PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the 18th
day of November, 1997, by and between PARK PLAZA VENTURE, an Illinois joint
venture ("Seller"), and AHP OF TEXAS, INC., a Texas corporation ("Purchaser").
RECITALS
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Seller is the owner of a certain parcel of real estate located in the City
of Houston, County of Harris, State of Texas, which parcel is more particularly
described in Exhibit A attached hereto (the "Land"), and that certain office
building located thereon containing approximately 177,395 rentable square feet
and commonly known as 1213 Hermann Drive, Houston, Texas or the "Park Plaza
Office Building". Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Property (as defined in Section 1 below), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE. Subject to and in accordance with the terms and
conditions set forth in this Agreement, Purchaser shall purchase from Seller and
Seller shall sell to Purchaser the Land, together with: (a) all buildings and
improvements located on the Land (the "Improvements"), (b) Seller's right, title
and interest in and to any and all appurtenant rights, easements, licenses and
privileges presently thereon or relating or appertaining thereto, including any
and all rights of way, land located within public streets, mineral rights and
other appurtenances and hereditaments (collectively, the "Ancillary Rights");
(c) Seller's right, title and interest in and to the leases affecting the
Property or any part thereof to the extent applicable to the period from and
after the Closing (as such term is hereinafter defined) and all reversionary
rights thereunder (the "Leases"); (d) all furniture, furnishings, fixtures,
equipment, maintenance vehicles, tools and other tangible personal property
owned by Seller, located on or within the Real Property (as defined in this
Section 1) and used in connection therewith (the "Tangible Personal Property");
and (e) all right, title and interest of Seller under any and all of the
maintenance, service, leasing, brokerage, advertising and other like contracts
and agreements with respect to the ownership or operation of the Property (the
"Service Contracts"), to the extent applicable to the period from and after the
Closing. The Land, the Improvements and the Ancillary Rights are collectively
referred to in this Agreement as the "Real Property". The Real Property, along
with the items described in clauses (c) through (e) above are collectively
referred to in this Agreement as the "Property". However, the term "Property"
expressly excludes all property owned by tenants or other users or occupants of
the Property (excluding items constituting fixtures under applicable law, but
only to the extent that tenants under Leases do not retain and exercise a right
to remove such items), all rights with respect to any refund of taxes applicable
to any period prior to the Closing Date (as defined in Section 4(A) below), and
all computers and computer-related equipment in the management office of the
Property.
2. PURCHASE PRICE. The purchase price to be paid by Purchaser to Seller
for the Property is Sixteen Million Nine Hundred Thousand and No/100 Dollars
($16,900,000.00) (the "Purchase Price"). The Purchase Price shall be paid as
provided below.
A. Earnest Money. Prior to the date hereof, and in accordance with the
terms of a Letter of Intent and Modification Agreement dated October 15, 1997
(the "Letter Agreement"), Purchaser has delivered to Heritage Title Insurance
Company of Austin, Inc. ("Escrow Agent"), initial earnest money
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(the "Initial Earnest Money") in the sum of Fifty Thousand and No/100 Dollars
($50,000.00). Concurrently with the execution of this Agreement, Purchaser shall
deposit with the Escrow Agent additional earnest money (the "Additional Earnest
Money") in the sum of Three Hundred Thousand and No/100 Dollars ($300,000.00).
The Initial Earnest Money and the Additional Earnest Money, together with any
interest earned thereon net of investment costs, are referred to in this
Agreement as the "Earnest Money". The Earnest Money shall be invested as Seller
and Purchaser so direct; provided that if no such agreement as to investment is
reached, the Earnest Money shall be deposited in an interest-bearing money
market account with a federally insured bank or savings and loan. Any and all
interest earned on the Earnest Money shall be reported to Purchaser's federal
tax identification number unless the Earnest Money is distributed to Seller
prior to Closing in accordance with this Agreement, in which event interest
earned on the Earnest Money shall be reported to Seller's federal tax
identification number. If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Earnest Money shall be delivered by Escrow Agent
to Seller as partial payment of the Purchase Price. If the transaction fails to
close due to a default on the part of Purchaser, the Earnest Money shall be
delivered by Escrow Agent to Seller, such delivery to be without prejudice to
the other rights and remedies of Seller due to such a default as provided in
this Agreement or at law or in equity conferred. If the transaction fails to
close due to a default on the part of Seller, the Earnest Money shall be
delivered by Escrow Agent to Purchaser, and Purchaser shall have the remedy
provided for in Section 7(A) below.
B. Cash at Closing. At least one (1) business day prior to Closing,
Purchaser shall deliver to Escrow Agent, for Escrow Agent to hold in escrow
pending the Closing, and at Closing, Escrow Agent shall disburse to Seller from
escrow, by wire transferred current federal funds, an amount equal to the
Purchase Price, minus the sum of the Earnest Money which Seller receives at
Closing from the Escrow Agent, and plus or minus, as the case may require, the
closing prorations and adjustments to be made pursuant to Section 4(C) below.
3. EVIDENCE OF TITLE.
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A. Title Commitment. Seller has heretofore obtained and caused to be
delivered to Purchaser, and Purchaser acknowledges its receipt of, a commitment
for a TLTA Owner's Title Insurance Policy, effective on October 27, 1997 (the
"Title Commitment"), in the amount of the Purchase Price, issued by the Escrow
Agent, as agent for Chicago Title Insurance Company (in such capacity, the
"Title Insurer"), and containing the Title Insurer's commitment to issue a TLTA
Owner's Title Insurance Policy to Purchaser at Closing which policy shall be
revised as follows (the "Title Policy"): (i) the exception relating to
restrictions against the Real Property shall be deleted or limited to
restrictions which are Permitted Exceptions (as defined in this Section 3(A)
below); (ii) the exception relating to discrepancies, conflicts, shortages in
area or boundary lines, or any encroachments or protrusions, or any overlapping
of improvements shall be deleted (except with respect to shortages in area),
subject to, without limitation, Purchaser fulfilling its obligations under
Sections 3(B) and 4(D) below; (iii) the exception relating to ad valorem taxes
shall except only standby fees, taxes and assessments by any taxing authority
owing for the current year of Closing and subsequent years and subsequent taxes
and assessments by any taxing authority for prior years due to change in the
usage or ownership of the Real Property; (iv) the exception relating to
inspections of the Property shall be deleted, provided that Purchaser signs and
delivers to the Title Insurer, the appropriate waiver forms; (v) the exception
relating to the completion and acceptance by "owner" of all improvements or
repairs to the Real Property, the payment in full of all contractors,
subcontractors, laborers and suppliers and the attachment of mechanics',
laborers', materialmens' or similar liens shall be deleted; (vi) the exception
relating to rights of parties in possession shall be limited to the rights of
tenants in possession under the Leases; and (vii) the conditions to the
effectiveness of the Title Policy contained in Schedule C thereto, shall be
deleted in their entirety. At Closing, the conveyance of the Property to
Purchaser shall be made subject only to those exceptions to title which are
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more fully described on Exhibit B attached hereto (which, together with any
exceptions to title which become Permitted Exceptions pursuant to this Section 3
below, are collectively referred to as the "Permitted Exceptions").
B. Survey. Purchaser has heretofore obtained for itself, and shall
deliver to Seller within two (2) days of the date hereof a copy of, a survey of
the Real Property prepared by a surveyor licensed in the State of Texas in
accordance with the current Texas Surveyors Association Standards and
Specifications for a Category 1A, Condition II survey, and sufficient to modify
the standard title exception for area and boundary to read "Shortages in Area"
(the "Survey"). The Survey shall include a certification substantially in the
form of Exhibit H attached hereto.
