EXHIBIT 10.22
SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT ("Agreement"), dated as of August 31,
2001 (the "Effective Date"), is made and entered into upon the terms and
conditions hereinafter set forth, by and between MEDITRUST HEALTHCARE
CORPORATION, a Delaware corporation ("Seller"), IASIS HEALTHCARE HOLDINGS, INC.,
a Delaware corporation ("Purchaser"), and ST. LUKE'S MEDICAL CENTER, LP, a
Delaware limited partnership ("Lessee").
RECITALS:
1. Pursuant to a Facility Lease dated as of February 1, 1995, by
and between Meditrust of Arizona, Inc., a Delaware corporation
("Meditrust-Arizona"), and OrNda HealthCorp of Phoenix, Inc., a California
corporation ("OrNda-Phoenix"), a memorandum of which is of record as Instrument
No. 95-0079420 in the Official Records of the Maricopa County (Arizona)
Recorder, as amended by First Amendment to Facility Lease dated January 22,
1996, by and between Meditrust-Arizona and OrNda-Phoenix, a memorandum of which
is of record as Instrument No. 96-0047708 in the Official Records of the
Maricopa County Recorder, as further amended by Second Amendment to Facility
Lease dated September 15 1997, by and between Meditrust-Arizona and
OrNda-Phoenix (collectively, the "Facility Lease"), Meditrust-Arizona leased to
OrNda-Phoenix certain real property more particularly described in the Facility
Lease (collectively, the "Real Property").
2. Pursuant to a Ground Lease dated January 22, 1996, by and
between Meditrust-Arizona and Tempe St. Luke's Investors Limited Partnership, an
Arizona limited partnership ("TSLILP"), a memorandum of which is of record as
Instrument No. 96-0047701 in the Official Records of the Maricopa County
Recorder (the "Ground Lease"), Meditrust-Arizona leased to TSLILP a portion of
the Real Property initially leased pursuant to the Facility Lease, as more
particularly described in the Ground Lease (the "Ground Lease Parcel").
3. Meditrust-Arizona merged with and into Meditrust Company LLC,
a Delaware limited liability company ("Meditrust"), which in turn merged with
and into New Meditrust Company LLC, a Delaware limited liability company ("New
Meditrust").
4. Lessee is the lessee under the Facility Lease pursuant to a
Lease Assignment and Assumption Agreement dated October 16, 1999, by and among
New Meditrust, OrNda-Phoenix and Lessee. Purchaser is the general partner of
Lessee.
5. AZ-Tempe Luke Limited Partnership, a Florida limited
partnership ("Ground Lessee"), is the lessee under the Ground Lease pursuant to
an Assignment and Assumption of Ground Lease and Easement Agreement dated
January 20, 1998, by and between TSLILP and MT-BR Limited Partnership, a
Delaware limited partnership ("MT-BR"), of record as Instrument No. 98-0071562
in the Official Records of the Maricopa County Recorder, and an Assignment and
Assumption of Ground Lease and Easement Agreement dated January 28, 2000, by and
among MT-BR, Ground Lessee and New Meditrust, of record as Instrument No.
00-0143989 in the Official Records of the Maricopa County Recorder.
6. New Meditrust conveyed the Real Property to Seller by deeds
dated March 21, 2001, of record as Instrument Nos. 01-0238127 and 01-0238128 in
the Official Records of the Maricopa County Recorder. The interest of New
Meditrust in, to and under the Facility Lease was assigned to and assumed by
Seller pursuant to an Assignment and Assumption Agreement dated March 28, 2001,
by and between New Meditrust and Seller. The interest of New Meditrust in, to
and under the Ground Lease has been or will be assigned to and assumed by Seller
pursuant to an Assignment and Assumption Agreement dated as of March 21, 2001,
by and between New Meditrust and Seller.
7. Subject to the terms and conditions of this Agreement, Seller
has agreed to sell to Purchaser, and Purchaser has agreed to purchase from
Seller, the right, title and interest of Seller in, to and under the Real
Property, the Ground Lease and certain other assets hereinafter described.
AGREEMENTS:
NOW, THEREFORE, in consideration of the Purchase Price, the mutual
covenants and agreements of the parties set forth herein and other good and
valuable consideration, the receipt and sufficiency of all of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assets To Be Purchased. Subject to the terms and conditions of
this Agreement, Seller shall sell and convey to Purchaser, and Purchaser shall
purchase from Seller, all of Seller's right, title and interest in, to and under
the following (collectively the "Conveyed Assets"):
(a) the Real Property other than the Ground Lease Parcel,
together with (1) all air rights, easements, rights of way, tenements
and hereditaments appertaining thereto and (2) all buildings,
structures, fixtures and other improvements permanently erected or
placed thereon;
(b) the Ground Lease Parcel, together with (1) all air
rights, easements, rights of way, tenements and hereditaments
appertaining thereto and (2) to the extent of any interest of Seller
therein, all buildings, structures, fixtures and other improvements
permanently erected or placed thereon;
(c) to the extent of any interest of Seller therein, all
personal property and fixtures located on or at the Real Property (the
"Personal Property");
(d) the Ground Lease; and
(e) all warranty and guaranty claims (if any) under or
with respect to the Personal Property or with respect to any
construction of or repairs to the Premises (defined below) or any part
thereof.
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The property and interests in property described in the preceding clauses (a),
(b) and (c), to the full extent of Seller's right, title and interest therein,
thereto and thereunder, are sometimes herein referred to collectively as the
"Premises".
