Seller's breaches of this
Agreement would be difficult, if not impossible, to ascertain, and this amount
represents the Parties' agreement as to the liquidated damages due to Buyer. The
right of Buyer to receive liquidated damages as provided in this Section 11(a)
shall terminate in the event that Closing occurs, and thereafter Buyer's
remedies for any of Seller's breaches of this Agreement shall be such remedies
as may be available at law or in equity; provided, however, that regardless of
whether any breaches or defaults by Seller under this Agreement occur
pre-Closing or post-Closing, in no event will Seller be liable for any
consequential, speculative, or punitive damages for any breaches of or defaults
under this Agreement.
13
(b) If Buyer fails to fulfill any of its respective obligations under this
Agreement, including (without limitation) the obligation to purchase the
Property from Seller in accordance with this Agreement, then Seller will have
the right (i) to file an action for specific performance of this Agreement that
compels Buyer to consummate the transactions and perform in strict accordance
with the terms and conditions of this Agreement, provided Seller in its sole
discretion may waive any such terms or conditions; or (ii) Seller may elect to
receive liquidated damages from Buyer, in which event Buyer shall pay to Seller
the sum of Three Hundred Thousand Dollars ($300,000.00) for any one or more
breaches of this Agreement (i.e., the total amount for which Buyer may be liable
in the aggregate shall be $300,000.00 regardless of the number of breaches), as
liquidated damages and not as a penalty to compensate Seller for its damages as
a result of Buyer's breach(es) of this Agreement. The Parties acknowledge that
Seller's actual damages as a result of Buyer's breaches of this Agreement would
be difficult, if not impossible, to ascertain, and this amount represents the
Parties' agreement as to the liquidated damages due to Seller in the aggregate.
The right of Seller to receive liquidated damages as provided in this Section
11(b) shall terminate in the event that Closing occurs, and thereafter Seller's
remedies for any of Buyer's breaches of this Agreement shall be such remedies as
may be available at law or in equity; provided, however, that regardless of
whether any breaches or defaults by Buyer under this Agreement occur pre-Closing
or post-Closing, in no event will Buyer be liable for any consequential,
speculative, or punitive damages for any breaches of or defaults under this
Agreement.
(c) Seller's Guarantor hereby agrees that it shall unconditionally
guarantee Seller's obligation for the payment of the liquidated damages set
forth in subsection (a) above. Simultaneously with the execution and delivery of
this Agreement by Seller, Seller's Guarantor shall execute and deliver to Buyer
a Guaranty in the form attached hereto as EXHIBIT "D". This provision shall
survive the termination of this Agreement.
(d) Buyer's Guarantor hereby agrees that it shall unconditionally guarantee
all obligations of Buyer under this Agreement, including but not limited to, the
payment of the liquidated damages set forth in subsection (b) above.
Simultaneously with the execution and delivery of this Agreement by Buyer,
Buyer's Guarantor shall execute and deliver to Seller a Guaranty in the form
attached hereto as EXHIBIT "E". This provision shall survive the termination of
this Agreement.
12. Notices. All notices, requests and other communications under this Agreement
must be in writing and sent by U.S. registered or certified mail, postage
prepaid and return receipt requested, overnight courier service, or telecopier,
addressed as follows:
If to Seller: 0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Telecopier No.: 000-000-0000
With copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
14
Attention: Xxxxxxxx X. Xxxxxxx
Telecopier No.: 000-000-0000
If to Buyer: c/o Windrose Medical Properties, L.P.
Attn: Xxxx Xxxxxx, President
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
With copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Property Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
All notices will be deemed received three (3) days after mailing; one (1)
day after delivery to an overnight courier service; or the same day, if
telecopied, provided that the telecopier confirmation is received or is
evidenced from the telecopy equipment of the sender.
13. Brokers. Seller and Buyer represent and warrant to each other that they have
not dealt with any broker, finder or other intermediary in connection with the
transaction contemplated by this Agreement. Each Party will indemnify and hold
harmless the other party from and against any and all losses, damages, claims,
costs and expenses (including attorney's fees and expenses) in any way resulting
from or connected with any claims or suits for any broker's commission, finder's
fee or other like compensation, made or brought by any other person or entity
claiming to have dealt with the such party in breach of the foregoing
representation.
14. Assignment. Buyer shall have the right, upon prior written notice to Seller,
to assign this Agreement to any entities controlled by, in control of or under
common control with Buyer (each a "PERMITTED ASSIGNEE"), provided that such
assignment shall not relieve Buyer of its obligations hereunder, and provided
further that, at the time of such assignment, Buyer, Buyer's Guarantor and the
Permitted Assignee shall execute and deliver to Seller a written agreement
pursuant to which Buyer unconditionally assigns its interests in this Agreement
to the Permitted Assignee, the Permitted Assignee unconditionally assumes and
agrees to perform all of the obligations of Buyer pursuant to this Agreement,
and Buyer and Buyer's Guarantor re-affirm their continuing liability for all
obligations of Buyer under this Agreement. Other than the Permitted Assignee,
Buyer shall not assign any or all of its rights and obligations pursuant to this
Agreement (whether by direct or indirect transfer or assignment) without
Seller's prior written consent, which may be granted or withheld in Seller's
sole discretion. Notwithstanding anything to the contrary contained herein, no
permitted assignment shall be of any force and effect, if as a result thereof,
any third party approvals or consents required hereunder are adversely affected.
Notwithstanding the foregoing, assignment by Buyer to any additional entities to
be formed for purposes of these transactions by Windrose Medical Property, L.P.
shall be Permitted Assignees and assignment of Buyer's rights to such
15
assignees shall not require prior written notice to Seller, provided that such
Permitted Assignees are owned and controlled by Windrose Medical Property, L.P.,
and such Permitted Assignees join in this Agreement by written acknowledgment to
Seller as provided above.
15. Miscellaneous.
(a) Invalidity. In the event any term or provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid,
such provision shall be given its nearest legal meaning or be construed as
deleted as such authority determines, and the remainder of this Agreement shall
be construed to be in full force and effect.
(b) Entire Understanding; No Oral Modification. This Agreement and the
exhibits hereto contain the entire understanding between the Parties hereto and
may not be changed or terminated orally.
(c) Waiver. Any waiver by any Party of any provision of this Agreement or
breach thereof will not operate or be construed as a waiver of any other
provision or subsequent breach thereof. Any waiver by of a Party must be in
writing to be effective.
(d) Post-Closing Default/Attorney's Fees. In the event that a Party
defaults after the Closing in its obligations under this Agreement that survive
the Closing, then the non-defaulting Party may pursue any right or remedy
available to such non-defaulting Party for the period permitted under this
Agreement; provided however, that a defaulting Party shall not be liable for any
consequential, speculative or punitive damages for any post-Closing breach or
default under this Agreement. In the event of any litigation between the Parties
over the terms of this Agreement, the non-prevailing Party will pay all
reasonable attorney's fees and costs at all levels to the prevailing Party.
Wherever provision is made in this Agreement for "attorneys' fees," such term
shall be deemed to include accountants' and attorneys' fees and court costs,
whether or not litigation is commenced, including those for appellate and
post-judgment proceedings and for paralegals and similar persons.
(e) Florida Law; Binding Effect; Jurisdiction and Venue. The laws of the
State of Florida shall govern the interpretation, enforcements and performance
of this Agreement. Seller and Buyer agree and consent to the exclusive
jurisdiction of the circuit courts of Palm Beach County, Florida, and/or of the
United States District Court for the Southern District of Florida, whichever may
be appropriate in any and all actions or proceedings arising directly or
indirectly under this Agreement. Furthermore, Seller and Buyer agree that the
execution and performance of this Agreement constitute sufficient contact with
Florida for the purposes of establishing personal jurisdiction in Florida. By
execution of this Agreement, each of the undersigned hereby waives any and all
defenses it may have to claim a lack of personal jurisdiction by Florida courts.
The Parties also waive all claims to the right of venue in any court outside of
the State of Florida.
16
(f) Counterparts. This Agreement may be executed in multiple counterparts,
each of which will be deemed to be an original and all of which, together, will
constitute one and the same document. A facsimile signature shall be deemed to
be an original.
(g) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY KNOWINGLY AND
VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY CLAIMS
ARISING OUT OF THIS AGREEMENT.
(h) Preparation of Agreement. Each Party has participated fully in the
negotiation and preparation of this Agreement with full benefit of counsel.
Accordingly, this Agreement shall not be more strictly construed against any
Party.
(i) References and Captions. Whenever used in this Agreement, the singular
shall include the plural, the plural shall include the singular, any gender
shall include every other and all genders, and captions and paragraph headings
shall be disregarded. The captions in this Agreement are for the convenience of
reference only and shall not be deemed to alter any provision of this Agreement.
All references in this Agreement to exhibits, schedules, paragraphs,
subparagraphs and sections refer to the respective subdivisions of this
Agreement, unless the reference expressly identifies another document.
Typewritten or handwritten provisions, which are inserted in or attached to this
Agreement as addenda or riders shall control all printed or pretyped provisions
of this Agreement with which they may be in conflict.
(j) Time Periods. Any time period provided for in this Agreement that shall
end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m.
(Indianapolis Time) of the next full business day.
(k) Binding Agreement. All of the terms of this Agreement shall be binding
upon and shall inure to the benefit of the Parties to this Agreement and their
respective successors and assigns.
(l) Announcements. Seller acknowledges and agrees that, upon execution and
delivery of this Agreement by all of the Parties, Buyer shall issue a press
release and shall file with the SEC Form 8-K, and that Buyer shall have the
right thereafter to make such further announcements (including press releases)
and disclosures regarding this Agreement as required by SEC requirements or as
directed by Buyer's securities counsel.
(SIGNATURES APPEAR ON FOLLOWING PAGE)
17
IN WITNESS WHEREOF, the undersigned have dully executed this Agreement of
the Effective Date.
SELLER:
AZ-TEMPE LUKE LIMITED PARTNERSHIP,
a Florida limited partnership
By: AZ-TEMPE LUKE, INC., a Florida
corporation, its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE TEMPE PROPERTIES, L.P.,
a Delaware limited partnership
BY: Its Managing Member
WMPT TEMPE MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
18
JOINDER OF GUARANTORS
The undersigned, as Buyer's Guarantor and Seller's Guarantor, hereby join
in this Agreement solely for the purposes specified therein with respect to
Buyer's Guarantor and Seller's Guarantor, respectively.
WINDROSE MEDICAL PROPERTIES TRUST,
a Maryland REIT
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
MEDICAL OFFICE PORTFOLIO LIMITED
PARTNERSHIP, a Florida limited partnership
By: MEDICAL PORTFOLIO INVESTORS
LIMITED PARTNERSHIP, a Florida limited partnership,
General Partner of Medical Office Portfolio Limited Partnership
By: MEDICAL PORTFOLIO EQUITY CORPORATION,
a Florida corporation, General Partner of Medical Portfolio
Investors Limited Partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
19
LIST OF EXHIBITS
Exhibit "A" Land
Exhibit "B" Ground Lease
Exhibit "C" Escrow Agreement
Exhibit "D" Seller's Guaranty
Exhibit "E" Buyer's Guaranty
EXHIBIT A
Xxx 0, XXXXX XX. XXXXX XXXXXXXX, a subdivision recorded in Book 497 of Maps,
page 4, records of Maricopa County, Arizona.
EXHIBIT "B"
TEMPE
GROUND LEASE
GROUND LEASE
BETWEEN
MEDITRUST OF ARIZONA, INC.,
A DELAWARE CORPORATION,
AND
TEMPE ST. LUKE'S INVESTORS LIMITED PARTNERSHIP
AN ARIZONA LIMITED PARTNERSHIP
Dated as of January 22, 1996
(Tempe St. Luke's Hospital, Tempe, Arizona)
TABLE OF CONTENTS
RECITALS..............................................................................1
ARTICLE 1 - DEMISE OF GROUND LEASED PREMISES..........................................1
SECTION 1.1. GROUND LEASED PREMISES.............................1
SECTION 1.2. TAXABLE PARCEL.....................................1
SECTION 1.3. LESSOR'S WARRANTY OF TITLE.........................1
SECTION 1.4. QUIET ENJOYMENT....................................1
SECTION 1.5. UTILITY EASEMENTS..................................2
SECTION 1.6. PARKING AND ACCESS.................................2
SECTION 1.7. DOCUMENTARY STAMP TAX AND INTANGIBLE TAX...........3
ARTICLE 2 - LEASE TERM................................................................3
SECTION 2.1. LEASE COMMENCEMENT.................................3
SECTION 2.2. LEASE TERM.........................................3
SECTION 2.3. RENT COMMENCEMENT..................................3
SECTION 2.4. REVERSION..........................................3
ARTICLE 3 - RENT, TAXES AND UTILITIES.................................................4
SECTION 3.1. BASE ANNUAL RENT...................................4
SECTION 3.2. TAXES..............................................4
SECTION 3.3. UTILITIES..........................................5
SECTION 3.4. NO SECURITY DEPOSIT................................5
SECTION 3.5. DEVELOPMENT FEES...................................5
SECTION 3.6. TRIPLE NET RENT....................................5
ARTICLE 4 - USE OF PREMISES...........................................................6
SECTION 4.1. PRIMARY USE........................................6
SECTION 4.2. TERMINATION IF USE BECOMES UNLAWFUL,
IMPOSSIBLE OR IMPRACTICAL..........................6
SECTION 4.3. HAZARDOUS MATERIALS................................6
SECTION 4.4. OPERATION OF HOSPITAL..............................9
ARTICLE 5 - [INTENTIONALLY OMITTED]...................................................10
ARTICLE 6 - ENCUMBRANCE OF LEASEHOLD ESTATE AND FEE ESTATE............................10
SECTION 6.1. LESSEE'S RIGHT TO ENCUMBER.........................10
SECTION 6.2. LESSEE'S OBLIGATIONS...............................10
SECTION 6.3. RIGHTS OF LEASEHOLD MORTGAGEE......................10
SECTION 6.4. NOTICES............................................11
SECTION 6.5. SUBORDINATION OF FEE ESTATE........................11
ARTICLE 7 - MAINTENANCE...............................................................13
SECTION 7.1. MAINTENANCE OF GROUND LEASED PREMISES..............13
SECTION 7.2. EMERGENCY REPAIRS..................................13
SECTION 7.3. APPROVAL OF MANAGEMENT COMPANY.....................13
i
ARTICLE 8 - MECHANICS' UENS...........................................................13
SECTION 8.1. PROHIBITION OF LIENS ON FEE OR
LEASEHOLD INTEREST.................................13
SECTION 8.2. REMOVAL OF LIENS BY LESSEE.........................13
ARTICLE 9 - CONDEMNATION..............................................................14
SECTION 9.1. INTERESTS OF PARTIES ON CONDEMNATION...............14
SECTION 9.2. TOTAL TAKING - TERMINATION.........................14
SECTION 9.3. PARTIAL TAKING - TERMINATION.......................14
SECTION 9.4. PARTIAL TAKING - CONTINUATION WITH
RENT ABATEMENT.....................................14
SECTION 9.5. PARTIAL TAKING - AWARD.............................14
SECTION 9.6. ALLOCATION OF AWARD................................14
SECTION 9.7. VOLUNTARY CONVEYANCE...............................15
ARTICLE 10-ASSIGNMENT AND SUBLEASE....................................................15
SECTION 10.1. LIMITATION ON ASSIGNMENT AND SUBLETTING............15
SECTION 10.2. LEASES TO TENANTS OF THE MOB.......................16
ARTICLE 11 - INSURANCE AND INDEMNIFICATION............................................16
SECTION 11.1. COMPREHENSIVE LIABILITY INSURANCE..................16
SECTION 11.2. FIRE AND EXTENDED COVERAGE PROPERTY
INSURANCE..........................................16
SECTION 11.3. WAIVER OF SUBROGATION..............................17
SECTION 11.4. INDEMNIFICATION....................................17
ARTICLE 12 - DAMAGE AND DESTRUCTION...................................................17
SECTION 12.1. LESSEE'S DUTY TO RESTORE PREMISES..................17
SECTION 12.2. OPTION TO TERMINATE LEASE FOR DESTRUCTION..........18
SECTION 12.3. APPLICATION OF INSURANCE PROCEEDS..................18
ARTICLE 13 - DEFAULTS AND REMEDIES....................................................19
SECTION 13.1. DEFAULTS...........................................19
SECTION 13.2. REMEDIES...........................................20
SECTION 13.3. REMEDIES CUMULATIVE................................21
SECTION 13.4. LESSEE'S LIABILITY AFTER DEFAULT...................21
SECTION 13.5. HOLDOVER...........................................21
SECTION 13.6. RIGHT OF OHP TO ASSUME LEASE.......................22
ARTICLE 14 - SURRENDER AND REMOVAL....................................................22
SECTION 14.1. SURRENDER OF POSSESSION............................22
SECTION 14.2. LESSEE'S QUITCLAIM.................................22
ARTICLE 15-[INTENTIONALLY OMITTED]....................................................22
ii
ARTICLE 16 - GENERAL PROVISIONS
SECTION 16.1. CONDITIONS AND COVENANTS..........................23
SECTION 16.2. SURVIVAL OF INDEMNITIES............................23
SECTION 16.3. NO WAIVER OF BREACH................................23
SECTION 16.4. INTENTIONALLY OMITTED..............................23
SECTION 16.5. UNAVOIDABLE DELAY-FORCE MAJEURE....................23
SECTION 16.6. NOTICES............................................23
SECTION 16.7. GENDER.............................................24
SECTION 16.8. CAPTIONS...........................................24
SECTION 16.9. ENTIRE AGREEMENT...................................24
SECTION 16.10. WAIVER AMENDMENT...................................24
SECTION 16.11. ATTORNEY'S FEES....................................24
SECTION 16.12. TIME...............................................24
SECTION 16.13. GOVERNING LAW......................................24
SECTION 16.14. BINDING EFFECT.....................................24
SECTION 16.15. EXECUTION OF OTHER INSTRUMENTS.....................25
SECTION 16.16. SEVERABILITY.......................................25
SECTION 16.17. COUNTERPARTS.......................................25
SECTION 16.18. ESTOPPEL CERTIFICATE...............................25
SECTION 16.19. GOOD STANDING......................................25
SECTION 16.20. MEMORANDUM OF LEASE................................25
SECTION 16.21. WAIVER OF TRIAL BY JURY............................25
EXHIBITS
EXHIBIT "A" - LEGAL DESCRIPTION OF LAND
EXHIBIT "B" - LEGAL DESCRIPTION OF GROUND LEASED PREMISES
EXHIBIT "C" - PERMITTED ENCUMBRANCES
EXHIBIT "D" - FORM OF APPROVED TENANT LEASE
EXHIBIT "E" - MEMORANDUM OF LEASE
iii
GROUND LEASE
THIS GROUND LEASE ("LEASE") is made and entered into by MEDITRUST OF
ARIZONA, INC., a Delaware corporation ("LESSOR") and TEMPE ST. LUKE'S INVESTORS
LIMITED PARTNERSHIP, an Arizona limited partnership ("LESSEE"), dated as of
January 22, 1996 (the "EFFECTIVE DATE").