C. Review of Title Commitment and Survey. If the Title Commitment or
Survey disclose exceptions to title other than those Permitted Exceptions set
forth on Exhibit B, then Purchaser shall have until 5:00 p.m. (Chicago, Illinois
time) on November 23, 1997 to notify Seller of any such exceptions to title to
which Purchaser objects. If any additional exceptions to title arise between
the date of the Title Commitment, the Survey and the Closing, then Purchaser
shall have five days after its receipt of notice of same within which to notify
Seller of any such exceptions to title to which Purchaser objects. Any such
exceptions to title not objected to by Purchaser as aforesaid shall become
Permitted Exceptions. If Purchaser objects to any such exceptions to title,
Seller shall have until Closing (but in any event at least fifteen days after it
receives notice of Purchaser's objection(s)) to remove such exceptions to title,
which removal may be by waiver or endorsement by the Title Insurer reasonably
acceptable to Purchaser. If Seller fails to remove any such exceptions to title
as aforesaid, Purchaser may, as its sole and exclusive remedy, terminate this
Agreement and obtain a return of the Earnest Money. If Purchaser does not elect
to terminate this Agreement, Purchaser shall consummate the Closing and accept
title to the Property subject to all such exceptions to title, in which event,
all such exceptions to title shall also be deemed Permitted Exceptions.
4. CLOSING.
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A. Closing Date. The payment of the Purchase Price, the transfer of title
to the Property, and the satisfaction of all other terms and conditions of this
Agreement (the "Closing") shall occur at 10:00 a.m. on December 18, 1997, at the
Chicago, Illinois, office of the Title Insurer, or at such other time and place
as Seller and Purchaser shall agree in writing (the date of Closing being
referred to as the "Closing Date"). If the scheduled date for Closing above
provided for falls on a Saturday, Sunday or legal holiday, then the Closing Date
shall be the next business day.
B. Closing Documents and Deliveries. At least one (1) business day prior
to Closing, Seller shall execute and send by overnight courier to Escrow Agent
the documents identified in items (i) through (v) of this paragraph, and shall
send by facsimile transmission to Escrow Agent and Purchaser, an unexecuted copy
of the document identified in item (vi) of this paragraph; and provided that
Escrow Agent has received all of the deposits from Purchaser and Seller required
pursuant to this Section 4(B), at Closing, Escrow Agent shall cause to be
completed all of the following: (i) cause to be recorded in the official
records of Harris County, Texas applicable to real property and to ownership
thereof (the "Official Records") a "Special Warranty" Deed conveying title to
the Real Property, subject solely to the Permitted Exceptions, and in the form
attached hereto as Exhibit I; (ii) deliver to Purchaser a "special" warranty
bill of sale sufficient to transfer to Purchaser title to the Tangible Personal
Property and expressly disclaiming any warranties of title other than as to
matters created by or through Seller and not otherwise; (iii) deliver to
Purchaser, copies of letters advising tenants under the Leases of the change in
ownership of the Property in the form attached hereto as Exhibit C (the original
letters shall be sent to each tenant by Seller upon Closing); and deliver to
Purchaser, copies of similar letters advising providers of services under the
Service
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Contracts in the form attached hereto as Exhibit D (the original letters shall
be sent to each vendor by Seller upon Closing); (iv) cause to be recorded in the
Official Records, the Assignment and Assumption of Leases, Service Contracts and
Security Deposits, in the form attached hereto as Exhibit E; (v) an affidavit
stating, under penalty of perjury, Seller's U.S. taxpayer identification number
and that Seller is not a foreign person within the meaning of Section 1445 of
the Internal Revenue Code; and (vi) draft copy of the closing statement setting
forth the prorations and adjustments to the Purchase Price as required by
Section 4(C) below (the "Closing Statement") (a signed counterpart of the final
Closing Statement shall be sent by facsimile transmission to Escrow Agent from
Seller on the Closing Date with original counterparts to follow by overnight
courier for disbursement to Purchaser).
At least one (1) business day prior to Closing, Purchaser shall execute and
send by overnight courier to Escrow Agent the following documents and
deliveries: (i) counterparts of the Assignment and Assumption of Leases, Service
Contracts and Security Deposits, in the form attached hereto as Exhibit E (to be
recorded at Closing as aforesaid); and (ii) counterparts of the Closing
Statement for attachment to the final Closing Statement by Escrow Agent upon
Closing. At least one (1) business day prior to Closing, Purchaser shall wire
transfer the funds described in Section 2(B) above.
C. Closing Prorations and Adjustments. Each of the following provisions
shall survive the Closing:
(i) The following items are to be prorated or adjusted (as
appropriate) as of the close of business on the Closing Date, it being
understood that for purposes of prorations and adjustments, Seller shall be
deemed the owner of the Property on such day and Purchaser shall be deemed the
owner of the Property as of the day after the Closing Date:
(a) real estate and personal property taxes and assessments
(on the basis of the most recent ascertainable tax bill if the current bill is
not then available);
(b) the "minimum" or "base" rent payable by tenants under the
Leases; provided, however, that rent and all other sums which are due and
payable to Seller by any tenant but uncollected as of the Closing shall not be
adjusted or prorated, but Purchaser shall cause the rent and other sums for the
period prior to Closing to be remitted to Seller if, as and when collected. At
Closing, Seller shall deliver to Purchaser a schedule of all such past due but
uncollected rent and other sums owed by tenants. Purchaser shall include the
amount of such rent and other sums in the first bills thereafter submitted to
the tenants in question after the Closing, and shall continue to do so for
twelve (12) months thereafter. During such twelve (12) month period, Purchaser
shall promptly deliver to Seller a copy of each such bill submitted to tenants.
Purchaser shall promptly remit to Seller any such rent or other sums paid by
scheduled tenants, but only if a deficiency in the then current rent is not
thereby created. To the extent not set forth on said schedule, reimbursement of
real estate taxes payable, common area maintenance, utility charges, water and
sewer charges, insurance and association dues and assessments and all other
charges to or contributions by tenants under the Leases shall be prorated in the
same manner as provided for "minimum" or "base" rent;
(c) with respect to tenant improvement costs or leasing
commissions relating to Leases, or any modification, amendment, restatement or
renewal thereto, executed on or after October 16, 1997 (referred to as a "New
Lease"), Seller and Purchaser agree that such costs and commissions shall be
prorated over the term of any New Lease with Seller being responsible for a
portion of such costs and commissions based on the ratio of base rent payments
received by Seller through the Closing Date to the total base rent payable over
the term of the particular New Lease;
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(d) the amount of security deposits paid under the Leases and
unapplied at Closing shall be a credit to Purchaser;
(e) water, electric, telephone and all other utility and fuel
charges, fuel on hand (at cost plus sales tax), and any deposits with utility
companies (to the extent possible, utility prorations will be handled by meter
readings on the day immediately preceding the Closing Date);
(f) amounts paid or payable under the Service Contracts;
(g) assignable license and permit fees; and
(h) other similar items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all events be
entitled to retain amounts paid by tenants (referred to herein as "Tenant
Reimbursements") for real estate taxes and assessments, and common area and
operating expenses (collectively, "Tenant Reimbursable Expenses") as of the
Closing to the extent not in excess of the actual amount of such Tenant
Reimbursable Expenses paid by Seller for the period prior to the Closing Date.
Seller shall be responsible for the reconciliation with tenants of Tenant
Reimbursements and Tenant Reimbursable Expenses for the calendar year 1997.
Purchaser agrees to cooperate with Seller in providing any information required
to complete such reconciliation.
(a) if and to the extent that the amount of Tenant
Reimbursements collected by Seller for 1997 is less than the amount of Tenant
Reimbursable Expenses paid by Seller with respect to 1997 and for which Seller
is entitled to recover under the terms of the Leases, Purchaser shall: (1) to
the extent such amounts have already been collected by Purchaser from the
tenants with respect to any period prior to Closing, promptly remit such amounts
to Seller but only if the applicable tenant is otherwise current in the payment
of all obligations due for the period following Closing; and (2) to the extent
such amounts have not yet been collected from tenants, Purchaser shall promptly
bill the tenants for such amounts and continue to bill such tenants for such
amounts each month for six (6) months thereafter, and, promptly upon receipt
thereof, pay such amounts to Seller; and
(b) if and to the extent that the amount of Tenant
Reimbursements collected by Seller for 1997 exceeds the amount of Tenant
Reimbursable Expenses paid by Seller with respect to 1997 and for which Seller
is entitled to recover under the terms of the Leases, Seller shall remit such
excess amounts to Purchaser, provided, that: (1) Purchaser shall be thereafter
obligated to promptly remit the applicable portion to the particular tenants, if
any, entitled thereto; and (2) Purchaser shall indemnify, defend and hold
Seller, its beneficiaries, their partners, and their respective directors,
officers, employees and agents, and each of them, harmless from and against any
losses, claims, damages and liabilities, including, without limitation,
reasonable attorneys' fees and expenses incurred in connection therewith,
arising out of or resulting from Purchaser's failure to remit any such amounts
to tenants in accordance with the provisions hereof.