2. Purchase Price; Earnest Money; Escrow Agent.
(a) The purchase price for the Conveyed Assets shall be
the sum of Fifty-Five Million and No/100ths Dollars ($55,000,000.00)
(the "Purchase Price"), payable as follows:
(1) The sum of Five Hundred Thousand and
No/100ths Dollars ($500,000.00) (the "Earnest Money") shall be
paid to First American Title Insurance Company, a California
corporation having a place of business at 6077 Primacy
Parkway, Suite 121-B, Memphis, Tennessee 38119 ("Escrow
Agent"), in cash or other immediately available funds within
one (1) business day following the final execution of this
Agreement, to be held in escrow by Escrow Agent pursuant to
the terms of this Section 2 and applied in accordance with the
terms of this Agreement. At the closing of the sale and
purchase of the Conveyed Assets (the "Closing"), the Earnest
Money shall be returned to Purchaser or applied to the payment
of the Purchase Price, as directed by Purchaser.
(2) The Purchase Price (including that portion
of the Earnest Money, if any, applied to the payment of the
Purchase Price in accordance with Purchaser's directions)
shall be paid in cash or other immediately available funds at
Closing.
(b) Purchaser shall be entitled to make such arrangements
as may be acceptable to Escrow Agent to invest the Earnest Money in an
interest-bearing account in any banking institution in which Escrow
Agent currently maintains one or more accounts, with interest earned
becoming part of the Earnest Money; provided, however, that any such
instructions from Purchaser must be in writing and Purchaser shall
assume any risk of loss thereby.
(c) Without limiting any other right or remedy of
Purchaser hereunder, in the event that the Closing does not occur
because of the nonoccurrence of a Closing Condition specified in
paragraphs 5(a)(2) through (5), subsection 5(b) or paragraphs 5(c)(3)
or (4), the Earnest Money shall be paid or returned to Purchaser.
(d) Escrow Agent shall not be liable for any loss or
damage resulting from the following:
(1) The financial status or insolvency of, or
any misrepresentation made by, any other party to this
Agreement.
(2) The legal effect or any insufficiency of any
instrument deposited with or delivered by or to Escrow Agent
or exchanged by the parties hereunder.
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(3) The default, error, action or omission of
any other party to this Agreement.
(4) Any delay in any electronic wire transfer of
funds that is not the result of the actions of Escrow Agent.
(5) Any loss, diminution in value or failure to
achieve a greater profit as a result of the Earnest Money
deposit, any loss that arises from the fact that the amount of
the deposit may cause the aggregate amount of the depositor's
accounts to exceed $100,000 and that the excess amount is not
insured by the Federal Deposit Insurance Corporation (FDIC),
any loss or impairment of funds that have been deposited in
escrow while those funds are in the course of collection or
while those funds are on deposit in a financial institution if
such loss or impairment results from the failure, insolvency
or suspension of business of a financial institution, or any
loss or impairment of funds due to the invalidity of any
draft, check, document or other negotiable instrument
delivered to Escrow Agent.
(6) The expiration of any time limit or other
consequence of delay unless a properly executed instrument,
accepted by Escrow Agent, has instructed Escrow Agent to
comply with said time limit.
(7) Escrow Agent's compliance with any legal
process, subpoena, writ, order, judgment or decree of any
court, whether issued with or without jurisdiction and whether
or not subsequently vacated, modified, set aside or reversed.
(e) In the event that litigation is initiated relating to
this Agreement, the parties hereto agree that Escrow Agent shall be
held harmless from any and all loss, damages, claims, liabilities,
judgments and other costs and expenses of every kind and nature that
may be incurred by Escrow Agent by reason of its acceptance of, and its
performance under, this Escrow Agreement (including, without
limitation, attorney's fees), except any acts or omissions arising from
Escrow Agent's willful default or gross negligence. To the extent that
Escrow Agent holds funds under the terms of this Escrow Agreement, the
parties agree that Escrow Agent may charge those funds with any such
attorney's fees, court costs and expenses as they are incurred by
Escrow Agent.
(f) In the event that conflicting claims or demands are
made on Escrow Agent or Escrow Agent, in good faith, believes that any
instructions with regard to the Earnest Money are in conflict or are
unclear or ambiguous, Escrow Agent may refuse to comply with any such
instruction, claim or demand so long as such disagreement shall
continue, and in so refusing Escrow Agent shall not release the Earnest
Money or make any other disposition of the Earnest Money. Escrow Agent
shall not be or become liable in any way to the parties for its failure
or refusal to comply with any such conflicting instructions or adverse
claims or demands, and it shall be entitled to continue so to refrain
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from acting until such conflicting or adverse demands (i) shall have
been adjusted by agreement and Escrow Agent shall have been notified in
writing thereof by the parties or (ii) shall have been finally
determined in a court of competent jurisdiction. Furthermore, Escrow
Agent may, but shall not be required to, bring an interpleader action
in either Shelby County, Tennessee, or Maricopa County, Arizona. Such
action shall not be deemed to be the "fault" of Escrow Agent, and
Escrow Agent may lay claim to or against the Earnest Money for its
reasonable costs and attorney's fees in connection with same, through
final appellate review. To that end, the parties hereto other than
Escrow Agent agree to indemnify Escrow Agent from all such attorney's
fees, court costs and expenses.
(g) Escrow Agent shall receive a fee of Five Hundred
Dollars ($500.00) for its services under this Agreement unless
extraordinary requirements are made for its services as Escrow Agent,
which fee is to be paid by Purchaser.
3. Title Evidence.
(a) Title Commitment. With reasonable promptness
following the Effective Date, Purchaser shall obtain a commitment for
the issuance of an owner's policy of title insurance (ALTA Form B-1992)
with respect to the Real Property (the "Title Commitment") in the full
amount of the Purchase Price, issued by a title insurance company
selected by Purchaser (the "Title Company"), together with copies of
all recorded exceptions to title disclosed thereby (the "Title
Exception Documents"). The Title Commitment shall show Purchaser or its
assigns as the proposed insured thereunder and shall show Seller as
owner of the Real Property, subject to any exceptions so disclosed.
