PURCHASE AGREEMENT 12135: PURCHASE AGREEMENT FOR INVESTOR PURCHASING SPECIALTY HOSPITAL FOR CASH $99.95
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") is made and entered into by and between SPECIALTY HOSPITAL OWNER, L.L.C. , a __________ liability company ("Seller"), and SPECIALTY HOSPITAL PURCHASER, INC., a __________ corporation ("Purchaser"). Seller and Purchaser are sometimes collectively referred to herein as the "Parties".
A. Seller is the owner of the Property (as hereinafter defined) which contains a specialty hospital commonly known as ____________. The Property is described in Exhibit A, attached hereto and incorporated herein by reference.
B. Seller desires to sell the Property to Purchaser, and Purchaser desires to purchase the Property from Seller on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) ("Independent Consideration"), the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
In addition to any other terms defined in the body of this Agreement, as used herein (including any Exhibits attached hereto), the following terms shall have the meanings indicated in this Article I:
"Affidavit" shall have the meaning ascribed to such term in Section 4.3 below.
"Bill of Sale" shall mean a Bill of Sale and Assignment in the form attached as Exhibit B hereto, and sufficient to transfer the Personal Property to Purchaser.
"Business Day(s)" shall mean calendar days other than Saturdays, Sundays and legal holidays.
"Certificate of Non-Foreign Status" shall mean a certificate dated as of the Closing Date, addressed to Purchaser and duly executed by Seller, in the form of Exhibit C attached hereto.
"Closing" shall mean the consummation of the Transaction as provided for herein, to be conducted in escrow by the Title Company, or at such location as the Parties may mutually agree in writing.
"Closing Certificate" shall mean a certificate in the form of Exhibit D wherein Seller shall represent that the representations and warranties of Seller contained in Article V of this Agreement are true and correct without exception as of the Closing Date as if made on and as of the Closing Date.
"Closing Date" shall mean the actual day on which the Transaction is closed with the transfer of title to the Property to Purchaser. The Parties agree that the Closing Date shall be not later than five (5) days following the expiration of the Due Diligence Period, unless extended as specifically provided in this Agreement.
"Closing Statement" shall have the meaning ascribed to such term in Section 7.1 below.
"Deed" shall mean a deed containing special warranties of title by Seller in the form of Exhibit E, executed by Seller, as grantor, in favor of Purchaser (or its permitted assignee) as grantee, conveying the Land and Improvements to Purchaser, subject only to the Permitted Exceptions.
"Due Diligence Materials" shall have the meaning ascribed to such term in Section 4.1 hereof.
"Due Diligence Period" shall mean that period of time beginning on the Effective Date and ending on the 28th calendar day thereafter (and subject to extension as described in Section 4.1 below).
"Earnest Money" shall mean the sum of $___________.
"Effective Date" shall mean the later of the two (2) dates on which this Agreement is signed and all changes initialed by the Parties, as indicated by their signatures below.
"Engineering Documents" shall mean all site plans, soil and substrata studies, architectural drawings, plans and specifications, engineering plans and studies, floor plans, landscape plans, and other plans and studies, if any, that relate to the Property which are currently in the possession of Seller.
"Exception Documents" shall mean true, correct and legible copies of each document listed as an exception to title on the Title Commitment.
"Existing Hospital Lease" shall mean the 100% net lease in place as of the Effective Date between Seller, as landlord, and Hospital Tenant LLC, as tenant, with respect to the Hospital and related Improvements.
"Existing Lease" shall mean the Existing Hospital Lease.
"Fixtures" shall mean all permanently affixed equipment, machinery, fixtures, and other items of real property, including all components thereof, now and hereafter located in, on or used in connection with, and permanently affixed to or incorporated into the Improvements or on the Land, including, without limitation, all furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting, ventilating, refrigerating, incineration, air and water pollution control, waste disposal, air-cooling and air-conditioning systems and apparatus, sprinkler systems and fire and theft protection equipment, and built-in vacuum, cable transmission, oxygen and similar systems, all of which, to the greatest extent permitted by law, are hereby deemed by the parties hereto to constitute real estate, together with all replacements, modifications, alterations and additions thereto. Fixtures shall not include any trade fixtures owned or leased from third parties by Hospital Tenant.