(iii) For purposes of this Section 4(C), the amount of any expense
credited by one party to the other shall be deemed an expense paid by that
party.
D. Transaction Costs. Purchaser shall pay for the cost of the Survey,
the premiums for the Title Policy and all endorsements or revisions thereto, to
the extent such premiums exceed the premium payable for the "base policy".
Seller shall pay for the premium for the base coverage under the Title Policy
and for any documentary stamps. Seller and Purchaser shall each pay one-half
(1/2) of all
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escrow fees, whether or not the Closing occurs. Seller and Purchaser shall,
however, be responsible for the fees of their respective attorneys.
E. Possession. Upon Closing, Seller shall deliver to Purchaser possession
of the Property, subject to such matters as are permitted by or pursuant to this
Agreement.
5. CASUALTY LOSS AND CONDEMNATION. If, prior to Closing, the Property or
any part thereof shall be condemned or destroyed or damaged by fire or other
casualty, or the condition of the Property otherwise materially and adversely
changes, Seller shall promptly so notify Purchaser. The following events shall
hereinafter be referred to as a "Material Loss": (i) any condemnation, casualty
or other material adverse change in the condition of the Property which is
insured under Seller's existing insurance coverage ("Seller's Coverage"),
provided that the reasonable estimated cost to repair or restore such
condemnation, casualty or other material adverse change exceeds Two Hundred
Fifty Thousand Dollars ($250,000); (ii) a material adverse change in the
condition of the Property which is not insured under the Seller's Coverage,
provided that the reasonable estimated cost to repair or restore such material
adverse change exceeds One Hundred Twenty-Five Thousand Dollars ($125,000); and
(iii) any casualty or other material adverse change in the condition of the
Property which would require more than ninety (90) days to restore and repair.
In the event of a Material Loss, Purchaser shall have the option to terminate
this Agreement by giving notice to Seller within fifteen days of Seller's
request that the option be exercised, and the Closing Date shall be extended, if
necessary, to provide Purchaser with such fifteen day period to make its
election pursuant to this Section 5. Notwithstanding clause (iii) above in this
Section 5, a Material Loss shall not have occurred solely because any such
restoration or repair cannot be completed within such ninety (90) day period due
to shortages of supply or labor, strikes, weather conditions, acts of God or
generally due to reasons outside of the direct control of Seller, financial
ability excepted. If the condemnation, destruction, damage or other material
adverse change in the condition of the Property does not result in a Material
Loss, or if Purchaser fails to terminate this Agreement following a Material
Loss as provided herein, then Seller and Purchaser shall consummate the
transaction contemplated by this Agreement notwithstanding such condemnation,
destruction, damage or material adverse change in condition. If the transaction
contemplated by this Agreement is consummated, Purchaser shall be entitled to
receive the condemnation proceeds or settle the loss under all policies of
insurance applicable to the destruction or damage and receive the proceeds of
insurance applicable thereto, if any, and Seller shall, at Closing, allow
Purchaser a credit against the Purchase Price in an amount equal to any
deductibles on applicable policies and shall also execute and deliver to
Purchaser all customary proofs of loss, assignments of claims and other similar
items. In such event, Seller shall cooperate with and assist Purchaser, at no
cost or liability to Seller, with Purchaser's efforts to obtain the proceeds of
insurance and/or condemnation awards applicable to the Property. If Purchaser
elects to terminate this Agreement, the Earnest Money shall be returned to
Purchaser by the Escrow Agent, in which event this Agreement shall, without
further action of the parties, terminate and become null and void and neither
party shall have any further rights or obligations under this Agreement, except
those which expressly survive termination of this Agreement.
6. BROKERAGE. Seller agrees to pay upon Closing, but not otherwise, a
brokerage commission due to Cushman & Wakefield of Texas, Inc., for services
rendered in connection with the sale and purchase of the Property. Seller and
Purchaser acknowledge and agree that Cushman & Wakefield of Texas, Inc. is
obligated to pay a portion of its commission to LaSalle Partners Management
Limited. Seller and Purchaser shall each indemnify and hold the other harmless
from and against any and all claims of all brokers and finders (other than
Cushman & Wakefield of Texas, Inc. and LaSalle Partners Management Limited)
claiming by, through or under the indemnifying party and in any way related to
the sale and purchase of the Property, this Agreement or otherwise, including,
without limitation, attorneys' fees and expenses incurred by the indemnified
party in connection with such claim. The foregoing provisions shall survive the
Closing or any termination of this Agreement.
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7. DEFAULT AND REMEDIES.
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A. Seller Default. Notwithstanding anything to the contrary contained in
this Agreement, if Seller fails to perform in accordance with the terms of this
Agreement, then, as Purchaser's sole and exclusive remedy hereunder and at
Purchaser's option, either: (i) the Earnest Money shall be returned to
Purchaser, in which event this Agreement shall terminate and become null and
void, and neither party shall have any rights or obligations under this
Agreement, except for those provisions that expressly survive termination of
this Agreement; or (ii) upon notice to Seller not less than ten (10) days after
Purchaser becomes aware of such failure, and provided an action is filed within
thirty (30) days thereafter, Purchaser may seek specific performance of this
Agreement, but not damages. Purchaser's failure to seek specific performance as
aforesaid shall constitute its election to proceed under clause (i) above.
B. Purchaser Default. If Purchaser fails to perform in accordance with
the terms of this Agreement, the Earnest Money may be retained by Seller as
liquidated damages and as Seller's sole and exclusive remedy, and this Agreement
shall automatically terminate, except for those provisions of this Agreement
that expressly survive the termination hereof. If Purchaser does not deposit
with the Escrow Agent the Additional Earnest Money as provided for in Section
2(A) above, the sum of $350,000.00 shall nonetheless be recoverable by Seller
from Purchaser as Earnest Money and without prejudice to Seller's other rights
and remedies. Purchaser and Seller acknowledge and agree that the Earnest Money
is a reasonable estimate of and bears a reasonable relationship to the damages
that would be suffered and costs incurred by Seller as a result of having
withdrawn the Property from sale and the failure of Closing to occur due to a
default of Purchaser under this Agreement; that the actual damages suffered and
costs incurred by Seller as a result of such withdrawal and failure to close due
to a default of Purchaser under this Agreement would be extremely difficult and
impractical to determine; that Purchaser seeks to limit its liability under this
Agreement to the amount of the Earnest Money in the event this Agreement is
terminated and the transaction contemplated by this Agreement does not close due
to a default of Purchaser under this Agreement; and that the Earnest Money shall
be and constitute valid liquidated damages.
C. Post-Closing Remedies. After Closing, Seller and Purchaser shall,
subject to the terms and conditions of this Agreement, have such rights and
remedies as are available at law or in equity, except that neither Seller nor
Purchaser shall be entitled to recover from the other consequential or special
damages. This provision shall survive the Closing.
8. CONDITIONS PRECEDENT.
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A. Review Period. Subject to Sections 10(G) and 10(J) below and the
provisions of the Letter Agreement, Purchaser acknowledges that prior to the
date hereof, it has had an opportunity to inspect the Property, review all
"Disclosures" (as hereinafter defined) provided by Seller, review copies of the
Leases, the most recent real estate tax statements with respect to the Property,
the most recent sewer and water bills with respect to the Property, the Service
Contracts, bills for electricity and for fuel used to operate the heating and
air conditioning systems controlled by Seller at the Property covering the
previous twelve months, correspondence between tenants and Seller (as landlord),
(except for any of such items that contain privileged information), billings to
tenants for Tenant Reimbursables and invoices for Tenant Reimbursable Expenses,
any plans for the buildings or other Improvements located, or proposed to be
located, on the Property, and any licenses or permits issued to Seller in
connection with the ownership and operation of the Property, and make such other
inquiries and investigations and obtain such reports and analyses it deemed
adequate in connection with its decision to purchase the Property,
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and, as a result thereof, Purchaser agrees that, except as specifically set
forth in this Agreement, it shall purchase the Property in its "AS IS, WHERE IS"
condition.