(b) Survey. Within five (5) business days after the
Effective Date, Seller shall provide Purchaser with a copy of any
existing survey of the Real Property in Seller's possession (the
"Existing Survey"). Purchaser also may in its discretion obtain a
current boundary survey of the Real Property prepared by a duly
licensed land surveyor, certified to Seller, Purchaser and Title
Company pursuant to a form of certificate acceptable to them (the
"Survey", which term shall refer to the Existing Survey if Purchaser in
its discretion determines not to obtain a current boundary survey of
the Real Property).
(c) Title/Survey Review. As used herein, "Permitted
Exceptions" means, collectively: (1) applicable laws and regulations of
any governmental authority; (2) all taxes due and payable for period
beginning February 1, 1995; (3) any liens for municipal betterments
that are not due as of the Closing Date; (4) the matters listed in
Exhibit B to the Facility Lease; (5) any encumbrances created by Lessee
or Lessee's predecessor in interest under the Facility Lease; (6) with
respect to the Ground Lease Parcel only, that certain Fee and Leasehold
Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of January 28, 2000, from Ground Lessee to
Chicago Title Insurance Company, Trustee, for the use and benefit of
GMAC Commercial Mortgage Corporation ("GMAC"), of record as Instrument
No. 00-0143990 in the Official Records of the Maricopa County Recorder,
as the same may now or hereafter be amended (the "GMAC Deed of Trust"),
(7) any other encumbrances recorded
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after February 1, 1995 that do not unreasonably interfere with the use
and enjoyment of the Premises for the Primary Intended Use (as defined
in the Facility Lease) and that would not preclude Seller from
providing insurable title to the Premises; and (8) any matters shown on
the Title Commitment or the Survey and not objected to by Purchaser
before the expiration of the Inspection Period. The foregoing listing
of Permitted Exceptions shall not in any way restrict or limit
Purchaser's rights pursuant to paragraph 5(a)(1), including Purchaser's
right to disapprove the Premises for any reason including its
dissatisfaction with any matter relating to title to the Premises,
regardless of whether such matter otherwise would constitute a
Permitted Exception.
If, on or before the Closing Date, Purchaser determines that
title to the Premises is subject to any matter other than Permitted
Exceptions, Purchaser shall provide Seller with written notice (the
"Title Objection Notice") specifying the matters other than Permitted
Exceptions that affect title to the Premises and to which Purchaser
objects (any such exceptions to which Purchaser so objects being
hereinafter called "Unauthorized Exceptions"). Seller shall have five
(5) business days after receipt of Purchaser's Title Objection Notice
to notify Purchaser which Unauthorized Exception(s), if any, Seller, in
the exercise of its sole discretion, will agree to cure at or prior to
the Closing (subject to subsection 11(e)), whereupon Purchaser shall
have three (3) business days after receipt of such notice to elect
either to: (i) terminate this Agreement by written notice to Seller,
without any liability on its part, whereupon the Earnest Money shall be
paid or returned to Purchaser and the parties hereto shall have no
further rights, duties or obligations hereunder except as otherwise
expressly provided herein; or (ii) accept title to the Real Property
subject only to such Unauthorized Exceptions as Seller has not agreed
to cure, without reduction in the amount of the Purchase Price except
for reductions necessary to remove liens securing liquidated amounts
that are not the responsibility of Lessee (or its predecessor in
interest as lessee under the Facility Lease) under the Facility Lease
and except as otherwise expressly provided herein, in which case such
Unauthorized Exceptions shall be deemed to be Permitted Exceptions
hereunder. In the event that Purchaser fails to terminate this
Agreement in accordance with clause (i) above by giving written notice
to Seller within the five (5) business day period aforesaid, Purchaser
shall be deemed to have elected to take title to the Real Property in
accordance with the terms of clause (ii) above. At or prior to the
Closing, Seller shall cure the Unauthorized Exceptions that Seller has
notified Purchaser in writing that Seller will cure.
4. Furnishing of Information.
(a) As soon as is practicable, but in any event within
five (5) business days after the Effective Date, Seller shall deliver
to Purchaser the following information and materials (the "Due
Diligence Materials"), to the extent such materials exist and are in
Seller's possession or under Seller's control:
(1) any title insurance commitments or policies
regarding the Real Property or any portion thereof, together
with copies of any documents identified therein as exceptions
to title;
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(2) any Existing Survey;
(3) any plans, drawings, specifications and
engineering and architectural studies and work (including "as
built" plans and drawings, if any) with regard to the
Premises;
(4) copies of the Facility Lease and the Ground
Lease (sometimes herein referred to individually and
collectively as the "Leases") and any amendments or proposed
amendments thereto;
(5) copies of any soil boring or other similar
engineering reports with respect to the Premises obtained
during the period during which Seller has owned the Premises;
and
(6) copies of any "Phase 1" or other
environmental assessment reports with respect to the Premises
obtained during the period during which Seller has owned the
Premises.
Seller makes no representation or warranty regarding the content of any
of the foregoing. Furthermore, notwithstanding the delivery of items to
Purchaser pursuant to paragraphs (1) and (2) above, the parties hereto
acknowledge and agree that Purchaser shall have the sole responsibility
to obtain its own title insurance and any updated survey it desires to
have.
(b) Seller acknowledges and agrees that
Purchaser may, at Purchaser's sole expense, perform engineering and
environmental studies, which may include soil borings and other
physical examination and testing of the Real Property; provided,
however, that after performing such tests the Real Property shall, at
Purchaser's expense, be returned to substantially the same condition as
it was in prior to the performance of such tests. Purchaser shall
indemnify Seller and hold Seller harmless from and against any losses,
claims, damages, liabilities and expenses, including reasonable
attorneys' fees, that may be imposed upon or incurred by Seller as a
result of the above-described activities of Purchaser on the Real
Property, and this indemnity obligation shall survive the Closing or
any termination of this Agreement. In the event that the Closing does
not occur through no fault of Seller, Purchaser shall provide to
Seller, upon Seller's request, copies of all reports, summaries and
test results obtained by Purchaser with respect to the Property.