"Hazardous Materials" shall mean any substance, including without limitation, asbestos or any substance containing asbestos and deemed hazardous under any Hazardous Materials Law, the group of organic compounds known as polychlorinated biphenyls, flammable explosives, radioactive materials, infectious wastes, biomedical and medical wastes, chemicals known to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions or related materials and any items included in the definition of hazardous or toxic wastes, materials or substances under any Hazardous Materials Law.
"Hazardous Materials Law" shall mean any local, state or federal law relating to environmental conditions and industrial hygiene, including, without limitation, the Resource Conservation and Recovery Act of 1976 ("RCRA"), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous Materials Transportation Act, the Federal Water Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Safe Drinking Water Act, and all similar federal, state and local environmental statutes, ordinances and the regulations, orders, or decrees now or hereafter promulgated thereunder.
"Hospital" shall mean the approximately _________ square foot space that __________________occupies located on the Land.
"Hospital Tenant" shall mean Hospital Tenant, LLC, a ________ limited liability company.
"Improvements" shall mean the Hospital, together with all other improvements, structures and Fixtures located on the Land, including, without limitation, landscaping, parking lots and structures, roads, drainage facilities and all above ground and underground utility structures, equipment systems and other infrastructure.
"Independent Consideration" has the meaning set forth in the preamble.
"Intangible Property" means all Permits and other intangible property or any interest therein now or on the Closing Date owned or held by Seller in connection with the Land and/or the Improvements, or with the use thereof, including trade names, water rights and reservations, zoning rights, business licenses and warranties (including those relating to construction or fabrication) related to the Land, the Improvements, or any part thereof; provided, however, "Intangible Property" shall not include the general corporate trademarks, service marks, logos or insignia or books and records of Seller, and accounts receivable.
"Land" shall mean the real property described Exhibit A hereto.
"Laws" means all federal, state and local laws, moratoria, initiatives, referenda, ordinances, rules, regulations, standards, orders and other governmental requirements, including, without limitation, those relating to the environment, zoning, land use, planning, health and safety, disabled or handicapped persons.
"New Hospital Master Lease" shall mean the Master Lease Agreement entered into between Purchaser, as landlord, and Hospital Tenant, as tenant, on the Effective Date for the lease of the Hospital and related Improvements from and after the Closing, the performance of which by each party is contingent only upon the occurrence of the Closing.
"Objection Notice" shall have the meaning ascribed to such term in Section 4.2 below.
Agreement to Sell and Purchase
2.1 Agreement to Sell and Purchase. On the Closing Date, Seller shall, in consideration for the Purchase Price and in accordance with the terms of this Agreement, sell and deliver to Purchaser all of Seller’s rights, title and interest in and to the Property, and Purchaser shall purchase the same.
Purchase Price and Earnest Money
3.1 Payment of Purchase Price. The Purchase Price shall be paid by Purchaser at the Closing via wire transfer in United States currency to the Title Company to be held in escrow for the benefit of Seller, subject to any adjustments and pro-rations as described in Article VIII below.
3.2 Earnest Money. Within three (3) Business Days following the Effective Date, Purchaser shall deliver the Earnest Money to the Title Company. The disposition of the Earnest Money shall be governed by the terms of this Agreement.