B. Estoppel Certificates. As a condition to Purchaser's obligation to
close hereunder, Purchaser shall have received estoppel certificates ("Estoppel
Certificates"), dated no more than thirty (30) days prior to Closing, from
tenants occupying not less than seventy-five percent (75%) of the rentable space
actually leased as of the date of Closing pursuant to valid and existing Leases
and in the form and content as set forth herein (the aforesaid acceptable
Estoppel Certificates to be delivered are collectively referred to as the
"Required Estoppel Certificates"). The Estoppel Certificates shall be in the
form of Exhibit F attached hereto (the "Form Tenant Estoppel Certificate"). The
Estoppel Certificates executed by tenants shall be in substantially the form of
(i) the estoppel certificate required to be given by any such tenant pursuant to
its Lease, or (ii) the Form Tenant Estoppel Certificate, except that an Estoppel
Certificate executed by a tenant shall be deemed an acceptable Estoppel
Certificate for purposes of this Section 8(B) as long as it contains the
information set forth in items 1 through 9, 11 and 13 on the Form Tenant
Estoppel Certificate, and that an Estoppel Certificate shall be deemed an
acceptable Estoppel Certificate for purposes of this Section 8(B) if it contains
the qualification by the tenant of any statement as being to the best of its
knowledge or as being subject to any similar qualification.
Seller shall endeavor to obtain Estoppel Certificates from all tenants
leasing space in the Improvements prior to Closing. If Seller is unable to
provide to Purchaser the Required Estoppel Certificates on or before Closing,
then Purchaser may elect, by written notice to Seller given on the Closing Date,
either: (i) not to purchase the Property, in which event the Earnest Money shall
be returned to Purchaser, at which time this Agreement shall terminate and
become null and void and neither party shall have any further rights or
obligations under this Agreement, except those which expressly survive
termination of this Agreement; or (ii) elect to purchase the Property
notwithstanding Seller's inability to provide the Required Estoppel
Certificates, in which event Purchaser shall be deemed to have waived the
condition contained in this Section 8(B). If Purchaser fails to deliver such
written notice as described above, Purchaser shall be deemed to have elected
item (ii) above.
C. Accuracy of Seller's Representations and Warranties. As a condition to
the obligations of Purchaser to close hereunder, Seller shall have fully
performed its material obligations under this Agreement and each of Seller's
representations and warranties set forth in Section 9 below shall be true and
correct as of the Closing, as modified by any Pre-Closing Disclosures (as
defined in Section 9(B) below). Notwithstanding the foregoing, if Seller makes
any Pre-Closing Disclosure to Purchaser, Purchaser shall have the right to
terminate this Agreement and receive the return of the Earnest Money by
delivering written notice thereof to Seller on or before the earlier of the
Closing, or the fifth business day after Purchaser receives written notice of
such Pre-Closing Disclosure. If Purchaser does not terminate this Agreement
pursuant to its rights under this Section 8(C), then such representations and
warranties shall be deemed modified to conform them to the Pre-Closing
Disclosure.
D. Title. As a condition to the obligations of Purchaser to close
hereunder, concurrently with the Closing, the Title Insurer shall issue the
Title Policy or commit to issue the Title Policy in the form of a "marked-up"
Title Commitment.
E. Conditions Precedent to Seller's Obligations. The obligation of Seller
to consummate the transaction hereunder shall be subject to the fulfillment on
or before the Closing Date of all of the following conditions, any or all of
which may be waived by Seller in its sole discretion:
(i) Escrow Agent shall have received the Purchase Price as adjusted
pursuant to and payable in the manner provided for in this Agreement.
8
(ii) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Purchaser as of the Closing Date.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS.
-----------------------------------------
A. Seller's Representations and Warranties. Subject to Section 9(C)
below, Seller represents and warrants to Purchaser that, as of the date of this
Agreement:
(i) Seller holds good and indefeasible fee simple title to the
Real Property (free and clear of all exceptions to title other than the
Permitted Exceptions).
(ii) Seller is a joint venture, duly organized and in good
standing under the laws of the State of Illinois. Seller has the power and
authority under Seller's joint venture agreement ("Seller's Organizational
Documents"), to sell, transfer, convey and deliver the Property to be sold and
purchased hereunder, and all action and approvals required thereunder have been
duly taken and obtained.
(iii) The execution and delivery of this Agreement, the
consummation of the transactions provided for herein and the fulfillment of the
terms hereof have been duly authorized by all required actions and will not
result in a breach of any of the terms or provisions of, or constitute a default
under, any provision of Seller's Organizational Documents. This Agreement is
binding upon Seller and enforceable against Seller in accordance with its terms
subject to the effect of the federal and state bankruptcy laws, insolvency,
reorganization, receivership, moratorium, and other similar laws, and principles
of equity and the doctrine of commercial reasonableness.
(iv) Seller has not received from any governmental authority
any written notice of (a) any condemnation of the Property or any part thereof,
or (b) except as set forth on Exhibit J attached hereto, any material violation
of any, state or federal law, rule or regulation concerning the Property or any
part thereof which has not been cured prior to the date of this Agreement;
provided, however, that Seller makes no representation or warranty with respect
to (1) the information or matters disclosed in the items set forth in Exhibit K
attached hereto, and (2) the Property's compliance with the Americans with
Disabilities Act, as the same applies to any individual leased premises in the
Building.
(v) Except as set forth on Exhibit G attached hereto, Seller
has not been served with any material litigation which is still pending against
Seller with respect to its ownership or operation of the Property or any portion
thereof.
B. Representations Remade. As of Closing, Seller shall be deemed to
remake and restate the representations set forth in Sections 9(A)(ii) through
(iv) except that the representations shall be updated by delivering written
notice to Purchaser in order to reflect any fact, matter or circumstance which
Seller's Chicago, Illinois representatives become aware of that would make any
of Seller's representations or warranties contained herein untrue or incorrect
(any such disclosure being referred to as a "Pre-Closing Disclosure").
Notwithstanding the foregoing, the obligation to update the representations and
warranties as provided herein shall not relieve Seller from liability (if any)
under any other provision of this Agreement.
C. Survival. The representation and warranty set forth in Section
9(A)(i) shall not survive the Closing. The representations and warranties set
forth in Section 9(A)(ii) through
9
Section 9(A)(v), subject to modifications thereto as a result of any Pre-Closing
Disclosure, shall survive the Closing, but only for a period of six (6) months
thereafter, and not otherwise.
D. Covenants. Seller hereby covenants and agrees with Purchaser
that:
(i) From and after October 16, 1997 through the date hereof,
Seller has delivered for Purchaser's review, a copy of any New Lease (as defined
above) or new Service Contract, or any modification, amendment, restatement or
renewal of any existing Service Contracts to the extent required in the Seller's
ordinary course of business (collectively, "New Agreements").
(ii) From and after the date hereof, Seller shall not enter into
any New Agreement without Purchaser's prior written consent, which will not be
unreasonably withheld or delayed. If Purchaser does not respond in writing to
Seller's request for approval or disapproval of a New Agreement within ten (10)
days after Purchaser's receipt of Seller's request, Purchaser shall be
conclusively deemed to have approved of such New Agreement. In the event
Purchaser disapproves such New Agreement by giving Seller written notice
thereof, and thereafter Seller enters into such New Agreement, Purchaser shall
have the right to terminate this Agreement, and if Purchaser so elects to
terminate this Agreement, the Earnest Money shall be returned to Purchaser by
the Escrow Agent, in which event this Agreement shall, without further action of
the parties, terminate and become null and void and neither party shall have any
further rights or obligations under this Agreement, except those which expressly
survive termination of this Agreement.