RECITALS
This Lease is entered into upon the basis of the following facts,
understandings and intentions of the parties:
A. Lessor is the fee owner of that certain real property consisting of
approximately 11.2325 acres (the "LAND"), a portion of which is improved with
Tempe St. Luke's Hospital and related facilities, located in the County of
Maricopa, State of Arizona. The Land is legally described in EXHIBIT "A"
attached hereto and incorporated herein by this reference.
X. Xxxxxx desires to lease to Lessee, as the Ground Leased Premises
(the "GROUND LEASED PREMISES"), that certain portion of the Land designated for
construction of A medical office building on that certain site plan for Tempe
St. Luke's New Medical Office Building prepared by The Xxxxxx/Xxxxxxx
Partnership under Job Number 95066 and dated June 30,1995, as the same may be
amended from time to time (the "SITE PLAN"), and Lessee desires to lease the
Ground Leased Premises from Lessor in order for Lessee to cause the construction
of and own, manage and operate a new medical office building (the "MOB") with
approximately 62,300 gross square feet. The Ground Leased Premises is legally
described on EXHIBIT "B", and has been approved by Lessor and Lessee.
C. The parties desire to establish the terms and conditions of the
Lease to fulfill the foregoing objectives.
NOW, THEREFORE, in consideration of the mutual covenants and promises
of the parties, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree that the foregoing recitals are true and correct and
incorporated herein by this reference, and further agree as follows:
ARTICLE 1 - DEMISE OF GROUND LEASED PREMISES
Section 1.1. Ground Leased Premises. Lessor, for and in consideration
of the rents, covenants and conditions herein set forth, does hereby lease to
Lessee, and Lessee does hereby lease from Lessor, the Ground Leased Premises,
subject to the terms, conditions and provisions hereof.
Section 1.2 Taxable Parcel. Lessee shall undertake all reasonable
actions necessary to identify the Ground Leased Premises as a separate taxable
parcel, in compliance with applicable state and local laws.
Section 1.3. Lessor's Warranty of Title. Lessor hereby represents and
warrants that it is the fee owner of the Ground Leased Premises.
Section 1.4. Quiet Enjoyment. Lessor covenants and agrees that Lessee,
upon paying the rent and other charges herein provided and observing and keeping
the covenants, conditions, and terms of this Lease on Lessee's part to be kept
or performed, shall lawfully and quietly hold, occupy and enjoy the
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Ground Leased Premises during the "Term" (which term is hereinafter defined) of
this Lease without hindrance of Lessor or any person claiming under Lessor.
Notwithstanding the foregoing, Lessor hereby retains the right to enter upon and
inspect the Ground Leased Premises and MOB at reasonable times and upon
reasonable notice, and each lease with the physician tenant occupants of the MOB
shall contain a provision as to this reserved right. Lessor further reserves the
right to enter upon the Ground Leased Premises and MOB, without prior notice, in
the event of an emergency condition or situation, as reasonably determined by
Lessor.
Section 1.5. Utility Easements.
Section 1.5.1. Easement Agreements. Lessee shall have the
right to enter into agreements with utility companies creating easements in
favor of such companies as are required in order to service the MOB to be
constructed on the Ground Leased Premises; provided, however, that any such
easements (i) may only be located within those areas of the Land which will not
interfere with any improvements now located upon the Land or constructed in
connection with the MOB, or the location of easements and utilities now and
hereafter servicing the improvements existing upon the Land; (ii) have been
approved by Lessor as to their location and the form of the easement agreement,
in Lessor's sole discretion; and (iii) may only be granted as non-exclusive
easements. Lessor agrees to join in the grant of any such utility easements and
to execute any and all documents, agreements and instruments in order to
effectuate the same, all at Lessee's cost and expense. Lessor agrees not to
unreasonably withhold its consent to any proposed utility easement joinder so
long as the easement is approved by and acceptable to Lessor as described above.
In addition, Lessee agrees, where requested by Lessor, to join in the grant of
such easements and to execute any and all documents, agreements, and instruments
and to take all other actions in order to effectuate the same in the event
Lessee's joinder is required in connection with any easements affecting any
portion of the Land. The parties agree to use reasonable efforts to cause any
encumbrances on the Ground Leased Premises to be subordinate to such easements,
as may be required by any utility companies.
Section 1.5.2. Additional Easement Rights and Obligations.
With regard to the utility easements referred to herein, Lessee shall (i) have
the right to cause the construction of the utility improvements by Dasco
Development Corporation, a Florida corporation, which is an affiliate of Lessee
and is constructing the MOB on behalf or Lessee ("DASCO"), or the utility
company, as the case may be; and (ii) maintain the utility easement areas
subject to and in accordance with the easement agreements and the "DEA" (as
defined below).
Section 1.6. Parking and Access. Lessor and Lessee hereby
agree that they will enter into a declaration of easement agreement ("DEA"),
wherein easements for parking, access, ingress and egress, and utilities will be
granted for the benefit of the Ground Leased Premises over the parking areas
existing from time to time upon the Land, subject to and in accordance with the
terms of the DEA. Under the DEA, Lessor will retain the right to relocate the
parking areas and internal roadways from time to time so long as such relocation
does not materially interfere with the easements granted under the DEA.
Section 1.6.1. Reciprocal Parking. With respect to the parking
areas from time to time located on the Land, the parking rights for the benefit
of the Ground Leased Premises will be in common with all other parties permitted
by Lessor to use those parking areas. The DEA will provide for the right of
Lessor to establish rules and regulations governing the use of the parking areas
upon the Land subject thereto.
Section 1.6.2. Construction Rights. In addition to the
parking, access and utility rights to be granted under the DEA, the DEA will
also provide for and grant to Lessee the right to construct or
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TSTLGROU.LE4 Page 2 1/19/96
cause the construction of the parking areas depicted on the Site Plan, as well
as all approved internal roadways for ingress and egress and utilities.
Section 1.7. Documentary Stamp Tax and Intangible Tax. Notwithstanding
anything in this Lease to the contrary, in the event that at any time this Lease
is determined to be a taxable instrument, or represent a taxable transaction by
the State of Arizona under provisions relating to documentary stamp tax or
intangible tax, then payment of any such tax or taxes shall be the sole
obligation of Lessee.
ARTICLE 2 - LEASE TERM
Section 2.1. Lease Commencement. The effective commencement date of
this Lease ("LEASE COMMENCEMENT DATE") shall be the date of closing of the
construction/permanent loan from Meditrust Mortgage Investments, Inc., a
Delaware corporation, to Lessee for construction of the MOB. Prior to the Lease
Commencement Date, Lessee shall not have any possessory, legal or equitable
right, title or interest in or to the Ground Leased Premises or any of the Land
to be subject to the DEA; however, Lessee (i) may market the MOB to be
constructed upon the Ground Leased Premises to potential physician tenants; and
(ii) shall be bound to Lessor for all of the indemnities described in this
Lease.
Section 2.2. Lease Term. The term of this Lease shall be for a period
of one hundred (100) years, commencing on the Lease Commencement Date. The last
day of the Term of this Lease shall be the day immediately preceding the one
hundredth (100th) anniversary of the Lease Commencement Date (the "EXPIRATION
DATE"), unless sooner terminated as herein provided.
Section 2.3. Rent Commencement. Notwithstanding the provisions of
Section 2.2 herein, rental payments shall commence on the Lease thirty (30)
days after certificates of occupancy for interior improvements have been issued
for fifty percent (50%) of the rentable square footage in the MOB (the "RENT
COMMENCEMENT DATE"). When the Rent Commencement Date is determined, Lessee
agrees, not later than ten (10) days following Lessor's request, to execute and
deliver to Lessor a written declaration, in form satisfactory to Lessor,
confirming the Rent Commencement Date. Lessor shall acknowledge its receipt of
Lessee's declaration by signing a copy of such declaration and returning such
acknowledgement to Lessee.
Section 2.4. Reversion. At the Expiration Date or sooner termination of
this Lease, whether by default, eviction, or otherwise, the MOB, Ground Leased
Premises and all other improvements upon the Ground Leased Premises shall,
without compensation to Lessee or any other party, then become the sole property
of Lessor or Lessor's designee, free and clear of all claims to or against them
by Lessee or any third person, and all liens, security interests, and
encumbrances, other than the encumbrances set forth in Exhibit "C" attached
hereto and made a part hereof and any other encumbrances or liens expressly
agreed to by Lessor (the "PERMITTED ENCUMBRANCES"), and Lessee shall defend and
indemnify Lessor against all liability and loss, including but not limited to
attorneys' fees and costs through litigation and all appeals, arising from
claims, liens, security interests and encumbrances other than the Permitted
Encumbrances and from Lessor's exercise of the rights conferred by this section.
All alterations, improvements, additions and utility installations (whether or
not such utility installation constitutes trade fixtures of Lessee) which may be
made on the Ground Leased Premises, shall be the property of Lessor and shall
remain upon and be surrendered with the Ground Leased Premises at the Expiration
Date or sooner termination of this Lease. Notwithstanding the provisions of this
paragraph, the machinery and equipment of Lessee or any tenant of the MOB, other
than that which is affixed to the Ground Leased Premises so that it cannot be
removed without damage to the Ground Leased Premises, shall remain the property
of Lessee or such tenant, as may be applicable, and may be removed; provided,
however, that
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Lessee removes or causes its removal by the Expiration Date. Without hereby
implying or suggesting any consent by Lessee to a sublease of the whole of the
Ground Leased Premises other than as expressly permitted herein (which consent
is subject to the terms of Article 10 of this Lease), all subleases of all or
any portion of the Ground Leased Premises and all MOB leases of the physician
tenants of the MOB shall contain reversion language pertaining to the MOB in
accordance with the terms of this Section 2.4.
ARTICLE 3 - RENT, TAXES AND UTILITIES
Section 3.1. Base Annual Rent. Lessee agrees to pay Lessor, for the use
and occupancy of the Ground Leased Premises, "BASE ANNUAL RENT" in the amount of
One Hundred and 00/100 Dollars ($100.00), payable in one annual installment in
advance on the Rent Commencement Date and each anniversary of the Rent
Commencement Date the Term; provided, however, that no rent shall accrue or
become due and payable until the Rent Commencement Date pursuant to Section 2.3.
Simultaneously with and in addition to payment of Base Annual Rent, Lessee
agrees to pay any applicable sales tax due on the rent. There shall be no
increases in the Base Annual Rent. The term "RENT," as used herein, shall mean
Base Annual Rent and any additional rent due and payable hereunder.
Section 3.2. Taxes.
Section 3.2.1. Real and Personal Property. From and after the
Rent Commencement Date of this Lease, Lessee shall pay or cause to be paid,
without abatement, deduction, or offset, the following items: All real and
personal property taxes, general and special assessments, and all other charges,
assessments and taxes of every description, levied on or assessed against the
Ground Leased Premises, the MOB and other improvements located on the Ground
Leased Premises; personal property located on or in the Ground Leased Premises,
the MOB or improvements; the leasehold estate, or any subleasehold estate, to
the full extent of installments assessed during the Term. Notwithstanding
anything herein to the contrary, Lessee shall be obligated to pay for all
development and impact fees for the MOB, and all related construction and
development expenses for the MOB, from and after the Effective Date. Lessee
shall make all such payments directly to the appropriate charging or taxing
authority at least fifteen (15) days before delinquency and before any fine,
interest, or penalty shall become due or be imposed by operation of law for
their nonpayment. If, however, the law expressly permits the payment of any or
all of the above items in installments (whether or not interest accrues on the
unpaid balance), Lessee may, at Lessee's election, utilize the permitted
installment method, but shall pay each installment with any interest at least
fifteen (15) days before delinquency and before any fine, interest, or penalty
shall become due or be imposed by operation of law for their nonpayment. All
payments of taxes or assessments or both, including permitted installment
payments, shall be prorated for the initial Lease year and for the year in which
the Lease terminates.