5. Conditions to Closing. In addition to any conditions to
Closing set forth elsewhere in this Agreement:
(a) The Closing and Purchaser's obligations hereunder
with respect thereto are expressly contingent and conditioned upon the
fulfillment, compliance, satisfaction and performance of each of the
following conditions at or prior thereto, any one or more of which may
be waived or deferred in whole or in part, but only in writing, by
Purchaser at its option and in its sole discretion; provided, however,
that any condition precedent to Purchaser's obligations that has not
been fulfilled, complied with, satisfied or performed
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at or prior to the Closing shall be conclusively deemed waived if
Purchaser consummates the Closing despite the lack of fulfillment,
compliance with, satisfaction or performance of such condition:
(1) Purchaser shall have inspected and approved
the Premises and the Due Diligence Materials. Purchaser shall
have a period of time beginning on the Effective Date and
ending at 11:59 p.m. Central time on October 1, 2001 (the
"Inspection Period", which shall be extended by one day for
each day after the five business day period described in
subsection 4(a) that elapses prior to delivery of the last of
the Due Diligence Materials to be delivered to Purchaser
pursuant to paragraphs 4(a)(1), (2) and (4)) within which to
examine same and to inspect the Premises and to indicate its
disapproval of the Premises or the Due Diligence Materials or
any part thereof to Seller by delivering written notice of
same to Seller. If Purchaser, in Purchaser's sole discretion,
finds the Premises or any of the Due Diligence Materials
unacceptable in any respect, Purchaser may terminate this
Agreement by so notifying Seller prior to the expiration of
the Inspection Period, in which case the parties hereto shall
have no further duties, rights or obligations hereunder except
as otherwise expressly provided in Sections 4 and 18, and
Seller shall instruct Escrow Agent to pay or return the
Earnest Money to Purchaser. If Purchaser fails to notify
Seller in writing of Purchaser's disapproval of the Premises
or the Due Diligence Materials within the Inspection Period,
Purchaser will be deemed to have approved the condition of the
Premises and the form and content of the Ground Lessee
estoppel certificate to be delivered by Seller pursuant to
paragraph 13(h).
(2) Not later than the Closing Date, (A)
Purchaser shall have obtained new financing for the purchase
of the Conveyed Assets and expenses related thereto, in a
principal amount not less than the amount of the Purchase
Price, on terms and conditions satisfactory to Purchaser, and
(B) Purchaser shall have obtained any consents, approvals or
waivers regarding this transaction (collectively, the "Iasis
Credit Facility Consents") required under the terms of or in
connection with the Credit Agreement dated October 15, 1999,
by and among IASIS Healthcare Corporation, a Delaware
corporation (the "Company"), certain lenders, J.P. Morgan
Securities, Inc. and The Bank of Nova Scotia, as Co-Lead
Arrangers and Co-Book Runners, Paribas, as Documentation
Agent, The Bank of Nova Scotia, as Syndication Agent, and
Morgan Guaranty Trust Company of New York, as Administrative
Agent, as amended (the "Credit Agreement"). If Purchaser fails
to consummate the Closing solely because a condition specified
in either clause (A) or (B) of the preceding sentence has not
been satisfied, Purchaser will be responsible to reimburse
Seller for any legal fees and other out-of-pocket expenses, if
any, reasonably incurred by Seller subsequent to the Effective
Date in preparing to close the transaction that is the subject
of this Agreement; provided, however, that the amount for
which Purchaser is obligated to reimburse Seller pursuant to
this sentence in no event shall exceed $50,000.
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(3) All of the covenants and agreements made by
Seller in this Agreement shall have been fully and timely
performed in all material respects, and Purchaser shall have
received the Seller Closing Certification, dated as of the
Closing Date and disclosing no events or changes in facts or
circumstances regarding Seller's representations and
warranties that have occurred after the date hereof except as
have been approved by Purchaser, in its discretion. Purchaser
shall not be obligated to purchase less than all of the Real
Property and, subject to the terms and conditions of this
Agreement, the entire Real Property shall be sold and
purchased simultaneously.
(4) There shall be no writ, injunction, decree
or order of any nature issued by or pending before any court
or governmental agency directing that the transactions
contemplated by this Agreement not be consummated.
(5) Any applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR
Act") shall have been terminated or expired after the filing
of notification and report forms in accordance with subsection
11(b), with no action by any governmental authority having
been taken during such waiting period seeking to prevent or
materially modify the transaction contemplated hereunder.
(b) The Closing and Lessee's obligations hereunder with
respect thereto are expressly contingent and conditioned upon the
fulfillment, compliance, satisfaction and performance of each of the
following conditions at or prior thereto, any one or more of which may
be waived or deferred in whole or in part, but only in writing, by
Lessee at its option and in its sole discretion; provided, however,
that any condition precedent to Lessee 's obligations that has not been
fulfilled, complied with, satisfied or performed at or prior to the
Closing shall be conclusively deemed waived if Lessee consummates the
Closing despite the lack of fulfillment, compliance with, satisfaction
or performance of such condition:
(1) Not later than the Closing Date, Purchaser
and Lessee shall have obtained the Iasis Credit Facility
Consents.
(2) All of the covenants and agreements made by
Seller in this Agreement shall have been fully and timely
performed in all material respects, and Lessee shall have
received the Seller Closing Certification, dated as of the
Closing Date and disclosing no events or changes in facts or
circumstances regarding Seller's representations and
warranties that have occurred after the date hereof except as
have been approved by Lessee, in its discretion.
(3) There shall be no writ, injunction, decree
or order of any nature issued by or pending before any court
or governmental agency directing that the transactions
contemplated by this Agreement not be consummated.