10. MISCELLANEOUS.
-------------
A. Entire Agreement. All understandings and agreements heretofore
had between Seller and Purchaser with respect to the Property, including,
without limitation, the Letter Agreement, are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties. Purchaser
acknowledges that it has inspected or will inspect the Property and that it
accepts same in its "as is" condition subject to use, ordinary wear and tear and
natural deterioration. Purchaser further acknowledges that, except as expressly
provided in this Agreement, neither Seller nor any agent or representative of
Seller has made, and Seller is not liable for or bound in any manner by, any
express or implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the Property.
B. No Assignment. Neither this Agreement nor any interest hereunder
shall be assigned or transferred by Purchaser, except to an entity which is
owned and controlled directly or indirectly by American Health Properties, Inc.,
a Delaware corporation. Seller may assign or otherwise transfer its interest
under this Agreement. As used in this Agreement, the term "Seller" and
"Purchaser" shall be deemed to include any permitted assignee or other
transferee of any Seller or Purchaser, as the case may be. Upon any such
transfer by a Seller or Purchaser, such original Seller or Purchaser, as the
case may be, shall remain liable for the obligations of Seller or Purchaser, as
the case may be, under this Agreement. Subject to the foregoing, this Agreement
shall inure to the benefit of and shall be binding upon Seller and Purchaser and
their respective successors and assigns.
C. Amendments. This Agreement shall not be modified or amended
except in a written document signed by Seller and Purchaser.
D. Time of the Essence. Time is of the essence of this Agreement.
E. Governing Law. This Agreement shall be governed and interpreted
in accordance with the laws of the State of Texas.
10
F. Notices. All notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and delivered
personally, by certified mail, return receipt requested, postage prepaid, by
overnight courier (such as Federal Express), or by facsimile transmission (with
a copy to follow by either overnight courier or certified mail, return receipt
requested, postage prepaid), addressed as follows:
If to Seller: c/o Equity Office Properties Management Corp.
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Attention: Alissa Schneider
Telephone: 312/466-3595
Facsimile: 312/559-5051
With a copy to: Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Suite 1600
Chicago, Illinois 60606
Attention: John P. Starkweather
Telephone: 312/466-3959
Facsimile: 312/454-0335
If to Purchaser: c/o American Health Properties, Inc.
6300 South Fiddler's Green Circle, Suite 1800
Englewood, Colorado 80111
Attention: President and General Counsel
Telephone: 303/796-9793
Facsimile: 303/796-9708
With a copy to: c/o American Health Properties, Inc.
6300 South Fiddler's Green Circle, Suite 1800
Englewood, Colorado 80111
Attention: Steven A. Roseman
Telephone: 303/796-9793
Facsimile: 303/796-9708
and
Gardere & Wynne
1601 Elm Street
Suite 3000
Dallas, Texas 75201
Attention: James S. Pleasant
Telephone: 214/999-3000
Facsimile: 214/999-4667
All notices given in accordance with the terms hereof shall be deemed received
seventy-two hours after posting in the U.S. Mail, postage prepaid, certified
mail, return receipt requested, or twenty-four hours after deposit with a
reputable overnight courier, or when transmitted if sent by facsimile
transmission (with proof of confirmation required), or when delivered personally
or otherwise received. Either party hereto may
11
change the address for receiving notices, requests, demands or other
communication by notice sent in accordance with the terms of this Section 10(F).
G. Inspections. Notwithstanding anything to the contrary contained in
this Agreement, Purchaser shall indemnify and hold Seller and its employees and
agents, and each of them, harmless from and against any and all losses, claims,
damages and liabilities (including, without limitation, attorneys' fees incurred
in connection therewith) arising out of or resulting from Purchaser's exercise
of its rights under the Letter Agreement prior to the date hereof, or this
Agreement, including, without limitation, any entry upon or inspection of the
Property made by Purchaser in violation of the terms, conditions and provisions
of the Letter Agreement pertaining thereto. Except upon the written request of
Seller pursuant to Section 10(K) below, Purchaser shall not advise Seller of the
results, or deliver to Seller copies, of any of the studies, reports, surveys or
other information, data and/or documents relating to the Property or any part
thereof prepared by or at the request of Purchaser, its employees, agents,
representatives or contractors. The provisions of this Section 10(G) shall
survive the Closing or any termination of this Agreement.
H. AS-IS CONDITION. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND
PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER AGREES TO TAKE THE
PROPERTY "AS IS" WITH ALL FAULTS AND CONDITIONS THEREON. ANY INFORMATION,
REPORTS, STATEMENTS, DOCUMENTS OR RECORDS ("DISCLOSURES") PROVIDED OR MADE TO
PURCHASER OR ITS CONSTITUENTS BY SELLER, ITS AGENTS OR EMPLOYEES CONCERNING THE
ENVIRONMENTAL CONDITION OF THE PROPERTY SHALL NOT BE REPRESENTATIONS OR
WARRANTIES. PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER
SHALL RELY ONLY ON ITS OWN INSPECTION OF THE PROPERTY. PURCHASER ACKNOWLEDGES
AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9(A)(IV) AND 9(C)
ABOVE, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR
WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40
C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"), AS
AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. PURCHASER, ITS SUCCESSORS AND
ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE NOT TO MAKE ANY CLAIM OR BRING ANY COST
RECOVERY ACTION OR CLAIM FOR CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST
SELLER OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, OR
ASSIGNS (COLLECTIVELY, "SELLER AND ITS AFFILIATES") BASED ON (A) ANY FEDERAL,
STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION, INCLUDING
CERCLA OR ANY STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER
ENACTED, (B) ANY DISCHARGE, DISPOSAL, RELEASE, OR
12
ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL WHATSOEVER, ON, AT, TO, OR FROM THE
PROPERTY; OR (C) ANY ENVIRONMENTAL CONDITIONS WHATSOEVER ON, UNDER, OR IN THE
VICINITY OF THE PROPERTY. EACH OF THE FOREGOING PROVISIONS SHALL SURVIVE THE
CLOSING.
I. Waiver of Jury Trial. In any lawsuit or other proceeding initiated by
Purchaser under or with respect to this Agreement, Purchaser waives any right it
may have to trial by jury. In addition, Purchaser waives any right to seek
rescission of the transaction provided for in this Agreement. Each of the
foregoing provisions shall survive the Closing.
J. Confidentiality. Except as may be required by law, without the prior
written consent of Seller, and unless the Closing occurs, Purchaser shall not
disclose to any third party, the existence of this Agreement or any term or
condition thereof or the results of any inspections or studies undertaken in
connection herewith. Notwithstanding the preceding sentence, Purchaser may
disclose such information to individuals or entities necessary for Purchaser to
consummate the transaction contemplated herein (such as lenders, engineers,
credit rating agencies, insurance companies, prospective management companies,
environmental consultants, accountants and tax advisors); provided that, prior
to any such disclosure of information, Purchaser shall notify such parties of
the strict confidential nature of any such information and direct any such
parties to maintain such confidentiality and to otherwise comply with the
provisions contained herein. Purchaser shall be responsible for any breach of
the terms of this Section 10(J) by such parties and shall indemnify, defend and
hold Seller, its beneficiaries, their partners, and their respective directors,
officers, employees and agents, and each of them, harmless from and against any
losses, claims, damages and liabilities, including, without limitation,
reasonable attorneys' fees and expenses incurred in connection therewith,
arising out of or resulting from any breach of this Section 10(J). In the event
the Closing does not occur and this Agreement is terminated, Purchaser shall,
upon written request by Seller, promptly return to Seller all copies of all such
information without retaining any copy thereof or extract therefrom. The
foregoing provision shall survive any termination of this Agreement.
K. Reports. If for any reason Purchaser does not consummate the Closing,
then to the extent permitted under Purchaser's contractual commitments,
Purchaser shall, upon Seller's request, assign and transfer to Seller all of its
right, title and interest in and to any and all studies, reports, surveys and
other information, data and/or documents relating to the Property or any part
thereof prepared by or at the request of Purchaser, its employees and agents.
Purchaser shall deliver to Seller copies of all of the foregoing, but only upon
Seller's written request therefor. The foregoing provision shall survive any
termination of this Agreement.