Section 3.2.2. Calculation of Real Estate Taxes. The parties
acknowledge that, as of the Effective Date, there is no separate real estate tax
xxxx for the Ground Leased Premises. Lessor and Lessee agree that Lessee shall
be responsible for the real estate taxes attributable to the Ground Leased
Premises as improved with the MOB. In this regard, Lessee agrees to diligently
obtain all documents necessary to make this determination, at its expense,
including but not limited to a copy of the assessment card on file with the
applicable county, which should reflect the allocation of the real estate
assessment for tax purposes among the MOB, the Land, and all other buildings
upon the Land. During any period following the Rent Commencement Date that the
Ground Leased Premises is not separately assessed, Lessee shall be obligated to
pay the taxes due on its pro rata share, on a square footage basis, of the
assessed value of the Land, together with the taxes due on one hundred percent
(100%) of the assessed value of the MOB.
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Section 3.2.3. Proof of Compliance. Lessee shall furnish to
Lessor, within five (5) days before the date when any tax, assessment, or charge
(for which Lessee is responsible hereunder) would become delinquent, receipts or
other appropriate evidence establishing payment thereof. Lessee shall, at its
expense, retain a tax service to notify Lessor whether the taxes have been paid,
and notice from said tax service shall satisfy this provision.
Section 3.2.4. Contesting Taxes. Lessee shall have the right
to contest or review by legal proceedings, as permitted under applicable law,
any assessed valuation, real estate tax, or assessment; provided that, unless
Lessee has paid such tax or assessment under protest, Lessee shall furnish to
Lessor (i) proof reasonably satisfactory to Lessor that such protest or contest
may be maintained without payment under protest, and (ii) a surety bond or other
security reasonably satisfactory to Lessor securing the payment of such
contested item or items and all interest, penalty and cost in connection
therewith upon the final determination of such contest or review. Lessor shall,
if it determines it is reasonable to do so, and if so requested by Lessee, join
in any proceeding for contest or review of such taxes or assessments, but the
entire cost of such joinder in the proceedings (including all costs, expenses,
and attorneys' fees reasonably sustained by Lessor in connection therewith)
shall be borne by Lessee. Any amount already paid by Lessee and subsequently
recovered as the result of such contest or review shall be for the account of
Lessee.
Section 3.3. Utilities. From and after the Lease Commencement Date,
Lessee shall pay or cause to be paid all charges for water, heat, gas
electricity, cable, trash disposal, sewers and any and all other utilities used
upon the Ground Leased Premises throughout the Term, including without
limitation any connection and servicing fees, permit fees, inspection fees, and
fees to reserve utilities capacity.
Section 3.4. No Security Deposit. No security deposit is required
hereunder.
Section 3.5. Development Fees. Lessor shall not have any liability or
responsibility for development fees, impact fees or other similar fees or
charges pertaining to or arising out of development of the MOB. Lessee shall pay
all such fees or otherwise cause payment by the proper party responsible for
payment. The failure to pay said fees when due will constitute an Event of
Default hereunder.
Section 3.6. Triple Net Rent. All Base Annual Rent payable hereunder
shall be paid as "triple net" rent without deduction or offset. It is the intent
of the parties, except as is otherwise provided in this Lease, that Base Annual
Rent provided to Lessor shall be absolutely net to Lessor, and Lessee shall pay
all costs, charges, insurance premiums, taxes, utilities, expenses and
assessments of every kind and nature incurred for, against, or in connection
with the Ground Leased Premises, including without limitation all assessments,
both regular and special, which may be due to any property association by virtue
of recorded declarations, covenants and restrictions affecting the Ground Leased
Premises, as same may be amended from time to time, from and after the Rent
Commencement Date, except as expressly stated herein. All such costs, charges,
insurance premiums, taxes, utilities, expenses and assessments covering the
Ground Leased Premises shall be approximately prorated upon the Rent
Commencement Date and upon the expiration of this Lease, except for any expenses
such as insurance premiums which are not being assumed by or transferred for the
benefit of Lessor.
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ARTICLE 4 - USE OF PREMISES
Section 4.1. Primary Use. Lessee shall use or cause the use of the
Ground Leased Premises for the operation of the MOB and such related and
incidental uses thereto as permitted hereunder and for no other uses. No
sublessee shall dispense any drugs or medicines to persons other than the
sublessee's own patients. In the practice of medicine at the Premises, a
sublessee shall have the right to perform only such laboratory tests and
diagnostic procedures which are" ancillary and incidental to the care and
treatment of a sublessee's patients, and not for third parties or for an
independent profit motive. Prior to the installation and use of any diagnostic,
laboratory or radiology equipment, a sublessee shall provide Lessor with a list
of such equipment and its intended use; a list of any Hazardous Materials, as
defined in Section 4.3.1 below, that will be used or generated in connection
with such laboratory and/or diagnostic tests; and the sublessee's proposed
procedures for the use, storage and disposal or any such Hazardous Materials,
including (but not limited to) the procedure for silver recovery for any
radiology equipment.
Section 4.2. Termination if Use Becomes Unlawful, Impossible or
Impractical. If it is or becomes unlawful for Lessee, or anyone holding under
Lessee directly or indirectly, to maintain a medical office building on the
Ground Leased Premises, or such use is declared unlawful, then Lessee shall have
the right to terminate this Lease by giving Lessor within sixty (60) days of
such occurrence, thirty (30) days written notice of such termination. In such
event, rent, taxes and all other expenses directly related to the Ground Leased
Premises will be prorated as of the date of termination. Lessee's failure to
timely notify Lessor of such termination shall be deemed a waiver of such
termination, in which event the Lease shall continue, provided that any change
in use of the Ground Leased Premises is approved by Lessor, which approval may
be withheld in its reasonable discretion. Because Lessor is, as of the Effective
Date hereof, fee simple owner of the Land and improvements thereon which are
located adjacent to the Ground Leased Premises, Lessor shall be deemed to be
reasonably exercising its discretion if any such proposed change in use
conflicts with, is detrimental in value to, or restricts in any way Lessor's
use, enjoyment or ownership of the Land and improvements now or hereafter to be
constructed thereon.
Section 4.3. Hazardous Materials. For purposes of this Section 4.6
only, the term "Ground Leased Premises" shall include the adjacent portion of
the Land which will constitute the parking facilities under the DEA as depicted
on the Site Plan.
Section 4.3.1. Definitions. "HAZARDOUS MATERIALS" shall mean
any material, substance or waste that is or has the characteristic of being
hazardous, toxic, ignitable, reactive or corrosive, including, without
limitation, petroleum, PCBs, asbestos, materials known to cause cancer or
reproductive problems and those materials, substances and/or wastes, including
infectious waste, medical waste, and potentially infectious biomedical waste,
which are or later become regulated by any local governmental authority, the
State of Arizona or the United States Government, including, but not limited to,
substances defined as "hazardous substances," "hazardous materials," "toxic
substances" or "hazardous wastes" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.: the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq.; all corresponding and related State of Arizona and local Statutes,
ordinances and regulations, including without limitation any dealing with
underground storage tanks; and in any other environmental law" regulation or
ordinance now existing or hereinafter enacted (collectively, "HAZARDOUS
MATERIALS LAWS").
Section 4.3.2. [Intentionally Omitted]
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TSTLGROU.LE4 Page 6 1/19/96
Section 4.3.3. Use of Premises by Lessee; Remediation of
Contamination Caused by Lessee.
(a) Use. Lessee hereby agrees that Lessee and
Lessee's officers, directors, employees, representatives, agents, contractors,
subcontractors, successors, assigns, lessees, sublessees, concessionaires,
invitees and any other occupants of the Ground Leased Premises (for purpose of
this Section 4.6.3, referred to collectively herein as "Lessee's
Representatives") shall not use, generate, manufacture, refine, produce,
process, store or dispose of, on, under or about the Ground Leased Premises or
transport to or from the Ground Leased Premises in the future for the purpose of
generating, manufacturing, refining, producing, storing, handling, transferring,
processing or transporting Hazardous Materials, except in compliance with all
applicable Hazardous Materials Laws. Furthermore, Lessee shall, at its own
expense, procure, maintain in effect and comply with all conditions of any and
all permits, licenses and other governmental and regulatory approvals required
for the storage or use by Lessee or any of Lessee's Representatives of Hazardous
Materials on the Ground Leased Premises, including without limitation, discharge
of (appropriately treated) materials or wastes into or through any sanitary
sewer serving the Ground Leased Premises. All leases of the MOB entered into by
Lessee will contain use restrictions and limitations conforming to the terms of
this Section 4.6, in form satisfactory to Lessor.
(b) Remediation. If at any time during the Lease Term
any contamination of the Ground Leased Premises by Hazardous Materials shall
occur where such contamination is caused by the act or omission of Lessee or
Lessee's Representatives ("LESSEE CONTAMINATION"), then Lessee, at its sole cost
and expense, shall promptly and diligently remove such Hazardous Materials from
the Ground Leased Premises, or the groundwater underlying the Ground Leased
Premises, to the extent reasonably possible in accordance with the requirements
of the applicable Hazardous Materials Laws and industry standards then
prevailing in the Hazardous Materials management and remediation industry in
Arizona. However, Lessee shall not take any required remedial action in response
to any Lessee Contamination in or about the Ground Leased Premises or enter into
any settlement agreement, consent, decree or other compromise in respect to any
claims relating to any Lessee Contamination without first notifying Lessor of
Lessee's intention to do so and affording Lessor the opportunity to appear,
intervene or otherwise appropriately assert and protect Lessor's interest with
respect thereto. In addition to all other rights and remedies of the Lessor
hereunder, if Lessee does not promptly and diligently take all steps to prepare
and obtain all necessary approvals of a remediation plan for any Lessee
Contamination, and thereafter commence the required remediation of any Hazardous
Materials released or discharged in connection with Lessee Contamination within
thirty (30) days after Lessor has reasonably approved Lessor's remediation plan
and all necessary approvals and consents have been obtained and thereafter
continue to prosecute said remediation to completion in accordance with the
approved remediation plan, then Lessor, at its sole discretion, shall have the
right, but not the obligation, to cause said remediation to be accomplished, and
Lessee shall reimburse Lessor within fifteen (15) business days of Lessor's
demand for reimbursement of all amounts reasonably paid by Lessor (together with
interest on said amounts at the highest lawful rate until paid), when said
demand is accompanied by proof of payment by Lessor of the amounts demanded.
Lessee shall promptly deliver to Lessor copies of hazardous waste manifests
reflecting the legal and proper disposal of all Hazardous Materials removed from
the Ground Leased Premises as part of Lessee's remediation of any Lessee
Contamination.
(c) Disposition of Hazardous Materials. Except as
discharged into the sanitary sewer or otherwise removed from the Ground Leased
Premises in strict accordance and conformity with all applicable Hazardous
Materials Laws, Lessee shall cause any and all Hazardous Materials removed from
the Ground Leased Premises as part of the required remediation of Lessee
Contamination to be removed and transported solely by duly licensed haulers to
duly licensed facilities for final disposal of such materials and wastes.
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Section 4.3.4 Notice of Hazardous Materials Matters. Each
party hereto (for purposes of this Section, "NOTIFYING PARTY") shall immediately
notify the other party (the "NOTICE RECIPIENT") in writing of: (a) any
enforcement, clean-up, removal or other governmental or regulatory action
instituted, contemplated or threatened concerning the Ground Leased Premises
pursuant to any Hazardous Materials Laws; (b) any claim made or threatened by
any person against the Notifying Party or the Ground Leased Premises relating to
damage contribution, cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous Materials on or about the Ground Leased
Premises; and (c) any reports made to any environmental agency arising out of or
in connection with any Hazardous Materials in or removed from the Ground Leased
Premises including any complaints, notices, warnings or asserted violations in
connection therewith, all upon receipt by the Notifying Party of actual
knowledge of any of the foregoing matters. Notifying Party shall also supply to
Notice Recipient as promptly as possible, and in any event within five (5)
business days after Notifying Party first receives or sends the same, with
copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Ground Leased Premises or Lessee's use
thereof.
Section 4.3.5. Indemnification by Lessee. Lessee shall
indemnify, defend (by counsel reasonably acceptable to Lessor), protect, and
hold Lessor, and each of Lessor's partners (if applicable), employees, agents,
attorneys, shareholders, officers, successors and assigns, free and harmless
from and against any and all claims, actions, causes of action, liabilities,
penalties, forfeitures, damages, losses or expenses (including, without
limitation, attorneys' fees and costs through litigation and all appeals)
resulting from death of or injury to any person or damage to any property
whatsoever, arising from or caused in whole or in part, directly or indirectly
by (a) any Lessee Contamination, (b) Lessee's failure to comply with any
Hazardous Materials Laws with respect to the Ground Leased Premises, or (c) a
breach of any covenant, warranty or representation of Lessee under this Section
4.6. Lessee's obligations hereunder shall include, without limitation, and
whether foreseeable or unforeseeable, all costs of any required or necessary
repair, clean-up or detoxification or decontamination of the Premises, and the
preparation and implementation of any closure, remedial action or other required
plans in connection therewith. For purposes of the indemnity provisions hereof,
any acts or omissions of Lessee, or by employees, agents, assignees, lessees,
sublessees, contractors or subcontractors of Lessee or others acting for or on
behalf of Lessee (whether or not they are negligent, intentional, willful or
unlawful) shall be strictly attributable to Lessee. The foregoing
indemnification by Lessee shall not extend to conditions not attributable to
Lessee prior to the commencement of the Lease Term.
Section 4.3.6. [Intentionally Omitted]
Section 4.4. Operation of Hospital. Notwithstanding anything contained
in this Article 4 to the contrary, if for a continuous period of at least eight
(8) months Tempe St. Luke's Hospital is no longer operated as an acute care
hospital facility providing inpatient care and related services on the Land (a
"CHANGE IN USE"), then subject to the force majeure terms of this Lease, which
will permit or provide for a disruption in continuous operations at Tempe St.
Luke's Hospital, the limitations on Lessee's use of the Ground Leased Premises
set forth in Article 4 shall be null and void and Lessee shall have the right to
use the Ground Leased Premises for the operation of a general office building
and related and incidental uses and/or for any other use then permitted under
applicable municipal zoning ordinances and regulations, subject to Lessor's
prior written consent which may be withheld subject to and in accordance with
the consent and approval terms set forth in Section 4.2 above (except with
respect to use of the MOB as a general office building, as to which Lessor's
consent and approval will not be unreasonably withheld). Notwithstanding
anything herein to the contrary, the Change In Use rights herein described shall
not be applicable in the event the discontinuance or interruption in operations
at Tempe St. Luke's Hospital, for whatever term, results from reconstruction of
the whole or any part of the Tempe St. Luke's Hospital premises due to
condemnation or casualty. Upon the occurrence of a Change In Use as described
herein,
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Lessor shall have the option, to be exercised (if at all) by giving written
notice thereof to Lessee within ninety (90) days after the Change In Use occurs,
to purchase the MOB and the rights of Lessee under this Lease at the fair market
value thereof, which shall be established through good faith negotiations
between Lessor and Lessee within a reasonable time after the exercise of the
option.