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(4) Any applicable waiting period under the HSR
Act shall have been terminated or expired after the filing of
notification and report forms in accordance with subsection
11(b), with no action by any governmental authority having
been taken during such waiting period seeking to prevent or
materially modify the transaction contemplated hereunder.
(c) The Closing and Seller's obligations hereunder with
respect thereto are expressly contingent and conditioned upon the
fulfillment, compliance, satisfaction and performance of each of the
following conditions at or prior thereto, any one or more of which may
be waived or deferred in whole or in part, but only in writing, by
Seller at its option and in its sole discretion; provided, however,
that any condition precedent to Seller's obligations that has not been
fulfilled, complied with, satisfied or performed at or prior to the
Closing shall be conclusively deemed waived if Seller consummates the
Closing despite the lack of fulfillment, compliance with, satisfaction
or performance of such condition:
(1) All of the covenants and agreements made by
Purchaser and Lessee in this Agreement shall have been fully
and timely performed in all material respects, and Seller
shall have received the Purchaser Closing Certification and
the Lessee Closing Certification, dated as of the Closing Date
and disclosing no events or changes in facts or circumstances
regarding Purchaser's or Lessee's representations and
warranties that have occurred after the date hereof except as
have been approved by Seller, in its discretion. Seller shall
not be obligated to convey less than all of the Real Property
and, subject to the terms and conditions of this Agreement,
the entire Real Property shall be sold and purchased
simultaneously.
(2) Any amounts that are due, owing and unpaid
under the Facility Lease as of the Closing Date shall have
been paid to Seller by Lessee on or before the Closing Date.
(3) There shall be no writ, injunction, decree
or order of any nature issued by or pending before any court
or governmental agency directing that the transactions
contemplated by this Agreement not be consummated.
(4) Any applicable waiting period under the HSR
Act shall have been terminated or expired after the filing of
notification and report forms in accordance with subsection
11(b), with no action by any governmental authority having
been taken during such waiting period seeking to prevent or
materially modify the transaction contemplated hereunder.
The conditions set forth in this Section 5, together with any other conditions
to Closing set forth in this Agreement, are sometimes herein referred to
collectively as "Closing Conditions".
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6. Responsibility for Premises; Condemnation; Casualty Loss.
(a) Until Closing, and except as otherwise provided in
the Facility Lease, Seller shall have the full responsibility and the
entire liability for any and all damage or injury of any kind
whatsoever to the Premises and any and all persons (whether tenants,
employees or otherwise) injured at or from activities on the Premises,
in the same manner as if the parties had not entered into this
Agreement.
(b) If at any time prior to Closing Lessee learns that
the Premises (or any part thereof) are threatened with condemnation, or
that legal proceedings have been commenced under the power of eminent
domain, Lessee shall promptly notify Seller of such fact, in writing,
and furnish to Seller full copies of all pleadings, correspondence and
other documents and data pertaining thereto. If at any time prior to
Closing Seller learns that the Premises (or any part thereof) are
threatened with condemnation, or that legal proceedings have been
commenced under the power of eminent domain, Seller shall promptly
notify Purchaser of such fact, in writing, and furnish to Purchaser
full copies of all pleadings, correspondence and other documents and
data pertaining thereto. Purchaser shall have the option, which must be
exercised by it within ten (10) days after its receipt of written
notice from Seller of the threat or pendency of any such proceedings
and the aforesaid copies of documents and information, to terminate
this Agreement or to proceed with the Closing. If Purchaser fails to
give Seller written notice of its termination of this Agreement within
said ten day period, Purchaser shall be deemed to have elected to
proceed with the Closing. If Purchaser elects to terminate this
Agreement, the Earnest Money shall be paid or returned to Purchaser and
the parties shall have no further rights, duties or obligations
hereunder except as otherwise expressly provided in Sections 4 and 18.
If Purchaser elects to proceed with the Closing, it shall be obligated
to do so without a reduction in the amount of the Purchase Price
(except as otherwise expressly provided herein); however,
notwithstanding any provision of the Facility Lease that may be to the
contrary, at the Closing Purchaser shall be entitled to any and all
awards payable to Seller as a result of such condemnation or eminent
domain proceedings and, to the extent the same may be necessary or
appropriate, Seller shall assign to Purchaser Seller's rights to such
awards.
(c) If, prior to Closing, the Premises (or any part
thereof) are destroyed or substantially damaged, Seller shall promptly
give Purchaser written notice of such destruction or damage and
Purchaser shall have the option, which must be exercised by it within
ten (10) days after its receipt of such notice, to terminate this
Agreement or to proceed with the Closing. If Purchaser fails to give
Seller written notice of its termination of this Agreement within said
ten (10) day period, Purchaser shall be deemed to have elected to
proceed with the Closing. If Purchaser elects to terminate this
Agreement, the Earnest Money shall be paid or returned to Purchaser and
the parties shall have no further rights, duties or obligations
hereunder except as otherwise expressly provided in Sections 4 and 18.
If Purchaser elects to proceed with the Closing or if the damage to the
Premises is not substantial (as defined below), Purchaser shall be
obligated to proceed with the Closing without a reduction in the amount
of the Purchase Price
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(except as otherwise expressly provided herein); however,
notwithstanding any provision of the Facility Lease that may be to the
contrary, at the Closing Purchaser shall be entitled to any insurance
proceeds payable by insurance companies to Seller as a result of such
damage and, to the extent the same may be necessary or appropriate,
Seller shall assign to Purchaser Seller's rights to such proceeds.
(d) For the purposes of this Section 6, destruction or
damage to the Premises shall be deemed "substantial" only if the loss
in question is reasonably estimated by Purchaser to exceed $500,000.
7. GENERAL DISCLAIMER OF WARRANTIES; ENVIRONMENTAL PROTECTION.
(a) EXCEPT AS EXPRESSLY SET FORTH IN SUBSECTION 7(b) AND
SECTION 8, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EITHER EXPRESS OR IMPLIED OR STATUTORY, RELATING TO THE PREMISES OR ANY
PORTION THEREOF, OR RELATING TO THE CONDITION OF THE PREMISES. SELLER
MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSES IN RESPECT
OF THE PREMISES, AND THE SAME ARE SOLD IN AN "AS IS, WHERE IS"
CONDITION.