L. Reporting Person. Seller and Purchaser hereby designate Escrow Agent
to act as and perform the duties and obligations of the "reporting person" with
respect to the transaction contemplated by this Agreement for purposes of 26
C.F.R. Section 1.6045-4(e)(5) relating to the requirements for information
reporting on real estate transactions closed on or after January 1, 1991.
M. Survival. Except as expressly set forth in this Agreement, the rights
and obligations of the parties shall not survive the Closing or any termination
of this Agreement.
N. Audit Letter. At Purchaser's request at any time from and after the
date hereof until the date that is four (4) months after the Closing Date,
Seller shall, at Purchaser's expense, provide to Purchaser's designated
independent auditor reasonable access to the books and records of the Property,
regarding the period for which Purchaser is required to have audited financial
statements prepared with respect to the Property as may be required by the
Securities and Exchange Commission, but only to the
13
extent that such books, records and related information are in Seller's
possession or control and relate to the period during which Seller held title to
the Property. Further, Seller agrees to provide such auditor a representation
letter regarding the books and records of the Property, in substantially the
form of Exhibit L attached hereto, in connection with the normal course of
auditing the Property in accordance with generally accepted auditing standards
(but shall not thereby be deemed to have made any representation or warranty to
Purchaser or to any other third party).
[The remainder of this page is intentionally blank]
14
[signature page to Purchase and Sale Agreement]
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER: PARK PLAZA VENTURE, an Illinois joint venture
By: First Capital Institutional Real Estate Ltd.-3, a
Florida limited partnership, its general partner
By: First Capital Financial Corporation, a Florida
corporation, its managing general partner
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
By: First Capital Institutional Real Estate Ltd.-4, an
Illinois limited partnership, its general partner
By: First Capital Financial Corporation, a Florida
corporation, its managing general partner
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
PURCHASER: AHP OF TEXAS, INC., a Texas corporation
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
The undersigned hereby agrees to act as Escrow Agent pursuant to the foregoing
Agreement and to accept the foregoing Agreement as primary escrow instructions
in connection therewith:
ESCROW AGENT: HERITAGE TITLE INSURANCE COMPANY OF AUSTIN, INC.
BY:
-------------------------------------------
NAME:
-----------------------------------------
TITLE:
----------------------------------------
ADDRESS OF ESCROW AGENT:
15
Heritage Title Company of Austin, Inc.
98 San Jacinto Boulevard
Suite 400
Austin, Texas 78701
Attention: Phylis J. Donelson
Telephone: 512/505-5000
Facsimile: 512/505-5024
EXHIBITS:
- --------
A Legal Description
B Permitted Exceptions
C Notice to Tenants
D Notice to Parties To Service Contracts
E Assignment and Assumption of Leases, Service Contracts and Security Deposits
F Form of Estoppel Certificates
G Litigation
H Survey Certification
I Special Warranty Deed
J Violations of Laws
K Environmental Reports
L Audit Letter
16
EXHIBIT A
LEGAL DESCRIPTION
-----------------
TRACT A:
ALL OF BLOCK SEVEN (7) IN HERMANN PARK ADDITION, A SUBDIVISION IN HARRIS COUNTY,
TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 5, PAGE 53 OF THE
MAP RECORDS OF HARRIS COUNTY, TEXAS.
TRACT B:
TERMS, CONDITIONS AND STIPULATIONS OF THAT CERTAIN TUNNEL AGREEMENT BETWEEN
SUBJECT PROPERTY AND BLOCK 12, DATED JUNE 18, 1975, FILED FOR RECORD UNDER
HARRIS COUNTY CLERK'S FILE NO. E-639361.
TRACT C:
TERMS, CONDITIONS AND STIPULATIONS OF THAT CERTAIN TELEPHONE EASEMENT BETWEEN
LIFEMARK HOSPITALS, INC., A DELAWARE CORPORATION, AND PARK PLAZA PROFESSIONAL
BUILDING, LTD., A TEXAS LIMITED PARTNERSHIP, DATED NOVEMBER 3, 1986, FILED FOR
RECORD UNDER HARRIS COUNTY CLERK'S FILE NO. K-814491.
A-1
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments not yet delinquent.
3. Rights of tenants under the Leases.
4. Building and other governmental and quasi-governmental laws, codes and
regulations.
5. Any adverse claim to any portion of the Property which has been created by
artificial means or has accreted to any such portion so created and riparian
rights, if any.
6. Covenants, conditions, restrictions, and private or public utility easements
of record.
7. Exceptions permitted under Section 3(B) of this Agreement.
8. Underground distribution easement ten (10) feet in width as set forth in
instrument filed for record under Harris County Clerk's File No. E-648326.
(As to Tract A only)
9. Agreement concerning construction, maintenance and ownership of a tunnel
between subject property and Block 12, dated June 18, 1975, filed for record
under Harris County Clerk's File No. E-639361. (As to Tract B only)
10. Permit for use and occupancy of a portion of the City's Right-of-way
pursuant to the terms and provisions of Ordinance No. 68-115, as recorded
under Harris County Clerk's File Nos. E-329139 and E-338665. (As to Tract A
only)
11. Permit for use and occupancy of a portion of the City's Right-of-way
pursuant to the terms and provisions of Ordinance No. 68-115, as recorded
under Harris County Clerk's File Nos. E-329138 and E-338664. (As to Tract A
only)
12. Permit for use and occupancy of a portion of the City's Right-of-way
pursuant to the terms and provisions of Ordinance No. 68-115, as recorded
under Harris County Clerk's File Nos. E-329140 and E-338663. (As to Tract A
only)
13. Telephone Easement dated November 3, 1986, between Lifemark Hospitals, inc.,
and Park Plaza Professional Building, Ltd., filed for record under Harris
County clerk's File No. K-814491. (As to Tract C only)
14. Encroachment of Building into San Jacinto Street of .09 feet and .15 feet,
as shown on survey dated September 12, 1986, prepared by Chalmers L. Miller,
R.P.S. No. 4222. (As to Tract A only)
B-1
EXHIBIT C
NOTICE TO TENANTS
-----------------
___________, 1997
Re: Sale of Park Plaza Office Building,
1213 Hermann Drive, Houston, Texas (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to AHP OF TEXAS,
INC., a Texas corporation and that [TO BE PROVIDED BY PURCHASER] has been
retained by the new owner as managing agent of the building.
Any security or other deposits and any prepaid rents under your lease
have been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord,
and correspondence pursuant to your lease should be mailed to the following
address:
[TO BE PROVIDED BY PURCHASER].
Very truly yours,
Equity Office Properties Management Corp.
a Delaware corporation,
as agent for Park Plaza Venture, an Illinois
joint venture
By:_____________________________
Name:___________________________
Title:__________________________
C-1
EXHIBIT D
NOTICE TO PARTIES TO SERVICE CONTRACTS
--------------------------------------
______________, 1997
Re: Sale of Park Plaza Office Building
1213 Hermann Drive,
Houston, Texas (the "Property")
Dear Service Provider:
This is to notify you that the Property has been sold to AHP OF TEXAS,
INC., a Texas corporation ("Purchaser"). Purchaser has assumed all of the
obligations of the undersigned under the service contracts as of the date
hereof. All notices to Purchaser should be sent to Purchaser at the office of
the building, and should be sent or delivered to such address in the manner
provided in the service contract.
Very truly yours,
Equity Office Properties Management Corp.
a Delaware corporation,
as agent for Park Plaza Venture, an
Illinois joint venture
By:
-----------------------
Name:
----------------------
Title:
---------------------
D-1
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF LEASES,
------------------------------------
SERVICES CONTRACTS AND SECURITY DEPOSITS
----------------------------------------
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, PARK PLAZA VENTURE, an Illinois joint venture ("Assignor")
hereby assigns to AHP OF TEXAS, INC., a Texas corporation ("Assignee"), all of
Assignor's right, title and interest as of the date hereof in and to: (1) the
leases ("Leases") and security deposits ("Security Deposits") described in
Exhibit B attached hereto relating to certain real property known as Park Plaza
Office Building located in Houston, Texas and more particularly described in
Exhibit A attached hereto (the "Land"); (2) the service contracts set forth on
Exhibit C attached hereto ("Service Contracts"), and (3) to the extent
assignable, licenses, permits, certificates, warranties, guarantees and all
other intangible rights appurtenant to the Land or improvements therein
(including, but not limited to the right to use the trade name "Park Plaza
Office Building", if any) and telephone numbers and listing which are owned by
Assignor and used exclusively by Assignor in connection with the ownership and
operation of the Land or the improvements located thereon.