ARTICLE 5 - [INTENTIONALLY OMITTED]
ARTICLE 6 - ENCUMBRANCE OF LEASEHOLD AND FEE ESTATE
Section 6.1. Lessee's Right to Encumber. Lessee may, at any time,
encumber all or any portion of its interest in this Lease and the leasehold
estate by deed of trust, mortgage or other security instrument upon obtaining
the prior written consent of Lessor, which consent shall not be unreasonably
withheld, and shall be further conditioned upon the agreement of the leasehold
mortgagee to simultaneously deliver default notices to Lessor and Lessee. Each
such mortgage, deed of trust or other security instrument acquired by the holder
of any leasehold mortgage shall be subject and subordinate to all rights and
interests of Lessor herein and shall be a lien only on Lessee's interests in and
to this Lease and the leasehold estate and shall not be a lien on Lessor's fee
interest in the Ground Leased Premises or any portion of the Land or
reversionary interest in the MOB or other improvements. Each leasehold mortgage
shall be subject to the terms and provisions of this Lease; and the holder of
any leasehold mortgage, or anyone claiming by, through or under the same, shall
not, by virtue thereof, acquire any greater rights hereunder than Lessee has
under this Lease. Lessee shall deliver to Lessor copies of all documents
recorded to evidence any and all leasehold mortgages and all notices of default
received by Lessee from the holder of any leasehold mortgage; and as stated
above, the holder of any such leasehold mortgage shall be required, as a
condition to Lessor's consent to the leasehold mortgage, to deliver copies of
default notices to Lessor, simultaneously upon mailing to Lessee. Any reference
in this Lease to a mortgage shall be deemed to include a deed of trust, and any
reference in this Lease to a mortgagee or holder of a mortgage shall be deemed
to include the beneficiary of a deed of trust.
Section 6.2. Lessee's Obligations. Lessee covenants and agrees to pay
the indebtedness secured by any leasehold mortgage entered into in compliance
with the provisions hereof when the same shall become due and payable and to
perform, when such performance is required, all obligations of the mortgagor
thereunder. Lessee further agrees not to suffer or permit any default to occur
and continue under any leasehold mortgage. Lessee shall cause a true, complete
and correct copy of the original of each leasehold mortgage, together with
written notice containing the name and post office address of the holder
thereunder, to be delivered to Lessor. Lessee shall, from time to time, when and
as requested by Lessor, deliver to Lessor a certificate from the holders of the
leasehold mortgages certifying as to the amount of the unpaid principal balance
under the leasehold mortgage held by such person, together with accrued interest
thereon, and as to the existence or absence of defaults thereunder.
Section 6.3. Rights of Leasehold Mortgagee. A leasehold mortgagee
approved hereunder may enforce its rights under its mortgage and acquire title
to the Lessee's leasehold estate in any lawful way, and upon foreclosure of such
leasehold mortgage and issuance of a certificate of title, take possession of
the Ground Leased Premises; subject, however, to the Lease, including, without
limitation, the "Use" provisions hereof, all other terms, provisions and
conditions of the Lease, and any leasehold mortgage that is senior in lien to
the leasehold mortgage in question. During such time as the leasehold mortgagee
or any successor in interest is the owner and holder of the leasehold estate and
Lessee's interest hereunder,
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TSTLGROU.LE4 Page 9 1/19/96
whether by foreclosure or otherwise, such interests acquired hereunder shall be
subject to all of the terms, conditions and provisions of this Lease.
Section 6.4. Notices. The holder of any leasehold mortgage may give
notice to Lessor of the name and address of such holder (such holder of the
leasehold mortgage is sometimes referred to herein as a "RECOGNIZED MORTGAGEE"),
and if such notice is given, Lessor shall give to such Recognized Mortgagee a
copy of each notice of default by Lessee at the same time as and whenever any
such notice of default shall thereafter be given by Lessor to Lessee, addressed
to such Recognized Mortgagee at its address last furnished to Lessor. No such
notice by Lessor to Lessee hereunder shall be deemed to have been duly given
unless and until a copy thereof has been served on such Recognized Mortgagee in
the manner provided in this Lease:
(i) Such Recognized Mortgagee shall (subject to
unavoidable delays) thereupon have a period of an
additional ten (10) days within which to cure or
correct such default (or if such default cannot be
cured or corrected within that time, then such
additional time as may be necessary if such
Recognized Mortgagee has commenced such cure within
such additional ten (10) day period and is diligently
pursuing to completion the remedies or steps
necessary to cure or correct such default, but in no
event more than 60 days without Lessor's prior
written consent. If Lessee defaults with respect to
the performance of its obligations hereunder, such
Recognized Mortgagee shall have the right to remedy
such default or cause the same to be remedied within
the period and otherwise as provided herein. Lessor
will accept performance by any such Recognized
Mortgagee of any covenant, condition or agreement on
Lessee's part to be performed hereunder with the same
force and effect as though performed by Lessee. No
event of default with respect to the performance of
work required to be performed, or asked to be done,
or conditions to be remedied, shall be deemed to
exist, so long as any such Recognized Mortgagee
shall, in good faith, have commenced promptly to cure
such matter and to prosecute the same to completion
with diligence and continuity under the terms hereof.
(ii) The time of the Recognized Mortgagee to cure any
default by Lessee which reasonably requires that said
Recognized Mortgagee be in possession of the Ground
Leased Premises to do so shall be deemed extended to
include the period of time required by said
Recognized Mortgagee to obtain such possession (by
foreclosure or otherwise) with due diligence;
provided, however, that such Recognized Mortgagee
shall have delivered to Lessor its written commitment
to cure outstanding defaults reasonably requiring
possession of the Ground Leased Premises; and further
provided, however, that during such period all other
obligations of Lessee under this Lease, including
payment of rent pursuant to Article 3 and additional
rent pursuant to Section 13.1.7, are being duly
performed.
Section 6.5. Subordination of Fee Estate. Upon written request of
Lessee and subject to the conditions precedent below, Lessor will subordinate
its fee estate in the Ground Leased Premises to the lien of the leasehold
mortgage to be held by Lessee's proposed lender. Any consent to be granted by
Lessor shall be conditioned upon the satisfaction of the following:
(i) Lessee shall deliver to Lessor copies of all
promissory notes and other documents executed in
connection with any and all leasehold mortgages,
which shall expressly provide that Lessor has no
obligation under the promissory note or
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TSTLGROU.LE4 Page 10 1/19/96
other loan documents and that the obligations of
Lessee or the borrower thereunder will not be
enforced against Lessor;
(ii) Lessee shall deliver to Lessor copies of all notices
of default received by Lessee from the holder of any
leasehold mortgage;
(iii) The holder of such leasehold mortgage shall be
required to deliver copies of default notices to
Lessor simultaneously upon mailing of such notices to
Lessee, and shall further be required to give Lessor
notice after expiration of any applicable cure period
if the default remains uncured;
(iv) Lessor must have at least twenty (20) days time to
cure any default from and after the expiration of any
curing period afforded to Lessee under the leasehold
mortgage and related loan documents, and if the
default is non-monetary in nature and curing has
commenced but is not completed within such 20 day
period then the curing period must be extended for at
least one hundred twenty (120) days so long as
Lessor's curing activities are diligently prosecuted
to completion. Further, the leasehold mortgagee must
accept performance by Lessor under the loan
documents, provided that Lessor shall not have any
obligation to perform thereunder;
(v) The holder of any such leasehold mortgage may only
foreclose its mortgage lien in such manner as may be
authorized and permitted by Arizona law, with
self-help remedies permissible only to the extent
permitted by Arizona law;
(vi) Lessee's covenants under Section 6.2 of this Lease
must be true, correct, and enforceable during the
term of such leasehold mortgage, and furthermore,
Lessor must be indemnified and held harmless from all
losses, damages, and expenses, including without
limitation attorneys' fees and costs through
litigation and all appeals, and any bankruptcy
proceedings, incurred by Lessor in connection with
Lessor's performance of any of Lessee's obligations
under the leasehold mortgage and related loan
documents;
(vii) There shall be no amendments to any of the terms of
the leasehold mortgage and related loan documents nor
any future advances or other increases in the
principal amount of the loan (other than accrued
interest and expenses of the leasehold mortgagee as
provided in the loan documents), without the prior
written consent of Lessor, which may be withheld in
Lessor's reasonable discretion;
(viii) Lessor shall not be required to waive any notices in
connection with such leasehold mortgage and related
loan documents; and
(ix) Lessor must review and approve for compliance with
this Lease any commitment letter which requires
subordination of Lessor's fee interest.
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TSTLGROU.LE4 Page 11 1/19/96
ARTICLE 7 - MAINTENANCE
Section 7.1. Maintenance of Ground Leased Premises. Lessee agrees that
it will, at its own cost and expense, maintain or cause to be maintained the
Ground Leased Premises, MOB and any other improvements thereon and appurtenances
thereto and every part thereof, in good order, condition and repair and in
accordance with all applicable laws, rules, ordinances, orders and regulations
of all governmental authorities, and any applicable recorded declaration of
covenants and restrictions. In the event any repairs required to be made under
the provisions of this Lease are not made within thirty (30) days after written
notice from Lessor to do so, then Lessor may, at its option, enter upon said
Ground Leased Premises and repair the same, and the cost and expense of such
repairs, with interest at the maximum rate then allowed by law, shall be due and
paid by Lessee as additional rent to Lessor upon demand.
Section 7.2. Emergency Repairs. Notwithstanding the provisions of
Section 7.1, in the event of an emergency, Lessor, at its option, may without
notice enter on the Ground Leased Premises to effect repairs needed as a result
of the emergency. The cost and expense of such repairs shall be due and paid by
Lessee to Lessor on demand as additional rent due hereunder.
Section 7.3. Approval of Management Company. Lessor shall have the
right to consent to the appointment of the management company selected by Lessee
to operate and maintain the MOB from time to time (which management company may
be an affiliate of Lessee), provided that such approval shall not be
unreasonably withheld or delayed. Lessor has approved management of the MOB by
Paramount Real Estate Services, Inc., an affiliate of Lessee and Dasco. The
contract with the management company shall be terminable if this Lease is
terminated. Prior to closing of the construction loan for the MOB, Lessee shall
provide a copy of the management agreement to Lessor for its approval, such
approval not to be unreasonably withheld or delayed.
ARTICLE 8 - MECHANICS' LIENS
Section 8.1. Prohibition of Liens on Fee or Leasehold Interest. Unless
removed as set forth in Section 8.2, Lessee shall not suffer, create or permit
any mechanic's liens or other liens to be filed against the fee of the Ground
Leased Premises nor against Lessee's leasehold interest in the land, nor any
buildings or improvements on the Ground Leased Premises, by reason of any work,
labor, services or materials supplied or claimed to have been supplied to Lessee
or anyone holding the Ground Leased Premises or any part thereof through or
under Lessee. Lessor's interest as herein described shall not be subject to
liens for improvements made by Lessee or any sublessee. The Memorandum of Lease
shall contain a reference to this provision.
Section 8.2. Removal of Liens by Lessee. If any such mechanic's or
laborer's liens or materialman's lien shall be recorded against the Ground
Leased Premises, or any improvements thereof, within sixty (60) days after
notice of the filing thereof, or fifteen (15) days after Lessee is served with a
complaint to foreclose said lien or Lessor advises Lessee in writing that Lessor
has been served with such a complaint, whichever is earlier, Lessee shall cause
such lien to be removed, or will transfer the lien to bond pursuant to
applicable Arizona law. If Lessee in good faith desires to contest the lien,
Lessee shall be privileged to do so, but in such case Lessee hereby agrees to
indemnify and save Lessor harmless from all liability for damages, including
attorneys' fees and costs, occasioned thereby and shall, in the
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TSTLGROU.LE4 Page 12 1/19/96
event of a judgment of foreclosure upon any mechanic's lien, cause the same to
be discharged and removed prior to the execution of such judgment. Lessor may,
in its sole discretion, require that the lien be transferred to bond as a
condition precedent to Lessee's privilege to contest any lien.
ARTICLE 9 - CONDEMNATION
Section 9.1. Interests of Parties on Condemnation. If the Ground Leased
Premises or any part thereof shall be taken for public purpose by condemnation
as a result of any action or proceeding in eminent domain, or shall be
transferred in lieu of condemnation to any authority entitled to exercise the
power of eminent domain, the interests of Lessor and Lessee in the award or
consideration for such transfer, and the allocation of the award and the other
effect of the taking or transfer upon this Lease, shall be as provided by this
Article 9.
Section 9.2. Total Taking - Termination. If the entire Ground Leased
Premises is taken or so transferred, this Lease and all of the right, title and
interest of Lessee hereunder shall cease on the date title to such land so taken
or transferred vests in the condemning authority.
Section 9.3. Partial Taking - Termination. In the event of the taking
or transfer of only a part of the Ground Leased Premises, leaving the remainder
of the Ground Leased Premises in such location, or in such form, shape or
reduced size as to be not effectively and practicably usable in the good faith
opinion of Lessee for the operation thereon of Lessee's business, taking into
consideration the effect, if any, of such taking on the availability of parking
under the DEA property proximately located to the MOB, and if Lessor agrees with
Lessee's determination, which consent will not be unreasonably withheld, this
Lease and all right, title and interest of Lessee hereunder may be terminated by
Lessee giving, within sixty (60) days of the occurrence of such event, thirty
(30) days' notice to Lessor of Lessee's intention to terminate.
Section 9.4. Partial Taking - Continuation. In the event of such taking
or transfer of only a part of the Ground Leased Premises leaving the remainder
of the premises in such location and in such form, shape or size as to be used
effectively and practicably in the good faith opinion of Lessee for the purpose
of operation thereon of Lessee's business, this Lease shall terminate only as to
the portion of the Ground Leased Premises so taken or transferred as of the date
title to such portion vests in the condemning authority, and shall continue in
full force and effect as to the portion of the Ground Leased Premises not so
taken or transferred.
Section 9.5. Partial Taking - Award. If title and possession of a
portion of the Ground Leased Premises is taken under the power of eminent
domain, and the Lease continues as to the portion remaining, all compensation
and damages ("Compensation") payable to Lessee by reason of any improvements so
taken shall be available to be used, to the extent reasonably needed, by Lessee
in replacing any improvements so taken with improvements of the same type as the
remaining portion of the Ground Leased Premises. All plans and specifications
for such replacement and improvements shall be subject to Lessor's reasonable
prior approval and all such repairs shall be in compliance with all then
existing codes, zoning ordinances, rules and regulations governing the Ground
Leased Premises.
Section 9.6. Allocation of Award. Any compensation awarded or payable
because of the taking of all or any portion of the Ground Leased Premises by
eminent domain shall be awarded in accordance with the values of the respective
interests in the Ground Leased Premises and all improvements thereon immediately
prior to the taking. The value of Lessor's interest in the Ground Leased
Premises and all
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TSTLGROU.LE4 Page 13 1/19/96
improvements thereon immediately prior to a taking shall include the then value
of its interest in the Ground Leased Premises and improvements prior to the
Expiration Date of this Lease, together with the value of its reversionary
interest in the MOB after the Expiration Date. The value of Lessee's interest in
the Ground Leased Premises and improvements immediately prior to a taking shall
include the then value of its interest in the Ground Leased Premises and
improvements for the remainder of the Term of this Lease. Such values shall be
those determined in the proceeding relating to such taking or, if no separate
determination of the values is made in such proceeding, those determined by
agreement between Lessor and Lessee. If such agreement cannot be reached, such
values shall be determined by an appraiser or appraisers appointed in the manner
provided below. The time of taking shall mean 12:01 a.m. of, whichever shall
first occur, the date of title or the date physical possession of the portion of
the Ground Leased Premises on which the improvements are located is taken by the
taking agency or entity. In the event of separate awards, then Lessor and Lessee
may retain such separate awards made to each and any of them. If the appointment
of an appraiser or appraisers is required, Lessor and Lessee will each select an
MAI real estate appraiser licensed in the State of Arizona and having experience
in the appraisal of commercial real estate to conduct an appraisal of the Ground
Leased Premises or applicable portion thereof, taking into account the then use
of the Ground Leased Premises by Lessee, together with the appurtenances to the
Ground Leased Premises such as access, parking, landscaping and its location
proximate to Tempe St. Luke's Hospital, but including such value only as
appurtenances to the Ground Leased Premises, and excluding the value of Lessor's
fee simple interest in the acreage of the Land which is not subject to this
Lease. If the two appraisers shall agree, the agreed value shall be the fair
market value of the Ground Leased Premises or applicable-portion thereof. If the
appraisers do not agree and the difference between the two appraisals does not
exceed ten percent (10%) of the greater appraisal, then the average of the two
(2) fair market values as determined by the two appraisals shall determine the
fair market value of the Ground Leased Premises or applicable portion thereof.