(b) Seller represents to Purchaser that Seller has not
received written notice of any violation by any owner or user of the
Premises of any applicable law, statute, regulation, rule, ordinance or
order with respect to environmental protection, and Purchaser agrees
that no other representations or warranties have been made by Seller
relating to environmental protection or the presence of hazardous
substances in or on the Premises, or that the condition or use of the
Premises is in compliance with applicable federal, state or local laws,
statutes, regulations, rules, ordinances or orders, building or zoning
ordinances or other similar legal requirements. For purposes hereof,
"hazardous substances" means asbestos, polychlorinated biphenyls,
petroleum, petroleum derivatives or by-products, other hydrocarbons,
urea formaldehyde and all other hazardous wastes, toxic substances and
related materials, including substances defined as "hazardous
substances" or "toxic substances" in the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986, as further
amended, 42 USC ss.9601, et seq., the Hazardous Materials
Transportation Act, as amended, 49 USC ss.6901 et seq., the Resource
Conservation and Recovery Act of 1976, as amended by the Solid and
Hazardous Waste Amendments of 1984, as further amended, 42 USC ss.6901,
et seq., the Toxic Substances Control Act, 15 USC ss.2601 et seq. and
similar statutes, rules and regulations enacted or promulgated by the
State of Arizona or any local governmental entity, as amended, relating
to the protection and preservation of the environment. Purchaser agrees
that Purchaser is not relying on any warranty or representation of
Seller or of any agent, employee or representative of Seller except as
specifically set forth herein, and Purchaser has determined or will
prior to Closing determine on Purchaser's own behalf the physical and
geological condition of the Premises and has satisfied itself or will
satisfy itself prior to Closing with respect to all environmental
matters relating to the Premises, and is
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accepting the Premises in its "AS IS" present condition, subject to all
deficiencies or other matters, whether known or unknown. Purchaser
further recognizes that Seller has had no obligation to conduct any
investigation whatsoever in connection with the conveyance of the
Premises to Purchaser other than to make arrangements for delivery of
the environmental report described in paragraph 4(a)(6). The agreements
expressed in this Section shall survive the Closing.
8. Representations and Warranties of Seller. As a material
inducement to Purchaser and Lessee to enter into this Agreement and to purchase
the Conveyed Assets or terminate the Facility Lease, as the case may be, as
provided herein, Seller makes the following representations and warranties to
Purchaser and Lessee, which representations and warranties are true as of the
date of this Agreement and, as a condition of Purchaser's and Lessee's
obligations to consummate the transactions contemplated hereunder, shall be true
and correct as of the Closing Date unless otherwise expressly provided herein;
provided, however, that, such representations and warranties shall be deemed
modified as of the Closing, without breach of the foregoing obligation of Seller
but without waiving the applicable Closing Conditions set forth in subsections
5(a) and (b), by Seller's delivery at Closing of a certification in
substantially the form attached hereto as Exhibit 8 and incorporated herein by
reference, reflecting any events or changes in facts or circumstances regarding
Seller's representations and warranties that have occurred after the date hereof
("Seller's Closing Certification"):
(a) Seller has not received written notice of any
condemnation or similar proceeding or action presently pending or under
consideration with respect to the Premises.
(b) Within the one (1) year period preceding the
Effective Date, Seller has not received written notice of any action,
suit or proceeding instituted by any person or entity against or
affecting the Premises before any federal, state, municipal or other
governmental authority.
(c) Seller has not received written notice that the
Premises are in violation of any federal, state, county or municipal
laws, ordinances, orders, regulations or requirements.
(d) Seller has made no written commitments to any
governmental authority, utility company, property owner's association
or other organization, group or individual, relating to the Premises,
that would impose an obligation upon Purchaser or its successors or
assigns to make any contribution or dedications of money or land or to
construct improvements, on or off the Premises; and Seller has received
no written notice that any governmental authority has imposed any
requirement that any user of the Premises pay, directly or indirectly,
any special fees, assessments or contributions or incur any expenses or
obligations with respect to the Premises or any use of the Premises or
any part thereof.
(e) There are no leases or tenancies affecting the
Premises to which Seller or any predecessor in interest to Seller is a
party other than the Lease and the Ground Lease and the respective
tenancies of Lessee and Ground Lessee thereunder. Neither Seller nor
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any agent or representative of Seller holds any security deposits or
other similar sums in connection with the Leases.
(f) Subject to compliance with applicable provisions of
the HSR Act and receipt of any required consent of GMAC pursuant to the
GMAC Deed of Trust, Seller has the legal right and all requisite power
and authority to enter into this Agreement and to complete the
transactions contemplated herein.
(g) The person executing this Agreement on behalf of
Seller is duly and validly empowered and authorized to execute and
deliver this Agreement on behalf of Seller and to bind Seller in
accordance with the provisions of this Agreement.
9. Representations and Warranties of Purchaser. As a material
inducement to Seller to enter into this Agreement and to sell and convey the
Conveyed Assets and terminate the Facility Lease, as the case may be, as
provided herein, Purchaser makes the following representations and warranties to
Seller, which representations and warranties are true as of the date of this
Agreement and, as a condition of Seller's obligations to consummate the
transactions contemplated hereunder, shall be true and correct as of the Closing
Date unless otherwise expressly provided herein; provided, however, that, such
representations and warranties shall be deemed modified as of the Closing,
without breach of the foregoing obligation of Purchaser but without waiving the
applicable Closing Condition set forth in subsection 5(c), by Purchaser's
delivery at Closing of a certification in substantially the form attached hereto
as Exhibit 9 and incorporated herein by reference, reflecting any events or
changes in facts or circumstances regarding Purchaser's representations and
warranties that have occurred after the date hereof ("Purchaser's Closing
Certification"):
(a) Subject to compliance with applicable
provisions of the HSR Act and receipt of the Iasis Credit
Facility Consents, Purchaser has the legal right and all
requisite power and authority to enter into this Agreement and
to complete the transactions contemplated herein.