Assignee hereby accepts such assignment and hereby assumes and agree
to be bound by and to perform, as of the date hereof, the Assignor's
obligations, covenants and agreements under each of the Leases and Service
Contracts accruing on or after the date hereof, and Assignee further assumes all
liability of Assignor for the proper refund or return of the Security Deposits
if, when, and as required by the terms of the Leases or otherwise by law. In
addition, Assignee agrees to pay all brokerage fees and leasing commissions
payable from and after the date hereof in connection with any of the Leases,
including any such fees or commissions payable upon the renewal or extension of
any of the Leases. Assignor shall remain solely responsible for, shall perform
all of its obligations under, and shall retain all of its rights and interests,
in, to and under the Leases, Service Contracts and other rights and items
assigned hereunder with respect to the time period prior to the date hereof.
This Assignment and Assumption may be executed and delivered in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original and all of which shall constitute one and the same instrument.
E-1
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption effective as of this ____ day of ____________, 1997.
ASSIGNOR: PARK PLAZA VENTURE, an Illinois joint venture
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ASSIGNEE: AHP OF TEXAS, INC., a Texas corporation
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
E-2
EXHIBIT F
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
PARK PLAZA VENTURE, an Illinois joint venture
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Attention: Alissa Schneider
AHP OF TEXAS, INC., a Texas corporation
c/o American Health Properties, Inc.
6300 South Fiddler's Green Circle, Inc.
Englewood, Colorado 80111
Attention: Steven A. Roseman
Ladies and Gentlemen:
At the request of PARK PLAZA VENTURE, an Illinois joint venture
("Landlord"), made in connection with the proposed sale of the property commonly
known as Park Plaza Office Building (the "Property") and Landlord's interest in
the "Lease" (as hereinafter defined) to AHP OF TEXAS, INC., a Texas corporation
("Purchaser"), the undersigned hereby certifies to Landlord and Purchaser as
follows:
1. The undersigned is the tenant under a lease with Landlord, dated
__________, 19___, [as amended by _________________, dated __________, 19___
(collectively, the "Lease")][(the "Lease")] for suite(s) _______ on the ________
floor(s) at the Property (the "Premises").
2. The Lease sets forth the entire agreement between Landlord and
the undersigned with respect to the Premises, is in full force and effect and
has not been amended, modified or extended.
3. The monthly [base][minimum] rent of $________ due under the Lease
has been paid through _______, 1996 and all additional rent (consisting of
$_________ per month for estimated operating expenses and estimated real estate
taxes) due under the Lease has been paid through ______________, 1996.
4. The Landlord is not in default under the Lease.
5. The expiration date of the Lease is ____________________, 19___.
6. The amount of the security deposit currently held by Landlord
under the Lease is $ _______________.
7. There is no prepaid rent, except $ _____________.
8. The undersigned has not assigned any of its interest in the Lease
or subleased all or any portion of the Premises, except as follows:
_____________________________.
F-1
9. The undersigned has no defenses, counterclaims, set-offs or
concessions against rent or charges due or to become due under the Lease.
10. The undersigned has unconditionally accepted the Premises and
[has commenced payment of full rent] [or] [is entitled to _____ month's
abatement of base rent, as of the date hereof] under the Lease and is the owner
and holder of the entire tenant's interest in the Lease.
11. All work required to be performed by Landlord as of the date
hereof with respect to the Lease and in connection with the Premises has been
completed by Landlord to the satisfaction of Tenant.
12. The "base year" for operating expense reimbursements and real
estate taxes under the Lease is 19___.
13. The undersigned has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Premises or the Property.
14. This Tenant Estoppel Certificate (this "Certificate") shall inure
to the benefit of Landlord, Purchaser and their successors and assigns.
15. If we are a corporation, the undersigned is a duly appointed
officer of the corporation signing this Certificate and is the incumbent in the
office indicated under this Certificate and is the incumbent in the office
indicated under his or her name. In any event, the undersigned is duly
authorized to execute this Certificate.
Very truly yours,
[NAME OF TENANT]
By:______________________________________
Name:____________________________________
Title:___________________________________
Date: ____________________, 1997
F-2
EXHIBIT G
LITIGATION
----------
None.
G-1
EXHIBIT H
SURVEY CERTIFICATION
--------------------
The undersigned, a licensed, Registered Professional Land Surveyor, legally
conducting the engineering and survey business in the State of Texas does hereby
certify to Chicago Title Insurance Company, AHP of Texas, Inc., a Texas
corporation and Park Plaza Venture, an Illinois joint venture:
(a) that this survey of the property depicted herein (the "Property") was
actually made upon the ground on ___________, 1997 by the undersigned
surveyor and/or under his or her direct supervision;
(b) that this survey and the information, courses and distances shown
thereon are correct and there are no discrepancies, conflicts,
shortages in area, boundary line conflicts, encroachments, overlapping
of improvements, easements, or rights-of-way which I have discovered,
have been advised or otherwise have knowledge of, except as noted on
this survey;
(c) that the title lines and lines of actual possession are the same and
the legal description of the Property noted in the "Title Commitment"
referenced below describes the Property shown and depicted in this
survey;
(d) that the location and type of buildings and improvements are as shown
and all are within the boundary line of the Property;
(e) that there are no apparent violations of zoning ordinances,
restrictions or other rules or regulations with respect to the
location of said buildings and improvements;
(f) that there are no easements, encroachments of any building,
improvement or other item (including without limitation no
encroachment of any structure, building, improvement or other item
upon or over any boundary lines of any portion of the Property,
easements on or over the Property, established building and set-back
lines, and/or street lines), or uses affecting the Property appearing
from a careful, physical inspection of the Property other than those
shown and depicted on this survey;
(g) that there are no building encroachments on the Property or upon
adjacent land abutting the Property nor upon any easements whatsoever,
except as shown on this survey;
(h) that all utility services required for the operation of the Property
either enter the Property through adjoining and immediately contiguous
fully dedicated public streets or the survey shows the point of entry
and location of any utilities which pass through or are located on
adjoining land and all easements relating to such utilities passing
through or located on adjoining land;
(i) that any discharge into streams, rivers or other waters or water
conveyance systems are shown on the survey;
(j) that all wells, water courses and water bodies on the property are
shown on the survey;
H-1
(k) that ingress and egress to the Property are provided by direct
contiguous access to fully and irrevocably dedicated public streets;
(l) that the parcel(s) described in the survey do not lie within flood
hazard areas in accordance with the document entitled "Department of
Housing and Urban Development, Federal Insurance Administration -
Special Flood Hazard Area Maps" or similar flood hazard area maps
which may be developed under the laws of the State of Texas;
(m) that the Property is located within an area having Zone designation
_____ by the Secretary of Housing and Urban Development, on Flood
Insurance Rate Map No._______, with a date of identification of
_____________, 199___ in Collin County, State of Texas which is the
current Flood Insurance Rate Map for the community in which the
Property is located; and
(n) that this survey is true, correct and complete in all respects, and
has been prepared in accordance with ALTA/ACSM requirements for an
ALTA Survey, the current Texas Surveyor's Association Standards and
Specifications for a Category 1A Condition II Survey, ACSM 1992
Minimum Detail Requirements (including but not limited to Additional
Survey Requirements 1-4 and 7-13 in Table 3 contained therein) and any
additional applicable State standards.
The undersigned has examined Chicago Title Insurance Company Commitment No.
______ dated as of ___________, 1997 (the "Title Commitment") and the location
of each matter shown thereon, to the extent it can be located, has been shown on
this survey with the appropriate recording reference and, to the extent any such
matter cannot be located, the effect thereof upon the Property and upon adjacent
land abutting the Property has been noted on this survey, to the best of the
undersigned's knowledge and belief.