If the difference between the two appraisals is greater than ten percent (10%)
of the greater appraisal, then the two appraisers shall select a third MAI
appraiser licensed in the State of Arizona, and the average of the three
appraisals shall be the fair market value of the Ground Leased Premises or
applicable portion thereof. Each party shall pay the cost of its chosen
appraiser and should a third appraiser be necessary, Lessor and Lessee shall
each pay one-half (1/2) of the costs of the third appraiser.
Section 9.7. Voluntary Conveyance. A voluntary conveyance by Lessor to
a public utility, agency or authority under threat of a taking under the power
of eminent domain in lieu of formal proceedings shall be deemed a taking within
the meaning of this Article 9.
ARTICLE 10 - ASSIGNMENT AND SUBLEASE
Section 10.1 Limitation on Assignment and Subletting. Lessee may not
sell, assign, sublease, convey or transfer Lessee's interest in this Lease and
the leasehold estate created hereby, for purposes of security or otherwise,
other than as expressly permitted in this Lease, without the prior written
consent of Lessor, which Lessor may withhold in its reasonable discretion;
provided, however, that the Ground Leased Premises and the MOB may be leased to
tenants of the MOB under terms of a standard lease, the form of which shall be
subject to Lessor's reasonable approval, and shall include, but not be limited
to, those certain lease provisions stated below. In no event shall the term of
any lease or sublease exceed the Term. In addition, any sublease of the whole of
the Ground Leased Premises, other than as expressly permitted hereunder, will
constitute a transfer requiring Lessor's consent, which may be withheld in its
sole discretion. Any authorized assignment, sublease, conveyance or transfer of
Lessee's interest in this Lease shall be subject to compliance with the
provisions of this Lease, including without limitation, Article 4 above.
Notwithstanding anything to the contrary set forth herein, Lessee shall in no
event be released
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TSTLGROU.LE4 Page 14 1/19/96
from this Lease, and shall remain fully liable for all of the terms, provisions,
covenants, conditions, indemnifications and obligations binding upon Lessee
under this Lease; and in the event of an approved sale or transfer of Lessee's
interest in this Lease, any approved assignee shall be required to assume in
writing the "lessee" obligations under this Lease.
Section 10.2 Leases to Tenants of the MOB. The standard lease to be
utilized between Lessee and tenants of the MOB shall be in the form of Exhibit
"D" hereto. Any modifications thereof shall be subject to Lessor's reasonable
approval.
ARTICLE 11 - INSURANCE AND INDEMNIFICATION
Section 11.1. Comprehensive Liability Insurance. Lessee shall, at its
cost and expense, at all times during the Term, maintain in force, for the joint
benefit of Lessor and Lessee, and any holder of a mortgage on the Ground Leased
Premises, a broad form comprehensive coverage policy of public liability
insurance issued by a carrier satisfactory to Lessor and licensed to do business
the State of Arizona with a Best's Insurance Guide Rating of A+, by the terms of
which Lessor and Lessee, and any holder of a mortgage on the Ground Leased
Premises, are named as insureds and are indemnified against liability for damage
or injury to the property or person (including death) of any Lessee, Its invitee
or any other person entering upon or using the Ground Leased Premises, or any
structure thereon or any part thereof. Such insurance policy or policies shall
be maintained on the minimum basis of $5,000,000 per occurrence with respect to
bodily injury, death, property damage and personal injury, or such lesser amount
as may be permitted from time to time pursuant to applicable mortgage
requirements with respect to the Ground Leased Premises, but in no event less
than $1,000,000. Lessor reserves the right to require reasonable increases in
the limits of coverage from time to time during the Term; and the requested
increase will be deemed reasonable if consistent with commercially reasonable
practices for similar projects in the same geographic area. Such insurance
policy or policies shall be stated to be primary and noncontributing with any
insurance which may be carried by Lessor. A certificate of said insurance,
together with proof of payment of the premium thereof shall be delivered to
Lessor on the Lease Commencement Date, effective from and after the Lease
Commencement Date, and renewal certificates and proof of payment of premium
therefor shall be delivered to Lessor not less than fifteen (15) days prior to
the renewal date of any such insurance policies during the Term. Such insurance
shall be cancelable only after thirty (30) days' prior written notice to Lessor
and Lessee, and any holder of a mortgage on the Ground Leased Premises. In the
event Lessee fails to timely pay any premium when due, Lessor shall be
authorized to do so, and may charge all costs and expenses thereof, including
the premium, to Lessee, to be paid by Lessee as additional rent hereunder.
Section 11.2. Fire and Extended Coverage Property Insurance. Lessee
shall, at its cost and expense and at all times during the Term, maintain in
force, for the joint benefit of Lessor and Lessee, and any holder of a mortgage
on the Ground Leased Premises, a policy of insurance against loss or damage by
fire and lightning, and such other perils as are covered under the broadest form
of the "extended coverage" or "all risk" endorsements available in Arizona,
including, but not limited to, damage by wind storm, hurricane, explosion,
smoke, sprinkler leakage, vandalism, malicious mischief and such other risks as
are normally covered by such endorsements. Lessor shall be named as an
additional insured on such policy of insurance, and the leasehold mortgagee
shall be named as required by its loan documents, and subject to terms of the
loan documents any insurance proceeds shall be applied in the manner as set
forth in this Lease. The insurance shall be carried and maintained to the extent
of full (actual) replacement cost of the improvements, in such amounts as may be
reasonably acceptable to Lessor from time to time during the Term of this Lease;
provided however, that during the period of construction, Lessee shall
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TSTLGROU.LE4 Page 15 1/19/96
provide or cause to be provided in lieu thereof builders' risk or similar type
of insurance to the full replacement costs thereof. Such insurance policy or
policies shall be stated to be primary and noncontributing with any insurance
which may be carried by Lessor. In addition, the deductible for such insurance
shall not exceed $5,000.00. A certificate of said insurance, together with proof
of payment of the premium thereof, shall be delivered to Lessor on the Lease
Commencement Date, to be effective from and after the Lease Commencement Date.
Any renewal certificates and proof of payment of premium therefor shall be
delivered to Lessor not less than fifteen (15) days prior to the renewal date of
any such insurance policies during the Term. Such insurance shall be cancelable
only after thirty (30) days' prior written notice to Lessor, Lessee, and any
holder of a mortgage on the Ground Leased Premises. In the event Lessee fails to
timely pay any premium when due, Lessor shall be authorized to do so, and may
charge all costs and expenses thereof, including the premium, to Lessee, to be
paid by Lessee as additional rent hereunder.
Section 11.3. Waiver of Subrogation. Lessor and Lessee and all parties
claiming under them mutually release and discharge each other from all claims
and liabilities arising from or caused by any casualty or hazard covered or
required hereunder to be covered in whole or in part by the casualty and
liability insurance to be carried on the MOB, the Ground Leased Premises and the
parking areas to be covered by the DEA or in connection with any improvements on
or activities conducted on the Ground Leased Premises, MOB and the parking areas
under the DEA, and waive any right of subrogation which might otherwise exist in
or accrue to any person on account thereof, and evidence such waiver by
endorsement to the required insurance policies, provided that such release shall
not operate in any case where the effect is to invalidate or increase the cost
of such insurance coverage (provided that in the case of increased cost, the
other party shall have the right, within thirty (30) days following written
notice, to pay such increased cost, thereby keeping such release and waiver in
full force and effect).
Section 11.4. Indemnification. Lessee hereby agrees to indemnify,
protect, defend and save Lessor, its agents, officers, shareholders, employees,
and attorneys harmless from and against any and all losses, damages, actions,
fines, penalties, demands, damages, liability and expense, including attorneys'
fees and costs through litigation and all appeals, in connection with the loss
of life, personal injury and damage to property arising from or out of (i) any
occurrence in, upon, at or about the Ground Leased Premises; (ii) the occupancy,
use, construction upon and maintenance of the Ground Leased Premises and the use
of the portion of the Land covered by the DEA by Lessee and its lessees,
sublessees, guests and invitees, and any party acting by, through or under any
of them; (iii) the operation of the business of the Lessee thereon; and (iv) any
act or failure to act, occasioned wholly or in part by Lessee and its agents,
contractors, employees, invitees or any other person. Nothing contained herein
shall be construed to make Lessee liable for any injury or loss caused by the
gross negligence or willful misconduct of Lessor or any agent or employee of
Lessor, Lessor agreeing to indemnify and hold Lessee harmless therefrom.
Further, with respect to the portion of the Land covered by the DEA (but
excluding the Ground Leased Premises for this purpose), Lessee's liability shall
be limited to any injury or loss caused by the negligence, gross negligence or
willful misconduct of Lessee, its agents, contractors, employees, and invitees.
ARTICLE 12 - DAMAGE AND DESTRUCTION
Section 12.1. Lessee's Duty to Restore Premises. At any time during the
Term, and so long as no Event of Default has occurred, if any buildings or
improvements now or hereafter on the Ground Leased Premises are damaged and/or
destroyed in whole or in part by fire, theft, the elements, or any other cause,
this Lease shall continue in full force and effect, and Lessee, at its sole cost
and expense, shall repair and
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TSTLGROU.LE4 Page 16 1/19/96
restore the damaged or destroyed MOB and related improvements according to the
original plan hereof or according to such modified plans as shall be reasonably
approved in writing by Lessor, whether or not there are sufficient insurance
proceeds to cover the repair and restoration expenses. The work of repair and
restoration shall be commenced by Lessee as soon as possible but in no event
later than ninety (90) days after the damage or destruction occurs and shall be
completed with due diligence not longer than six months after the work is
commenced, unless otherwise agreed to in writing by Lessor. In all other
respects, the work of repair and restoration shall be done in accordance with
the requirements for original construction work on the Ground Leased Premises
set forth in Article 5 of this Lease.
Section 12.2. Option to Terminate Lease for Destruction.
Notwithstanding Section 12.1 above, in the event that during the last five (5)
years of the Term the MOB located on the Ground Leased Premises is damaged or
destroyed by fire, theft or any other casualty, so that it cannot be repaired
and restored as required by Section 12.1 of this Lease at a cost not more than
thirty-five percent (35%) of the cost of replacing the MOB, then Lessee shall
each have the option of terminating this Lease on the last calendar day of any
month during the last year of the Lease Term by giving to Lessor at least sixty
(60) days' prior written notice of Lessee's intent to do so; and if Lessee
elects to terminate this Lease, then Lessee shall also be required to remove, at
Lessee's own cost and expense, all debris and remains of the damaged
improvements from the Ground Leased Premises. In the event of such damage or
destruction during the last nine (9) months of the Term, Lessor shall also have
the option of terminating this Lease by giving notice to Lessee in accordance
with the terms of the preceding sentence.
Section 12.3. Application of Insurance Proceeds. Any and all fire or
other insurance proceeds that become payable at any time during the Term because
of damage to or destruction of any buildings or improvements on the Ground
Leased Premises shall, subject to the terms of any mortgage incurred by Lessee
pursuant to Article 6 of this Lease, be paid jointly to Lessee and Lessor, and
applied toward the cost of repairing and restoring the damaged or destroyed
buildings or improvements in the manner required by Section 12.1 of this Lease;
provided, however, that should Lessee or Lessor exercise its option granted by
Section 12.2 of this Lease to terminate this Lease because of damage to or
destruction of buildings or improvements on the Ground Leased Premises, then, in
that event, any and all fire or other insurance proceeds that become payable
because of such damage or destruction:
(a) Shall be applied first toward the reduction of the unpaid
principal balance of the obligation secured and discharging the Ground Leased
Premises from any then outstanding encumbrance or encumbrances incurred by
Lessee pursuant to Article 6 of this Lease; and
(b) Then the balance of the proceeds, if any, shall be
allocated between Lessor and Lessee in accordance with the values of their
respective interests in the Ground Leased Premises and all improvements thereon
immediately prior to the damage or destruction. The value of Lessor's interest
in the Ground Leased Premises and all improvements thereon immediately prior to
the damage or destruction shall include the then value of its interest in the
Ground Leased Premises and improvements prior to the Expiration Date of this
Lease and the value of its reversionary interest in the MOB after the Expiration
Date. The value of Lessee's interest in the Ground Leased Premises and
improvements immediately prior to the damage or destruction shall include the
then value of its interest in the Ground Leased Premises and improvements for
the remainder of the Term. Such values shall be those determined by agreement
between Lessor and Lessee. If such agreement cannot be reached, such values
shall be determined by appraiser or appraisers appointed in the manner provided
in Section 9.6.
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TSTLGROU.LE4 Page 17 1/19/96
ARTICLE 13 - DEFAULTS AND REMEDIES
Section 13.1. Defaults. Each of the following events shall be a default
by Lessee and a breach of this Lease and constitute an "Event of Default":
Section 13.1.1. Abandonment. Abandonment of the Ground Leased
Premises, or the improvements now or hereafter constructed thereon, where such
abandonment continues for a period of sixty (60) days after notice thereof by
Lessor to Lessee.
Section 13.1.2. Attachment or Other Levy. The subjection of
any right or interest of Lessee in the Ground Leased Premises to attachment,
execution or other levy, or to seizure under legal process, if not released
within sixty (60) days.
Section 13.1.3 Appointment of Receiver. The appointment of a
receiver to take possession of the Ground Leased Premises or improvements
thereof, or of Lessee's interest in the leasehold estate or of Lessee's
operations on the Ground Leased Premises, for any reason, including but not
limited to assignment for benefit of creditors or voluntary or involuntary
bankruptcy proceedings, but not including receivership (a) pursuant to
administration of the estate of any deceased or incompetent individual member of
any Lessee, or (b) pursuant to any mortgage permitted by the provision of this
Lease relating to the purchase or construction of improvements, or (c)
instituted by Lessor, the event of default being not the appointment of a
receiver at Lessor's instance, but the event justifying the receivership, if
any.
Section 13.1.4. Insolvency: Bankruptcy. An assignment by
Lessee for the benefit of creditors, or the filing of a voluntary or involuntary
petition by or against Lessee under any law for the purpose of adjudicating
Lessee a bankrupt; or for extending time for payment, adjustment or satisfaction
of Lessee's liabilities; or reorganization, dissolution, or arrangement on
account of, or to prevent bankruptcy or insolvency; unless, in case of such that
are involuntary on Lessee's part, the assignment, proceedings, and all
consequent orders, adjudications, custodies and supervisions are dismissed,
vacated or terminated within sixty (60) days after the assignment, filing or
other initial event.
Section 13.1.5. Default in Mortgage Payment. Any default under
any mortgage encumbering the leasehold estate of this Lease, or under any loan
agreement or promissory note secured by any such mortgage which is not cured by
Lessee within the applicable cure period, if any, or not otherwise waived in
writing by any leasehold mortgagee, but in any event only if the fee estate of
Lessor has been subordinated to the lien of such mortgage.