(b) The person executing this Agreement on
behalf of Purchaser is duly and validly empowered and
authorized to execute and deliver this Agreement on behalf of
Purchaser and to bind Purchaser in accordance with the
provisions of this Agreement.
10. Representations and Warranties of Lessee. As a material
inducement to Seller to enter into this Agreement and to sell and convey the
Conveyed Assets and terminate the Facility Lease, as the case may be, as
provided herein, Lessee makes the following representations and warranties to
Seller, which representations and warranties are true as of the date of this
Agreement and, as a condition of Seller's obligations to consummate the
transactions contemplated hereunder, shall be true and correct as of the Closing
Date unless otherwise expressly provided herein; provided, however, that, such
representations and warranties shall be deemed modified as of the Closing,
without breach of the foregoing obligation of Lessee but without waiving the
applicable Closing Condition set forth in subsection 5(c), by Lessee's delivery
at Closing of a certification in substantially the form attached hereto as
Exhibit 10 and incorporated herein by reference, reflecting any events or
changes in facts or circumstances
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regarding Lessee's representations and warranties that have occurred after the
date hereof ("Lessee's Closing Certification"):
(a) Lessee is the current holder of all of the lessee's
right, title and interest under the Facility Lease, and Lessee has not
assigned, hypothecated, pledged, sublet or otherwise transferred all or
any portion of its interest under the Facility Lease except in
connection with the transactions that are the subject of the Credit
Agreement.
(b) Lessee has not heretofore exercised the Purchase
Option (as defined in Article 19 of the Facility Lease) and, except as
provided in paragraph 12(d), will not do so while this Agreement
remains in effect.
(c) Subject to compliance with applicable provisions of
the HSR Act and receipt of the Iasis Credit Facility Consents, Lessee
has the legal right and all requisite power and authority to enter into
this Agreement and to complete the transactions contemplated herein.
(d) The person executing this Agreement on behalf of
Lessee is duly and validly empowered and authorized to execute and
deliver this Agreement on behalf of Lessee and to bind Lessee in
accordance with the provisions of this Agreement.
11. Certain Covenants and Agreements.
(a) Pursuant to Section 19.3 of the Facility Lease,
Lessee has a Right of First Refusal (as defined in the Facility Lease)
with respect to the purchase of the Premises. Lessee hereby waives such
Right of First Refusal as the same applies to the transaction
contemplated by this Agreement, but no further or otherwise.
(b) Within thirty (30) days after the Effective Date,
each of Seller and Purchaser shall execute and file a notification and
report form as and to the extent required under the HSR Act. Seller and
Purchaser will take all actions reasonably required to seek early
termination of the waiting period regarding these filings. Purchaser
will pay the filing fees in connection with the filing of notification
and report forms under the HSR Act.
(c) Until the Closing, the payment of the Purchase Price
and the execution and delivery of the Facility Lease Termination, the
terms and provisions of the Facility Lease shall remain in full force
and effect, subject to the provisions hereof, and Lessee shall continue
to perform faithfully all of its obligations under the Facility Lease.
(d) All press releases, public filings and other
publicity concerning the transaction contemplated hereby will be
subject to review and approval by Seller, Purchaser and Lessee, such
approval not to be unreasonably withheld or delayed. Such approval
shall not be required if the person issuing any such publicity
reasonably believes it to be necessary for compliance with requirements
of law, but such person shall provide the other parties with reasonable
notice and an opportunity to review the same before
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release to the extent practicable. Seller, Purchaser and Lessee hereby
agree to keep the terms and conditions of this Agreement confidential
except to the extent that disclosure is required by law; provided,
however, that the parties may disclose this Agreement to their
respective lenders, the professional advisors and consultants who are
advising them or providing necessary professional services in
connection with the transactions contemplated hereby, Escrow Agent, the
Title Company and any governmental authorities or other third parties
as may be necessary in order to obtain the Iasis Credit Facility
Consent and any required consent of GMAC pursuant to the GMAC Deed of
Trust.
(e) If by the deadline for Closing Seller is unable to
convey title to the Premises, subject only to Permitted Exceptions, or
any other Closing Condition in favor of Purchaser or Lessee that is
reasonably susceptible of satisfaction within the thirty (30) day
period described below remains unsatisfied, Purchaser shall so notify
Seller on or prior to the Closing Date, and Seller may (but shall not
be obligated to) elect, by written notice to Purchaser and Lessee, to
extend the Closing Date for a period not to exceed thirty (30) days.
During such extended period of time, Seller shall use reasonable
efforts to remove any Unauthorized Exceptions and the parties hereto
shall use reasonable efforts to cause the unsatisfied Closing
Condition(s) to be satisfied.
At either the originally specified or any extended time for
performance, Purchaser may in its sole discretion elect to waive any
outstanding Unauthorized Exceptions and accept such title to the
Premises as Seller then is able to convey (in which event Seller shall
convey such title), or Purchaser and Lessee may in their sole
discretion elect to waive any other unsatisfied Closing Conditions, all
without adjustment of the Purchase Price except as expressly set forth
herein.