DATED THIS _______ DAY OF________________________, 1997
_______________________________
Name:
Registered Professional Land Surveyor
Texas Registration No. ______________
[STAMP]
H-2
EXHIBIT I
SPECIAL WARRANTY DEED
---------------------
STATE OF TEXAS )
) ss
COUNTY OF HARRIS )
THAT, PARK PLAZA VENTURE, an Illinois joint venture (the "Grantor"),
whose mailing address is c/o Equity Office Properties Management Corp., Two
North Riverside Plaza, Suite 2200, Chicago, Illinois 60606, for and in
consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other valuable
consideration paid to Grantor by AHP OF TEXAS, INC., a Texas corporation (the
"Grantee"), the receipt and sufficiency of which is hereby acknowledged, has,
subject to the exceptions hereinafter set forth, GRANTED, BARGAINED, SOLD AND
CONVEYED, AND BY THESE PRESENTS DOES GRANT, BARGAIN, SELL AND CONVEY unto
Grantee, all of the real property located in the City of Houston, County of
Harris, State of Texas, described in Exhibit "A" attached hereto and
incorporated herein by reference, together with all improvements located thereon
and all rights and appurtenances appertaining thereto (the "Property").
This conveyance is both made by Grantor, and accepted by Grantee,
subject only to those items described in Exhibit "B" attached hereto and
incorporated herein by reference (the "Permitted Exceptions").
TO HAVE AND TO HOLD the property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, and its
successors and assigns forever; and Grantor does hereby bind itself, and its
successors and assigns, to WARRANT AND FOREVER DEFEND, all and singular, the
Property, subject only to the Permitted Exceptions, unto Grantee, and its
successors and assigns, against every person whomsoever lawfully claiming or to
claim the Property or any part thereof, by, through or under Grantor, but not
otherwise.
Except the special warranties of title contained herein, and except
those representations and warranties of Grantor set forth in that certain
Purchase and Sale Agreement between Grantor and Grantee dated as of November 18,
1997 which survive the delivery of this instrument, Grantor hereby disclaims all
warranties of any kind or nature whatsoever (including warranties of
habitability and fitness for a particular purpose), whether expressed or
implied, including but not limited to warranties with respect to the Property,
the zoning of the Property, the soil conditions of the real property, or the
suitability of the Property for Grantee's intended use thereof. By its
acceptance hereof, Grantee acknowledges that Grantor is conveying and Grantee is
purchasing the Property "AS IS" and in its present condition, and Grantee is not
relying upon any representation of any kind or nature made by Grantor, or any of
its employees, or agents with respect to the Property, and, in fact, no such
representations have been made by Grantor, or any of its employees or agents.
Further, with and without in any way limiting any other provision of
this Special Warranty Deed, Grantor makes no warranty with respect to the
presence or absence on or beneath the Property (or any parcel in proximity
thereto) of hazardous substances or materials which are categorized as hazardous
or toxic under any local, state or federal law, statute, ordinance, rule, or
regulation pertaining to environmental or substance regulation, contamination,
clean-up or disclosure, and shall have no liability to Grantee therefor. By its
acceptance hereof, Grantee accepts the risk of the presence of any such
substances or materials.
I-1
All taxes and assessments for the year as of which this Deed is executed
have been prorated as of the effective date of this Deed and Grantee hereby
assumes liability for the payment thereof and for payment of all subsequent
assessments for that and prior years due to change in land usage, ownership or
both.
THIS INSTRUMENT PREPARED BY:
Mark A. Trager
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Suite 1600
Chicago, Illinois 60606
IN WITNESS WHEREOF, this Special Warranty Deed has been executed
by Grantor as of the ____ day of _________________, 1997.
GRANTOR: PARK PLAZA VENTURE, an Illinois joint venture
By: First Capital Institutional Real Estate Ltd.-3, a
Florida limited partnership, its general partner
By: First Capital Financial Corporation, a Florida
corporation, its managing general partner
By: _____________________________________________
Name: ___________________________________________
Title: __________________________________________
By: First Capital Institutional Real Estate Ltd.-4, an
Illinois limited partnership, its general partner
By: First Capital Financial Corporation, a Florida
corporation, its managing general partner
By: _____________________________________________
Name: ___________________________________________
Title: __________________________________________
I-2
STATE OF ILLINOIS )
)
COUNTY OF COOK )
I, _______________________________________________, a Notary Public in and
for the County and State aforesaid, do hereby certify that ____________________
__________________ appeared before me this day and did say that s/he is the Vice
President of First Capital Financial Corporation, a Florida corporation, general
partner of FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD.-3, a Florida limited
partnership, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such officer and acknowledged that
s/he signed and delivered the said instrument as the free and voluntary act of
said corporation for the uses and purposes therein set forth.
Given under my hand and notarial seal this ___ day of _____, 1997.
------------------------------------
Notary Public
My Commission Expires: ________ (SEAL)
STATE OF ILLINOIS )
)
COUNTY OF COOK )
I, _______________________________________________, a Notary Public in and
for the County and State aforesaid, do hereby certify that ____________________
_________________ appeared before me this day and did say that s/he is the Vice
President of First Capital Financial Corporation, a Florida corporation, general
partner of FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD.-4, a Florida limited
partnership, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such officer and acknowledged that
s/he signed and delivered the said instrument as the free and voluntary act of
said corporation for the uses and purposes therein set forth.
Given under my hand and notarial seal this ___ day of ______________, 1997.
------------------------------------
Notary Public
My Commission Expires: ________ (SEAL)
ADDRESS FOR TAX NOTICES:
- ------------------------
AHP OF TEXAS, INC.
6400 South Fiddler's Green Circle
Suite 1800
Englewood, Colorado 80111
I-3
EXHIBIT J
VIOLATIONS OF LAWS
------------------
None.
J-1
EXHIBIT K
ENVIRONMENTAL REPORTS
---------------------
1. Report of Abatement Observations and Air Monitoring prepared by Law
Engineering dated May, 1994.
2. Report of Limited Indoor Air Quality Study prepared by Law Engineering
dated September, 1992.
3. Report of Floor Drain and Sump Sampling prepared by Law Engineering dated
November 19, 1992.
4. Report of Cost Estimate for Removal of Asbestos Containing Materials
prepared by Law Associates dated January 28, 1992.
5. Phase I Environmental Site Assessment and Limited Asbestos Survey prepared
by Law Engineering dated January 27, 1992.
6. Report on Phase I Environmental Survey prepared by PEI Associates, Inc.
dated September 7, 1990.
K-1
EXHIBIT L
AUDIT LETTER
------------
- ------------------
- ------------------
- ------------------
Dear Sirs:
We are writing at your request to confirm our understanding that your audit
of the statement of operating income for the year ended _________________,
199__, was made for the purpose of expressing an opinion as to whether the
statement of operating income presents fairly, in all material respects, the
results of operations of [Name of Project] ("Project") in conformity with
generally accepted accounting principles. These representations are made
exclusively to [Auditor] and not to the buyer of the Project or to any other
third party. In connection with your _________________, 199__ audit, we confirm,
to the best of our knowledge and belief, with respect to our daily operations
and without independent investigation or inquiry, the following representations
made during your audit:
1. We have made available to you all material financial records and related
data concerning this Project, which are in our possession.
2. We are not aware of any:
a. Irregularities involving any member of management or employees that
could have a materially adverse effect on the statement of operating
income.
b. Notices of violations of laws or regulations, the effect of which should
be considered for disclosure in the financial statements or as a basis
for recording a loss contingency.
c. Material liabilities, gain or loss contingencies or other transactions
(including oral and written guarantees) that are required to be but have
not been accrued or disclosed.
d. Material events that have occurred subsequent to _______________, 199__
that would require material adjustment to the statement of operating
income.
3. The Company has complied with all material aspects of contractual
agreements relating to the Project (e.g. management contracts) that would
have a material effect on the statement of operating income in the event of
noncompliance.
4. All significant payments to affiliated companies of the undersigned have
been properly recorded or disclosed in the financial statements.
By:
-------------------------------
L-1