Section 13.1.6. Transfer of Lessee's Interest. Except as
expressly permitted in this Lease, any transfer, sale, conveyance, assignment,
subletting, hypothecation, encumbrance or pledge of Lessee's interest in the
Ground Leased Premises or MOB, whether voluntary, involuntary or otherwise by
operation of law, in violation of the terms of this Lease; provided, however,
that nothing herein shall limit the transfer of Lessee's interest in the Ground
Leased Premises or MOB to OrNda Healthcorp of Phoenix, Inc., a California
corporation, or its successors and assigns as the owner of Tempe St. Luke's
Hospital ("OHP").
Section 13.1.7. Default in Payment or Performance Under this
Lease. Failure of Lessee to pay any installment of Base Annual Rent, rent,
additional rent, or any impositions or other monetary obligations of any nature
whatsoever required to be paid by Lessee under this Lease when due and payable;
or failure of Lessee to observe or perform any of its other covenants,
conditions or agreements under this Lease; or the breach of any warranties or
representations of Lessee under this Lease. For purposes of this Article 13,
all monetary payments required to be made under this Lease, including, but
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TSTLGROU.LE4 Page 18 1/19/96
not limited to, taxes, insurance premiums, utility payments, and association
assessments, together with all other sums Lessee is obligated to pay under this
Lease (other than rent), shall be deemed additional rent hereunder.
Section 13.1.8. Notice and Right to Cure. If the alleged
default is monetary in nature such as (but not limited to) nonpayment of rent,
taxes or any other sums required to be paid by Lessee to Lessor (excluding
Section 13.1.5), Lessor shall have no obligation to deliver written notice to
Lessee of the default; however, Lessee will have ten (10) days after the date
the payment is due to cure the default. As to any non-monetary defaults, Lessee
shall have ten (10) days after written notice is given by Lessor specifying the
nature of the default to cure the default; provided, however, that if after
exercise of due diligence and its best efforts to cure such non-monetary default
Lessee is unable to do so within the ten (10) day period, then the curing period
shall be extended for such reasonable time as may be approved by Lessor for
curing such default, so long as Lessee continues to diligently prosecute to
completion the curing of the default, which in no event shall exceed sixty (60)
days unless specifically agreed to in writing by Lessor. As used herein,
non-monetary default shall include, without limitation, a breach of any covenant
of Lessee hereunder, Lessee's failure to perform as required hereunder, and a
breach of any warranty, representation or other agreement of Lessee under this
Lease. If the alleged default is nonpayment of monetary obligations under
Section 13.1.5, Lessee shall have fifteen (15) days after the happening of the
default under the note or mortgage to cure the default of Section 13.1.5.
Section 13.2. Remedies. If any default by Lessee shall continue uncured
upon expiration of the applicable curing period, Lessor may exercise any one or
all of the following remedies in addition to all other rights and remedies
provided by law or equity, from time to time, to which Lessor may resort
cumulatively or in the alternative:
Section 13.2.1. Termination. Lessor may, at Lessor's election,
and without notice, terminate this Lease. All Lessee's rights in the Ground
Leased Premises, the MOB and in all improvements shall terminate upon
termination of this Lease. Promptly after any such termination, Lessee shall
surrender and vacate the Ground Leased Premises, the MOB and any other
improvements in broom-clean condition, and Lessor may re-enter and take
possession of the Ground Leased Premises, the MOB and all other improvements.
Termination under this paragraph shall not relieve Lessee from the payment of
any sum then due to Lessor, or from any claim for damages previously accrued, or
then accruing, against Lessee.
Section 13.2.2. Re-entry Without Termination. Lessor may, at
Lessor's election, re-enter the Ground Leased Premises, the MOB and improvements
thereon, and without terminating this Lease, at any time, relet the Ground
Leased Premises and improvements, or any part(s) of them, for the account, and
in the name of Lessee or otherwise, all upon commercially reasonable rates and
terms determined by Lessor, without hereby obligating Lessor to relet the Ground
Leased Premises and the MOB or make an effort to relet either or both of them in
whole or in part, at any time. Any reletting may be for the remainder of the
Term or for any longer or shorter period. Lessor may execute any leases made
under this provision either in Lessor's name or in Lessee's name,, and Lessor
shall be entitled to all rents from the use, operation or occupancy of the
Ground Leased Premises or improvements, or both. Lessor shall have the further
right, at Lessor's option, to make such reasonable and necessary alterations,
repairs, replacements and/or restorations which shall not operate or be
construed to release Lessee from liability hereunder. Lessee shall nevertheless
pay to Lessor on the due dates specified in this Lease the equivalent of all
sums required of Lessee under this Lease, plus Lessor's expenses. No act by or
on behalf of Lessor under this provision shall constitute a termination of this
Ground Lease unless Lessor gives Lessee written notice of termination.
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TSTLGROU.LE4 Page 19 1/19/96
Section 13.2.3. Lessee's Personal Property. Lessor may, at
Lessor's election, use Lessee's personal property and trade fixtures or any of
such property and fixtures without compensation and without liability for use or
damage, or store them for the account and at the cost of Lessee. The election of
one remedy for any one item shall not foreclose an election of any other remedy
for another item, or for the same item at a later time.
Section 13.2.4. Appointment of Receiver. Lessor may, if Lessor
elects to file suit to enforce this Lease and/or protect its rights hereunder,
in addition to the other remedies provided in this Lease and by law, have the
appointment of a receiver of the Ground Leased Premises and the improvements
thereon.
Section 13.2.5. Acceleration. Lessor may accelerate the Base
Annual Rent, the rent and any additional rent due hereunder and Lessee shall
immediately pay Lessor, as damages, the present value of the entire amount of
all of such sums which would become due and payable during the remainder of the
Term. Present value shall be determined utilizing generally accepted standard
present value tables available at the time of such election.
Section 13.3. Remedies Cumulative. Suit or suits for the recovery of
such damages, or any installments thereof, may be brought by Lessor from time to
time at its election, and nothing contained herein shall be deemed to require
Lessor to postpone suit until the date when the term of this Lease would have
expired nor limit or preclude recovery by Lessor against Lessee of any sums or
damages which, in addition to the damages particularly provided above, Lessor
may lawfully be entitled by reason of any default hereunder on the part of
Lessee. All the remedies hereinbefore given to Lessor and all rights and
remedies given to it at law and in equity shall be cumulative and concurrent.
Section 13.4. Lessee's Liability After Default. If Lessee shall default
in the performance of any of its obligations under this Lease, Lessor, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account and at the expense of Lessee, without notice in a case of
emergency, and in any other case only if such default continues after the
expiration of the curing period applicable, if any, under Section 13.1.8 of this
Lease. Any reasonable expenses incurred by Lessor in connection with any such
performance, and all costs, expenses, and disbursements of every kind and nature
whatsoever, including reasonable attorneys' fees including appellate, bankruptcy
and post-judgment proceedings involved in collecting or endeavoring to collect
the rent or any additional rent or any part thereof or enforcing or endeavoring
to enforce any rights against Lessee or Lessee's obligations hereunder, shall be
due and payable upon Lessor's submission of an invoice therefor. All sums
advanced by Lessor on account of Lessee under this section, or pursuant to any
other provision of this Lease, and all rent, if delinquent or not paid by Lessee
and received by Lessor when due hereunder, shall bear interest at the maximum
rate permitted by law, from the due date thereof until paid and the same shall
be and constitute additional rent and be due and payable upon Lessor's demand
therefor.
Section 13.5. Holdover. If Lessee remains in possession of the Ground
Leased Premises or any part thereof after the expiration or sooner termination
of the Term or any extension thereof, Lessee shall become a tenant at sufferance
and shall pay the Lessor a rent per annum equal to twice the Base Annual Rent
paid by Lessee in the last month prior to the expiration or termination of the
Lease, which shall be payable on a per diem basis, not to exceed the amount
permitted to be charged by a lessor under applicable Arizona law.
Notwithstanding that Lessor may allow Lessee to continue in possession after the
expiration or sooner termination of this Lease, neither that nor the provisions
of this section shall constitute a waiver of any of Lessor's rights under this
section or this Lease. Further, notwithstanding the payment of rent by Lessee
and acceptance thereof by Lessor as provided in this section, Lessee shall be in
continuing breach of this Lease at any time or during any period in which Lessee
is a holdover tenant.
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TSTLGROU.LE4 Page 20 1/19/96
Section 13.6. Right of OHP to Assume Lease. Notwithstanding any
provision of this Lease to the contrary, in the event of a default by Lessee
under this Lease, Lessor shall give to OHP a copy of each notice of default by
Lessee at the same time as and whenever any such notice of default shall be
given by Lessor to Lessee, addressed to OHP at its address last furnished to
Lessor. No such notice by Lessor to Lessee hereunder shall be deemed to have
been duly given unless and until a copy thereof has been served on OHP in the
manner provided in this Lease. OHP shall (subject to unavoidable delays)
thereupon have a period of an additional twenty (20) days within which to cure
or correct such default (or if such default cannot be cured or corrected within
that time, then such additional time as may be necessary if OHP has commenced
such cure within such additional twenty (20) day period and is diligently
pursuing to completion the remedies or steps necessary to cure or correct such
default, but in no event more than one hundred twenty (120) days without
Lessor's prior written consent. OHP shall have the right to remedy such default
or cause the same to be remedied within the period and otherwise as provided
herein, and Lessor will accept performance by OHP of any covenant, condition or
agreement on Lessee's part to be performed hereunder with the same force and
effect as though performed by Lessee. No event of default with respect to the
performance of work required to be performed, or asked to be done, or conditions
to be remedied, shall be deemed to exist, so long as OHP shall, in good faith,
have commenced promptly to cure such matter and to prosecute the same to
completion with diligence and continuity under the terms hereof. Upon the
completion of such cure by OHP, OHP may give written notice to Lessee of the
reasonable costs incurred with respect to such cure, and Lessee shall, within
thirty (30) days thereafter, reimburse to OHP the amount of such reasonable
costs unless the default is the result of a default by OHP under that certain
Agreement to Lease of even date herewith between OHP and Lessee (the "AGREEMENT
TO LEASE"). If the default is not the result of a default by OHP under the
Agreement to Lease, and if Lessee fails to pay such reimbursement to OHP, OHP
shall have the right, by giving written notice to Lessee and Lessor, to assume
or cause its affiliate to assume all rights and obligations of Lessee under this
Lease and all subleases of this Lease, provided that OHP or said affiliate has
otherwise complied with all requirements of any leasehold mortgage encumbering
the Ground Leased Premises for assumption of the indebtedness secured by such
leasehold mortgage, and provided further that Lessee shall be held harmless by
OHP from and against any liability accruing under this Lease or any such
sublease after the date of such assumption.
ARTICLE 14 - SURRENDER AND REMOVAL
Section 14.1. Surrender of Possession. Upon the expiration of the Term
or any earlier termination thereof, Lessee shall surrender to Lessor possession
of the Ground Leased Premises and all improvements constructed and installed
thereon. If Lessee is not then in default under any of the covenants and
conditions hereof, Lessee may remove, or cause to be removed, all personal
property and equipment of Lessee, other than permanent fixtures, from the Ground
Leased Premises within thirty (30) days after the date of expiration or
termination of this Lease; thereafter all such personal property and equipment
not removed shall belong to Lessor without the payment of any consideration.
Section 14.2. Lessee's Quitclaim. Upon the expiration of the Term, or
any sooner termination of this Lease, Lessee agrees to execute, acknowledge and
deliver to Lessor a proper instrument in writing, releasing and quitclaiming to
Lessor all right, title and interest of Lessee in and to the Ground Leased
Premises and all improvements.
ARTICLE 15 - [INTENTIONALLY OMITTED]
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TSTLGROU.LE4 Page 21 1/19/96
ARTICLE 16 - GENERAL PROVISIONS
Section 16.1. Conditions and Covenants. All of the provisions of this
Lease shall be deemed as running with the land, and construed to be "conditions"
as well as "covenants" as though the words specifically expressing or imparting
covenants and conditions were used in each separate provision.
Section 16.2. Survival of Indemnities. All representations, warranties
and indemnities of Lessee under this Lease, and all representations, warranties
and indemnities of Lessor under Section 4.3 of this Lease, shall survive the
expiration or sooner termination of this Lease.
Section 16.3. No Waiver of Breach. No failure by either Lessor or
Lessee to insist upon the strict performance by the other of any covenant,
agreement, term or condition of this Lease, or to exercise any right or remedy
consequent upon a breach thereof, shall constitute a waiver of any such breach
or of such covenant, agreement, term or condition. No waiver of any breach shall
affect or alter this Lease, but each and every covenant, condition, agreement
and term of this Lease shall continue in full force and effect with respect to
any other then existing or subsequent breach.
Section 16.4. [Intentionally Omitted]
Section 16.5. Unavoidable Delay - Force Majeure. If either party shall
be delayed or prevented from the performance of any act required by this Lease
by reason of acts of God, strikes, lockouts, labor troubles, inability to
procure materials, restrictive governmental laws, or regulations or other cause,
without fault and beyond the reasonable control of the party obligated
(financial inability excepted), performance of such act shall be excused for the
period of the delay; and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay; provided, however,
nothing in this section shall excuse Lessee from the prompt payment of any
rental or other charge required of Lessee except as may be expressly provided
elsewhere in this Lease.
Section 16.6. Notices. Unless otherwise specifically provided in this
Lease or by law, any and all notices or other communications required or
permitted by this Lease or by law to be served on, given to, or delivered to any
party to this Lease shall be writing and shall be deemed duly served, given,
delivered and received when personally delivered (including confirmed overnight
delivery service to the party to whom it is directed), or in lieu of such
personal delivery, when three (3) business days have elapsed following deposit
thereof in the United States mail, first-class postage prepaid, certified,
return receipt requested, addressed to:
LESSOR: MEDITRUST OF ARIZONA, INC.
c/o Meditrust Mortgage Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: ________________, President
WITH COPIES TO: MEDITRUST OF ARIZONA, INC.
c/o Meditrust Mortgage Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
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TSTLGROU.LE4 Page 22 1/19/96
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxx III, Esq.
LESSEE: TEMPE ST. LUKE'S INVESTORS LIMITED PARTNERSHIP
c/o DASCO Development Corporation
0000 Xxxxxxxxx Xxxxxx Xxx, #000
Xxxxxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxx, President
WITH A COPY TO: TEMPE ST. LUKE'S INVESTORS LIMITED PARTNERSHIP
c/o DASCO Development Corporation
0000 Xxxxxxxxx Xxxxxx Xxx, #000
Xxxxxxxxxx, XX 00000
Attn.: Exec. V.P.- Operations
Either party may change its address for the purpose of this paragraph by giving
written notice of such change to the other party in the manner provided in its
paragraph.
Section 16.7. Gender. The use herein of (1) any gender includes all
others, and (2) the singular number includes the plural and vice-versa, whenever
the context so requires.
Section 16.8. Captions. Captions in this Lease are inserted for
convenience of reference only and do not define, describe or limit the scope or
the intent of this Lease or any of the terms hereof.
Section 16.9. Entire Agreement. This Lease contains the entire
agreement between the parties regarding the subject matter hereof. Any oral or
written representations, agreements, understandings and/or statements shall be
of no force and effect.
Section 16.10. Waiver; Amendment. No modification, waiver, amendment,
discharge or change of this Lease shall be valid unless the same is in writing
and signed by the party against which the enforcement of such modification,
waiver, amendment, discharge or change is or may be sought.
Section 16.11. Attorney's Fees. If either party retains an attorney to
enforce or interpret this Lease, the prevailing party shall be entitled to
recover, in addition to all other items of recovery permitted by law, reasonable
attorneys' fees and costs incurred through litigation, bankruptcy proceedings
and all appeals.