Items to be Furnished to Purchaser by Seller
4.1 Due Diligence Materials. Seller has, prior to the Effective Date, provided the Property Documents, the Service Contracts, and the Phase I to Purchaser. Within five (5) Business Days after the Effective Date, Seller shall deliver (or cause Hospital Tenant to deliver) to Purchaser for its review the following:
(a) True, correct, complete and legible copies of all Warranties, Permits, and Engineering Documents;
(b) True, correct, complete and legible copies of tax statements or assessments for all personal property taxes assessed against the Personal Property for the current and the two (2) prior calendar years;
(c) A complete, itemized and detailed inventory of the Tangible Personal Property;
(d) True, correct, complete and legible copies of any and all litigation files with respect to any pending litigation and claim files for any claims made or threatened, the outcome of which might have an adverse effect on the Property or the use and operation of the Property;
(e) True, correct, and complete and legible copies of the Subleases and any and all agreements or written understandings with respect to the Property or any portion thereof not already provided;
(f) The Title Commitment, together with the Exception Documents; and
(g) The Survey.
The foregoing, together with the Property Documents and the Phase I, are collectively referred to in this Agreement as the "Due Diligence Materials".
In the event Seller fails to deliver the Due Diligence Materials or any portion thereof to Purchaser within the five (5) Business Day time period set forth above, the Due Diligence Period shall automatically be extended on a day-for-day basis by the number of days which elapse between the expiration of the five (5) Business Day time period and the date upon which Purchaser receives the last of the Due Diligence Materials.
4.2 Due Diligence Review. During the Due Diligence Period, Purchaser shall be entitled to review the Due Diligence Materials, and to examine, inspect and investigate the Property to determine whether it is acceptable to Purchaser. Seller shall grant Purchaser and those acting by, through, or under Purchaser full and complete access to the books and records of Seller with respect to the Property, and, provided the Closing occurs, permit Purchaser to retain copies of such books records. Purchaser and those acting by, through, and under Purchaser, shall be entitled to make all inspections or investigations desired by Purchaser with respect to the Property and shall have complete physical access thereto, provided (1) Purchaser and those acting by, through, and under Purchaser shall schedule any visits to, and inspections of, the Property at least one day in advance with Seller, and (2) such access shall not unreasonably interfere with Hospital Tenant's operations at the Property. If Purchaser shall, for any reason in Purchaser’s sole discretion, disapprove or be dissatisfied with any aspect of such information, or the Property, then Purchaser shall be entitled to terminate this Agreement by delivering a Termination Notice (herein so called) to Seller at or before 5:00 p.m. EST on the last day of the Due Diligence Period. If Purchaser’s written termination is timely made, then the Earnest Money shall be immediately returned to Purchaser and thereafter neither Party shall have any further obligations or liabilities to the other hereunder. If Purchaser fails to timely deliver the Termination Notice, then, except as otherwise provided herein, the Earnest Money shall thereafter be non-refundable, but shall be credited to the Purchase Price at Closing, and Purchaser’s right to terminate this Agreement pursuant to this Section 4.2 shall be of no further force or effect.
4.3 Permitted Exceptions. The term "Permitted Exceptions" shall mean: (A) the matters shown as exceptions in the Title Commitment as of the expiration of the Due Diligence Period and not objected to by Purchaser as described above, or that Purchaser has otherwise agreed to accept; (B) those items shown on the Survey as of the expiration of the Due Diligence Period and not objected to by Purchaser as described above, or that Purchaser has otherwise agreed to accept; (C) Laws existing with respect to the Property; (E) real estate taxes and assessments for the current and future years, which are not yet due and payable with respect to the Property or any portion thereof, and (F) the New Hospital Master Lease. The term "Permitted Exceptions" shall expressly not include any of the so-called "standard exceptions" or "pre-printed" exceptions which are subject to deletion by the Title Company upon receipt of a standard owner’s affidavit, which Seller shall provide at Closing (the "Affidavit"). Without limiting the foregoing, the Affidavit shall be in such a form so as to, among other things, cause the Title Company to omit from the Title Policy all exceptions for unfiled mechanic’s, materialmen’s or similar liens and to provide "gap" coverage insuring the period from the effective date of the Title Commitment through the date and time of recording of the Deed.
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