Section 16.12. Time. Time is of the essence of each obligation of each
party hereunder.
Section 16.13. Governing Law. This Lease shall be construed and
enforced in accordance with the laws of the State of Arizona.
Section 16.14. Binding Effect. Subject to any provision of this Lease
that may prohibit or curtail assignment of any rights hereunder, this Lease
shall bind and inure to the benefit of the respective heirs, assigns, personal
representatives, and successors of the parties hereto.
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TSTLGROU.LE4 Page 23 1/19/96
Section 16.15. Execution of Other Instruments. Each party agrees that
it shall, upon the other's request, take any and all steps, and execute,
acknowledge and deliver to the other party and all further instruments necessary
or expedient to effectuate the purpose of this Lease.
Section 16.16. Severability. If any term, provision, covenant or
condition of this Lease is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 16.17. Counterparts. This Lease may be executed in one or more
counterparts, each of which shall be deemed an original and when taken together
will constitute one instrument.
Section 16.18. Estoppel Certificate. Either party shall execute,
acknowledge and deliver to the other party, within twenty (20) days after
requested by the other party, a statement in writing certifying, if such is the
case, that this Lease in unmodified and in full force and effect (or if there
have been modifications that the same is in full force and effect as modified);
the date of commencement of this Lease; the dates for which the rent and other
charges have been paid; any alleged defaults and claims against the other party
and providing such other information as shall be reasonably requested.
Section 16.19. Good Standing. Lessee represents and warrants that it is
in good standing as of the Effective Date of this Lease, and covenants that it
will remain in good standing under the applicable laws of the State of Arizona
at all times during the Term. Lessee's breach of this representation or covenant
shall constitute an Event of Default hereunder.
Section 16.20. Memorandum of Lease. On or before the Effective Date,
Lessor and Lessee shall execute and acknowledge a Memorandum of this Lease for
purpose of recordation. This Memorandum shall be in the form attached hereto as
EXHIBIT "E" and incorporated herein by reference.
Section 16.21. Waiver of Trial by Jury. LESSOR AND LESSEE MUTUALLY,
EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY FOR ANY
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, OR ARISING OUT OF
ANY CONDUCT OR COURSE OF DEALING OF THE PARTIES, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY PERSONS. THIS WAIVER IS A MATERIAL INDUCEMENT TO
LESSOR TO ACCEPT DELIVERY OF THIS LEASE.
IN WITNESS WHEREOF, this Lease has been executed on the respective
dates set forth below.
Signed, sealed and LESSOR:
delivered in the
presence of: MEDITRUST OF ARIZONA, INC., a Delaware corporation
XXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXXXXXX, ESQ.
----------------- -----------------------------
XXX X. XXXXXXXX Name: XXXXXXX X. XXXXXXXX, ESQ.
----------------- ---------------------------
Title: SENIOR VICE PRESIDENT
--------------------------
Date:
---------------------------
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TSTLGROU.LE4 Page 24 1/19/96
LESSEE:
TEMPE ST. LUKE'S INVESTORS LIMITED PARTNERSHIP,
an Arizona limited partnership
By: TEMPE ST. LUKE'S EQUITY CORPORATION, an
Arizona corporation, General Partner
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx, Vice President
--------------------------------
Title:
--------------------------------
Date:
--------------------------------
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TSTLGROU.LE4 Page 25 1/19/96
EXHIBIT "C"
TEMPE
ESCROW AGREEMENT
ESCROW AGREEMENT
THIS
ESCROW AGREEMENT ("AGREEMENT") is entered into this ____ day of
__________, 2005, by and among ____________________, a ________________
("SELLER") and WINDROSE TEMPE PROPERTIES, L.P., a Virginia Limited Partnership
("BUYER"), and _________________________ (the "Escrow Agent").
WHEREAS, Seller and Buyer are parties to that certain Contract
dated as of October 24, 2005 (the "CONTRACT") in the forms attached hereto as
collective Exhibit A; and
WHEREAS, as of the closing of the transactions contemplated
under the Contact with respect to the Property set forth on Exhibit B (the
"Property"), the Required Lender Consent has not been obtained; and
WHEREAS, Buyer and Seller desire to enter into this Agreement
pursuant to Section 7(a) of the Contract as more particularly described herein;
and
WHEREAS, the parties wish to engage Escrow Agent for the
purposes described in this Agreement, and Escrow Agent is agreeable thereto.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
SECTION 1 RECITALS. The foregoing recitals are true and correct and are
incorporated herein by reference. All capitalized terms used herein and not
otherwise defined shall have the same meaning as defined in the Contract.
SECTION 2 CERTAIN DEFINITIONS. Capitalized terms used, but not otherwise defined
in this
Escrow Agreement shall have the meanings ascribed to those terms in the
Contract.
SECTION 3 GENERAL TERMS OF ESCROW. Except as specifically modified by written
instruction executed by all parties and accepted by Escrow Agent, the provisions
of this Agreement shall apply to the property or funds received hereunder.
SECTION 4 APPOINTMENT OF ESCROW AGENT. Buyer and Seller hereby appoint and
designate the Escrow Agent to act as escrow agent under this Agreement. The
Escrow Agent hereby agrees to act as escrow agent hereunder and to comply with
all the provisions of this Agreement.
SECTION 5 CREATION OF DEFEASANCE DEPOSIT. Escrow Agent hereby acknowledges
receipt of the sum of _______________________ Dollars ($________________)
(hereinafter described as the "DEFEASANCE DEPOSIT") paid by wire transfer to
Escrow Agent by Buyer, and as Escrow Agent shall deposit the Defeasance Deposit
in an interest bearing account maintained at ___________ Bank with offices
____________, ___________________ (address) Account No.____________________. The
Defeasance Deposit shall be held by the Escrow Agent on the terms and subject to
the conditions set forth herein and in the Contract, but the Escrow Agent shall
have no responsibility with respect to the Contract other than to perform its
obligations as such are provided in this
Escrow Agreement. The Defeasance
Deposit and all interest accrued thereon, as well as any other property or funds
received by Escrow Agent, shall be paid/disbursed in accordance with the terms
hereof, and the terms of the Contract which are incorporated herein by
reference. Nothing in this Agreement shall be deemed to waive or limit any of
Buyer's or Seller's rights or remedies under the Contract, and Escrow Agent
shall not be deemed to have waived any right or remedy it may have unless said
waiver is in writing signed by Escrow Agent and only to the extent set forth in
such waiver.
SECTION 6 DEPOSIT OF CLOSING DOCUMENTS. Seller and Buyer have deposited with
Escrow Agent the closing documents and deliverables required under the Contract
as listed on EXHIBIT A with respect to the Property.
1
SECTION 7 INVESTMENT OF ESCROWED CASH. The Escrow Agent shall invest and
reinvest all cash held in the Defeasance Deposit as directed by Buyer in: (i)
direct obligations of or obligations fully guaranteed by the United States of
America or any agency or instrumentality thereof which have a maturity date of
30 days or less; and (ii) money market funds investing primarily in the
obligations described in item (i). Temporarily uninvested funds held hereunder
shall not earn or accrue interest. Interest accrued on the Defeasance Deposit
shall be credited to the accounts in which the Defeasance Deposit is deposited,
as and when received by the Escrow Agent, and shall become a part of the
Defeasance Deposit, to be distributed in accordance with SECTION 9 hereof.
SECTION 8 LIMITATIONS OF LIABILITY: Without limitation, Escrow Agent shall not
be liable for any loss or damage resulting from the following: (a) the financial
status or insolvency of any other party, or any misrepresentation made by any
other party; (b) any legal effect, insufficiency, or undesirability of any
instrument deposited with or delivered by or to Escrow Agent or exchanged by the
parties hereunder, whether or not Escrow Agent prepared such instrument; (c) the
default, error, action or omission of any other party to the Agreement; or (d)
any loss, diminution in value or failure to achieve a greater profit as a result
of such Deposit, any loss occurring which arises from the fact that the amount
of deposit may cause the aggregate amount of the depositor's accounts to exceed
$100,000 and that the excess amount is not insured by the Federal Deposit
Insurance Corporation (FDIC); any loss or impairment of funds that have been
deposited in escrow while those funds are in the course of collection or while
those funds are on deposit in a financial institution if such loss or impairment
results from the failure, insolvency or suspension of a financial institution,
or any loss or impairment of funds due to the invalidity of any draft, check,
document or other negotiable instrument delivered to the Escrow Agent.
SECTION 9 PAYMENTS FROM DEFEASANCE DEPOSIT.
9.1 PURPOSE OF ESCROW. The purpose of this Agreement is to: (a) to
provide the required funds for Seller to defease or satisfy the Mortgage and in
the amount listed on EXHIBIT B; (b) upon such defeasance or satisfaction,
provide the payment of the full Purchase Price to Seller for the Property in the
amount set forth on EXHIBIT B subject to adjustments and credits provided for in
the Contract; and (c) upon such defeasance or satisfaction, close the purchase
and sale of the Property in accordance with SECTION 9.
9.2 APPLICATION OF DEFEASANCE DEPOSIT. Seller shall give written notice
to the Lender with a copy to Buyer and Escrow Agent, within five (5) days after
the date of this Agreement or five (5) days after the expiration of Buyer's
Extension, if applicable, that the Mortgage encumbering the Property will be
satisfied or defeased (as applicable). At the expiration of the Lender's notice
period for satisfaction or defeasance of the Mortgage, or earlier if agreed to
by the Lender, the Escrow Agent will disburse to the Lender, from the Defeasance
Deposit, the amounts necessary to defease or otherwise satisfy the Mortgage; it
being understood that a portion of the Defeasance Deposit will be disbursed by
Escrow Agent prior to the Closing to purchase securities required for the
defeasance and Escrow Agent will take all actions reasonably required in
connection therewith. Notwithstanding anything to the contrary contained herein
or in the Contract, if the amount required by Lender, in accordance with the
loan documents applicable to such Mortgage, to defease or satisfy a Mortgage is
greater than the amount set forth on EXHIBIT A for such Mortgage, Escrow Agent
shall provide written notice to Buyer and Seller and Buyer shall within five (5)
business days of such notice deposit such additional funds with Escrow Agent.
9.3 OPERATION OF PROPERTY DURING DEFEASANCE PERIOD. During the
Defeasance Period and prior to Closing, the Property shall be operated by the
Seller in accordance with the terms of the Contract and Seller shall be entitled
to all income and responsible for all expenses attributable to the Property
until the Closing as described herein. During the Defeasance Period, all other
provisions of the Contract shall apply.
9.4 CLOSING. At such time as the Escrow Agent determines that the
Mortgage has been defeased or satisfied so as to satisfy the applicable
requirement in the title insurance commitment to
2
delete applicable Mortgage from the Title Commitment (the "TRIGGER DATE"), the
Escrow Agent shall immediately give written notice thereof to Buyer and Seller
and the Closing shall be scheduled by the Escrow Agent for a date not later than
ten (10) days following the Trigger Date. Buyer and Seller shall thereupon
cooperate to complete all remaining Closing deliveries under the Contract so as
to permit the Closing to occur on or before the Closing Date scheduled by the
Escrow Agent in accordance with the terms of the Agreement. The balance of the
Defeasance Deposit for the Property shall be disbursed by Escrow Agent at
Closing in accordance with the Settlement Statement applicable to such Property,
provided, however that all interest earned on the Defeasance Deposit shall be
paid to Buyer or as directed by Buyer. Nothing in this Agreement, including the
delivery to the Escrow Agent of any documents listed on Schedule "V" of the
Contract, shall be deemed to be a sale, transfer or conveyance of the Property
(within the meaning of any so-called due-on-sale clause in any of the Loan
Documents or otherwise) unless and until the Closing actually occurs and breaks
escrow and the Mortgage is satisfied or defeased, as applicable.
SECTION 10 ESCROW AGENT'S DUTIES AND RESIGNATION.
10.1 RESIGNATION. The Escrow Agent may resign and be discharged from
its duties hereunder at any time by giving notice of such resignation to Buyer
and Seller specifying a date not less than thirty (30) days following the date
of such notice when such resignation shall take effect. Upon such notice, a
successor escrow agent shall be selected by Buyer and Seller, such successor
escrow agent to become the Escrow Agent hereunder upon the resignation date
specified in such notice. If Buyer and Seller are unable to agree upon a
successor escrow agent within ten (10) days after the date of such notice, the
Escrow Agent shall be entitled to appoint its successor. The Escrow Agent shall
continue to serve until its successor accepts appointment as escrow agent and
receives the amounts held in escrow hereunder.
10.2 DUTIES. The Escrow Agent undertakes to perform only such duties as
are specifically set forth herein and may conclusively rely and shall be
protected in acting or refraining from acting on any written notice, instrument
or signature believed by it to be genuine and to have been signed or presented
by the proper party or parties duly authorized to do so. The Escrow Agent shall
have no responsibility for the contents of any writing contemplated hereby and
may reasonably rely without any liability upon the contents thereof.
Notwithstanding anything to the contrary contained in this Escrow Agreement,
where any action is specified to be taken by the Escrow Agent upon delivery by
either Buyer and Seller (or both Buyer and Seller) of a notice, certificate or
instructions to the Escrow Agent, the Escrow Agent shall not be obligated to
take any action until the appropriate party (or parties) has (or have) acted by
delivering the certificate, notice or instructions to the Escrow Agent (none of
which shall be binding upon the Escrow Agent unless in writing) as to the action
to be taken hereunder indicating in writing that a copy of such certificate,
notice or instructions has been delivered to the other party.
10.3 WRITTEN DIRECTIONS TO ESCROW AGENT. Escrow Agent may act in
reliance upon any writing or instrument or signature which it, in good faith,
believes to be genuine; may assume the validity and accuracy of any statements
or assertions contained in such writing or instrument; and may assume that any
person purporting to give any writing, notice, advice or instruction in
connection with the provisions hereof has been duly authorized to do so. Escrow
Agent shall not be liable in any manner for the sufficiency or correctness as to
form, manner of execution, or validity of any written instructions delivered to
it, nor as to the identity, authority or rights of any person executing such
instructions. The duties of Escrow Agent shall be limited to the safekeeping of
the Defeasance Deposit and to disbursements of the Defeasance Deposit in
accordance with the written instructions described above. Escrow Agent
undertakes to perform only such duties as are expressly set forth herein, and no
implied duties or obligations shall be read into this Agreement as against
Escrow Agent.
10.4 DISPUTES: INTERPLEADER ACTION. In the event of a dispute between
Buyer and Seller over the release of the Defeasance Deposit, the Escrow Agent,
in its sole discretion, may (i) deposit the Defeasance Deposit with the registry
of the Circuit Court of the Fifteenth Judicial Circuit in and
3
for Palm Beach County, Florida, and commence an interpleader action to determine
the rights to the Defeasance Deposit, with the non-prevailing party (as between
Buyer and Seller) responsible for the costs of the interpleader action and all
related proceedings, including Escrow Agent's legal fees and costs associated
therewith, or (ii) retain the Defeasance Deposit until such time as direction is
provided in writing and signed by both parties or by a court of competent
jurisdiction.
10.5 HOLD HARMLESS OF ESCROW AGENT. The parties expressly understand
and agree that Escrow Agent shall not be liable for any error in judgment or any
act done or omitted by it in good faith or pursuant to court order, or for any
mistake of fact or law. Escrow Agent shall not incur any liability in acting
upon any document or instrument believed thereby to be genuine. Escrow Agent is
hereby released and exculpated from all liability hereunder, except only for
willful misconduct or gross negligence.
SECTION 11 DISCHARGE OF ESCROW AGENT: Upon completion of the disbursement of the
Defeasance Deposit and delivery of instruments, if any, in accordance with this
Agreement, Escrow Agent shall be automatically released and discharged of its
escrow obligations hereunder.
SECTION 12 AGENTS OF ESCROW AGENT: The provisions of this Agreement shall apply
to and be for the benefit of agents of the Escrow Agent employed by it for
services in connection with this Agreement, as well as for the benefit of Escrow
Agent.
SECTION 13 MISCELLANEOUS.
13.1.1 GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida. Venue for any
dispute or litigation arising from this Agreement shall occur in state court in
and for Palm Beach County, Florida.
13.1.2 BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.
13.1.3 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
13.1.4 HEADINGS. Section headings contained in this Agreement
are for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
13.1.5 NOTICES. Any notice, request, instruction or other
document deemed by any of the parties hereto to be necessary or desirable to be
given to any other party hereto shall be in writing (including telex and
telegraphic communications) hand delivered by messenger courier service,
telecommunicated, or mailed by overnight courier (airmail, if intended recipient
is outside the continental United States), by registered or certified mail
(postage pre-paid), return receipt requested, to the following address:
If to Seller: AZ-Tempe Luke Limited Partnership
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Telecopier No.: 000-000-0000
With a copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No. 561/630-9660
4
If to Buyer: c/o Windrose Medical Properties, L.P.
Attn: Xxxx Xxxxxx, President
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
If to Escrow Agent:
-----------------------------
-----------------------------
-----------------------------
Attention:
------------------
Telecopier No.:
--------------
or to such other address as any party may designate by notice complying
with tie terms of this paragraph. Each such notice shall be deemed delivered or,
in the event of receipted mail, on the date refused.
13.2 AMENDMENT. This Escrow Agreement maybe modified only by a written
amendment signed by Seller, Buyer and Escrow Agent, and no waiver of any
provision hereof shall be effective unless expressed in writing and signed by
the party to be charged.
13.3 REPRESENTATION. Each Party hereby represents and warrants that
this Agreement has been duly authorized, executed and delivered on its behalf
and constitutes the legal, valid and binding obligation of such Party. The
execution, delivery and performance of this Agreement by such Party does not
violate any applicable law or regulation to which such Party is subject and does
not require the consent of any governmental or other regulatory body to which
such Party is subject, except for such consents and approvals as have been
obtained and are in full force and effect.
13.4 ENTIRE AGREEMENT. This Agreement, together the applicable terms of
the Contract, represents the entire agreement between the parties hereto with
respect to the subject matter hereof and may not be modified, terminated or
amended except by an instrument in writing signed by all of the parties hereto.
To the extent the terms of this Agreement conflict with the terms of the
Contract, this Agreement shall take priority.
SIGNATURES CONTAINED ON THE FOLLOWING PAGE
5
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement of the
date first hereinabove written.
SELLER:
AZ-TEMPE LUKE LIMITED PARTNERSHIP,
a Florida limited partnership
By: AZ-TEMPE LUKE, INC., a Florida corporation,
its sole general partner
By:____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BUYER:
WINDROSE TEMPE PROPERTIES, L.P.,
a Delaware limited partnership
BY: Its Managing Member
WMPT TEMPE MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: _______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
ESCROW AGENT:
---------------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
6
EXHIBIT "D"
TEMPE
SELLER'S GUARANTY
GUARANTY
In consideration for, as a condition of, and as an inducement to
Windrose Tempe Properties, L.P., a Delaware limited partnership (the "BUYER")
which is an affiliate of
Windrose Medical Properties Trust, a Maryland REIT,
entering into that certain Purchase and Sale Agreement dated October 24, 2005
(the "AGREEMENT"), with AZ-Tempe Luke Limited Partnership, a Florida limited
partnership (the "SELLER") which is an affiliate of Medical Office Portfolio
Limited Partnership, a Florida limited partnership ("GUARANTOR"), and for other
good and valuable consideration, Guarantor hereby covenants and agrees to and
with Buyer that if (a) default shall at any time be made by Seller under the
Agreement, (b) Seller is liable to Buyer for liquidated damages as provided in
Section 11(a) of the Agreement, and (c) such payment shall not be made as and
when due, then Guarantor will forthwith pay the liquidated damages due and
payable to Buyer; provided, however, that in no event shall the liability of
Guarantor for any and all such liquidated damages under the Agreement exceed the
maximum aggregate amount of One Hundred Thousand Dollars ($100,000.00).
This Guaranty is a guaranty of payment (and not of collection) and is a
surety agreement. Guarantor's liability hereunder is primary and direct and may
be enforced without Buyer being required to resort to any other right, remedy or
security, and this Guaranty shall be enforceable against Guarantor, without the
necessity for any suit or proceedings on Buyer's part of any kind or nature
whatsoever against Seller, and without the necessity of any notice of
non-payment, non-performance or non-observance or the continuance of any such
default or of any notice of acceptance, protest, dishonor or presentment of this
Guaranty or of Buyer's intention to act in reliance hereon or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives.
This Guaranty shall be a continuing Guaranty, and (whether or not
Guarantor shall have notice or knowledge of any of the following) the liability
and obligation of Guarantor hereunder shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way impaired
by (a) any amendment or modification of, or supplement to, or extension or
renewal of, the Agreement; (b) any exercise or non-exercise of any right, power,
remedy or privilege under or in respect of the Agreement or this Guaranty or any
waiver, consent or approval by Buyer with respect to any of the covenants,
terms, conditions or agreements contained in the Agreement; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding relating to Seller, or its properties (including without
limitation any rejection or disaffirmance of the Agreement in any such
proceedings); (d) any limitation on the liability or obligation of Seller under
the Agreement or its estate in bankruptcy or of any remedy for the enforcement
thereof, resulting from the operation of any present or future provision of the
federal bankruptcy law or any other statute or from the decision of any court;
or (e) any transfer by Seller or any assignment, mortgage or pledge of its
interest under the Agreement.
All of Buyer's rights and remedies under the Agreement and under this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others.
Guarantor further agrees that, to the extent that Seller or Guarantor
makes a payment or payments to Buyer, which payment or payments or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to Seller or Guarantor or their
respective estate, trustee, receiver or any other party under any bankruptcy
law, state or federal law, common law or equitable cause, then to the extent of
such payment or repayment, this Guaranty and the
Page 1
damages or part thereof which have been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the date
such initial payment, reduction or satisfaction occurred.
This Guaranty shall be legally binding upon Guarantor and its
successors and assigns and shall inure to the benefit of Buyer and its
successors and assigns. Reference herein to Seller shall be deemed to include
Seller and its successors and assigns.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF LAW.
If any legal action, arbitration, or other proceeding is brought for
the enforcement of this Guaranty, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this Guaranty,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorney's fees, costs and all expenses even if not taxable as costs
(including, without limitation, all such fees, costs and expenses incident to
appeals), incurred in that action or proceeding, in addition to any other relief
to which such party or parties may be entitled.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered; mailed, first
class postage prepaid; or sent by independent overnight courier to the parties
at the following addresses:
If to Buyer: Windrose Tempe Properties, L.P.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, President
Telecopier No.: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
If to Guarantor: Medical Office Portfolio Limited Partnership
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Facsimile No. 561/622-4420
With a copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No. 561/630-9660
or to any such other address as any party hereto shall designate to the other
parties in writing.
Page 2
This Guaranty and the Agreement constitutes the entire agreement, and
supersedes all prior agreements, conduct and understandings, both written and
oral, between Guarantor and Buyer with respect to the subject matter hereof. If
any clause, provision or section of this Guaranty be held illegal or invalid by
any court, the in validity of such clause, provision or section shall not affect
any of the remaining clauses, provisions or sections hereof, and this Guaranty
shall be construed and enforced as if such illegal or invalid clause, provision
or section had not been contained herein. In case any agreement or obligation
contained in this Guaranty be held to be in violation of law, then such
agreement or obligation shall be deemed to be the agreement or obligation of
Guarantor, as the case may be, to the full extent permitted by law.
The provisions of this Guaranty may be waived or amended, as to any
particular transaction or otherwise, only by an instrument in writing executed
by or on behalf of all parties to this Guaranty. No subsequent oral agreements
or understandings, or conduct of any nature, shall be effective to modify any
provision of, or limit the rights or remedies of any party under, this Guaranty,
and no party may rely on any such oral agreements or understandings, or conduct
of any nature.
THE PARTIES HERETO HEREBY MUTUALLY WAIVE ANY RIGHT TO A TRIAL BY JURY
ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION ARISING
OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, ANY DEALINGS OF
THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR IN CONNECTION WITH ANY OF
THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY, OR THE EXERCISE OF ANY
PARTY'S RIGHTS OR REMEDIES HEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. A COPY OF THIS PARAGRAPH MAY BE FILED WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY
WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. NONE OF THE PARTIES HERETO HAVE
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE EVENT OF SUCH
DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISIONS OF THIS PARAGRAPH.
[SIGNATURE ON THE FOLLOWING PAGE]
Page 3
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby,
has caused this Guaranty to be executed by its duly authorized officer as of the
date set forth in the first paragraph hereof.
MEDICAL OFFICE PORTFOLIO LIMITED
PARTNERSHIP, a Florida limited partnership
By: MEDICAL PORTFOLIO INVESTORS
LIMITED PARTNERSHIP, a Florida limited
partnership, General Partner of Medical
Office Portfolio Limited Partnership
By: MEDICAL PORTFOLIO EQUITY CORPORATION, a
Florida corporation, General Partner of
Medical Portfolio Investors Limited
Partnership
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Page 4
EXHIBIT "E"
TEMPE
BUYER'S GUARANTY
GUARANTY
In consideration for, as a condition of, and as an inducement to
AZ-Tempe Luke Limited Partnership (the "SELLER") which is an affiliate of
Medical Office Portfolio Limited Partnership, a Florida limited partnership,
entering into that certain Purchase and Sale Agreement dated October 24, 2005
(the "AGREEMENT"), with Windrose Tempe Properties, L.P., a Delaware limited
partnership (the "BUYER") which is an affiliate of
Windrose Medical Properties
Trust, a Maryland REIT ("GUARANTOR"), and for other good and valuable
consideration, Guarantor hereby covenants and agrees to and with Seller that if
(a) default shall at any time be made by Buyer under the Agreement, (b) Buyer is
liable to Seller for liquidated damages or otherwise as provided in the
Agreement, and (c) such payment shall not be made as and when due, then
Guarantor will forthwith pay said liquidated damages to Seller; provided,
however, that in no event shall the liability of Guarantor for any and all such
liquidated damages under the Agreement exceed the maximum aggregate amount of
Three Hundred Thousand Dollars ($300,000.00).
This Guaranty is a guaranty of payment (and not of collection) and is a
surety agreement. Guarantor's liability hereunder is primary and direct and may
be enforced without Seller being required to resort to any other right, remedy
or security, and this Guaranty shall be enforceable against Guarantor, without
the necessity for any suit or proceedings on Seller's part of any kind or nature
whatsoever against Buyer, and without the necessity of any notice of
non-payment, non-performance or non-observance or the continuance of any such
default or of any notice of acceptance, protest, dishonor or presentment of this
Guaranty or of Seller's intention to act in reliance hereon or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives.
This Guaranty shall be a continuing Guaranty, and (whether or not
Guarantor shall have notice or knowledge of any of the following) the liability
and obligation of Guarantor hereunder shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way impaired
by (a) any amendment or modification of, or supplement to, or extension or
renewal of, the Agreement; (b) any exercise or non-exercise of any right, power,
remedy or privilege under or in respect of the Agreement or this Guaranty or any
waiver, consent or approval by Seller with respect to any of the covenants,
terms, conditions or agreements contained in the Agreement; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding relating to Buyer, or its properties (including without
limitation any rejection or disaffirmance of the Agreement in any such
proceedings); (d) any limitation on the liability or obligation of Buyer under
the Agreement or its estate in bankruptcy or of any remedy for the enforcement
thereof, resulting from the operation of any present or future provision of the
federal bankruptcy law or any other statute or from the decision of any court;
or (e) any permitted transfer by Buyer or any permitted assignment, mortgage or
pledge of its interest under the Agreement.
All of Seller's rights and remedies under the Agreement and under this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others.
Guarantor further agrees that, to the extent that Buyer or Guarantor
makes a payment to Seller, which payment or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to Buyer or Guarantor or their respective estate, trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such payment or repayment,
this Guaranty and the damages or part thereof which have been
Page 1
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the date such initial payment, reduction or
satisfaction occurred.
This Guaranty shall be legally binding upon Guarantor and its
successors and assigns and shall inure to the benefit of Seller and its
successors and assigns. Reference herein to Buyer shall be deemed to include
Buyer and its successors and assigns.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF LAW.
If any legal action, arbitration, or other proceeding is brought for
the enforcement of this Guaranty, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this Guaranty,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorney's fees, costs and all expenses even if not taxable as costs
(including, without limitation, all such fees, costs and expenses incident to
appeals), incurred in that action or proceeding, in addition to any other relief
to which such party or parties may be entitled.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered; mailed, first
class postage prepaid; or sent by independent overnight courier to the parties
at the following addresses:
If to Guarantor: Windrose Medical Properties, L.P.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX
Attn: Xxxx Xxxxxx, President
Telecopier No.: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
General Counsel
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX
Telecopier No.: 000-000-0000
If to Seller: AZ-TEMPE LUKE Limited Partnership
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President
Facsimile No. 561/622-4420
With a copy to: Xxxxxxxx X. Xxxxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No. 561/630-9660
or to any such other address as any party hereto shall designate to the other
parties in writing.
Page 2
This Guaranty and the Agreement constitutes the entire agreement, and
supersedes all prior agreements, conduct and understandings, both written and
oral, between Guarantor and Seller with respect to the subject matter hereof. If
any clause, provision or section of this Guaranty be held illegal or invalid by
any court, the in validity of such clause, provision or section shall not affect
any of the remaining clauses, provisions or sections hereof, and this Guaranty
shall be construed and enforced as if such illegal or invalid clause, provision
or section had not been contained herein. In case any agreement or obligation
contained in this Guaranty be held to be in violation of law, then such
agreement or obligation shall be deemed to be the agreement or obligation of
Guarantor, as the case may be, to the full extent permitted by law.
The provisions of this Guaranty may be waived or amended, as to any
particular transaction or otherwise, only by an instrument in writing executed
by or on behalf of all parties to this Guaranty. No subsequent oral agreements
or understandings, or conduct of any nature, shall be effective to modify any
provision of, or limit the rights or remedies of any party under, this Guaranty,
and no party may rely on any such oral agreements or understandings, or conduct
of any nature.
THE PARTIES HERETO HEREBY MUTUALLY WAIVE ANY RIGHT TO A TRIAL BY JURY
ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION ARISING
OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, ANY DEALINGS OF
THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR IN CONNECTION WITH ANY OF
THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY, OR THE EXERCISE OF ANY
PARTY'S RIGHTS OR REMEDIES HEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. A COPY OF THIS PARAGRAPH MAY BE FILED WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY
WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. NONE OF THE PARTIES HERETO HAVE
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE EVENT OF SUCH
DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISIONS OF THIS PARAGRAPH.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby,
has caused this Guaranty to be executed by its duly authorized officer as of the
date set forth in the first paragraph hereof.
WINDROSE MEDICAL PROPERTIES TRUST, A
MARYLAND REIT
By:
-----------------------------------
Name:
---------------------------------
Title:
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