12. Closing.
(a) Subject to all the terms and conditions of this
Agreement, the Closing shall take place at 10:00 a.m. (Eastern time) on
October 15, 2001 at the offices of Nutter, McClennen & Fish, LLP, One
International Place, Boston, Massachusetts, or at such other time and
place as shall be mutually agreed upon in writing by Seller, Purchaser
and Lessee in writing (the date of the Closing being referred to herein
as the "Closing Date"). The parties acknowledge their willing to
consummate the Closing by using the Title Company as escrow agent for
the delivery and release of the required documents by mail, courier
service or other means, subject to such escrow arrangements as are
reasonably acceptable to the parties. Possession of the Premises shall
be delivered on the Closing Date subject to the rights of parties in
possession pursuant to the Facility Lease and the Ground Lease (and
persons claiming by, through or under them) and the Permitted
Exceptions.
(b) At the Closing, Seller agrees to convey fee simple
title to the Real Property to Purchaser, subject only to the Permitted
Exceptions, by a special warranty deed in form reasonably satisfactory
to Seller and Purchaser (the "Deed").
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(c) At the Closing, the Title Company shall delete from
the Title Commitment all exceptions to title disclosed thereby except
the Permitted Exceptions, and shall agree to issue and deliver to
Purchaser a policy of title insurance conforming to the updated Title
Commitment (the "Owner's Title Policy") as soon as is practicable
following the Closing. Purchaser shall pay the premium for the Owner's
Title Policy.
(d) Seller, Purchaser and Lessee hereby acknowledge and
agree that (a) at Closing, the Purchase Option shall be deemed to have
been modified to conform to the provisions of this Agreement, and (b)
the purchase of the Conveyed Assets by Purchaser pursuant to this
Agreement shall constitute a purchase of the Real Property pursuant to
the Purchase Option.
13. Seller's Obligations at Closing. At (or prior to) Closing, and
subject to the terms, conditions and provisions hereof and the performance by
Purchaser of its obligations as set forth above, Seller shall:
(a) Execute, acknowledge and deliver to Purchaser the
Deed.
(b) Deliver to Purchaser originals (or if not available,
copies) of the Facility Lease and the Ground Lease.
(c) Execute and deliver to Purchaser an assignment and
assumption of the Ground Lease, in substantially the form attached
hereto as Exhibit 13(c) (the "Assignment of Ground Lease").
(d) Execute and deliver to Purchaser an instrument, in
substantially the form attached hereto as Exhibit 13(d), terminating
the Facility Lease (the "Facility Lease Termination").
(e) Execute and deliver to Purchaser Seller's Closing
Certification.
(f) Execute and deliver a settlement statement listing
all charges and credits for the account of Seller in connection with
the Closing.
(g) Deliver to Purchaser the affidavit required pursuant
to Section 1445 of the Internal Revenue Code and the regulations
thereunder stating, under the penalties of perjury, (1) that Seller is
not a foreign entity, (2) the U.S. taxpayer identification number of
Seller, and (3) such other information as may be required by the
Internal Revenue Code or the regulations thereunder.
(h) Use reasonable efforts to deliver to Purchaser an
estoppel certificate, in form and content reasonably satisfactory to
Purchaser, executed by the tenant under the Ground Lease, certifying as
to such matters involving the Ground Lease as Purchaser reasonably may
require (actual delivery of the estoppel certificate is not a Closing
Condition, provided Seller has used reasonable efforts to deliver
same).
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(i) If requested by Purchaser, instruct Escrow Agent to
pay or return the Earnest Money to Purchaser.
(j) Deliver to Purchaser copies of resolutions of the
board of directors or other managers of Seller authorizing the
execution and delivery of this Agreement, the Deed, the Assignment of
Ground Lease, the Facility Lease Termination, Seller's Closing
Certification and the other documents required to be executed and
delivered by Seller hereunder, a certificate of the secretary of
Seller, copies of the organizational documents of Seller, a certificate
of existence/good standing for Seller and any other documents
reasonably requested by Seller or the Title Company to verify the power
and authority of Seller to engage in the transactions contemplated
hereby.
14. Purchaser's Obligations at Closing. At (or prior to) Closing,
and subject to the terms, conditions and provisions hereof and the performance
by Seller of its obligations as set forth above, Purchaser shall:
(a) Pay the Purchase Price to Seller.
(b) Execute and deliver to Seller the Assignment of
Ground Lease.
(c) Execute and deliver to Seller the Facility Lease
Termination.
(d) Execute and deliver to Seller Purchaser's Closing
Certification.
(e) Execute and deliver a settlement statement listing
all charges and credits for the account of Purchaser in connection with
the Closing.
(f) Deliver to Seller copies of resolutions of the board
of directors or other managers of Purchaser (or its general partner)
authorizing the execution and delivery of this Agreement, the
Assignment of Ground Lease, the Facility Lease Termination, Purchaser's
Closing Certification and the other documents required to be executed
and delivered by Purchaser hereunder, a certificate of the secretary of
Purchaser, copies of the organizational documents of Purchaser, a
certificate of existence/good standing for Purchaser and any other
documents reasonably requested by Seller to verify the power and
authority of Purchaser to engage in the transactions contemplated
hereby.
15. Lessee's Obligations at Closing. At (or prior to) Closing, and
subject to the terms, conditions and provisions hereof and the performance by
Seller of its obligations as set forth above, Lessee shall:
(a) Execute and deliver to Seller the Facility Lease
Termination.
(b) Execute and deliver to Seller Lessee's Closing
Certification.
(c) Deliver to Seller copies of resolutions of the board
of directors or other managers of Lessee (or its general partner)
authorizing the execution and delivery of this
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Agreement, the Facility Lease Termination, Lessee's Closing
Certification and the other documents required to be executed and
delivered by Lessee hereunder, a certificate of the secretary of
Lessee, copies of the organizational documents of Lessee, a certificate
of existence/good standing for Lessee and any other documents
reasonably requested by Seller to verify the power and authority of
Lessee to engage in the transactions contemplated hereby.
16. Closing Costs. The following costs and expenses shall be paid
by the parties as follows in connection with the Closing.
(a) Seller shall pay:
(1) documentary stamps and intangibles taxes, if
by local custom such items are typically paid by a seller,
(2) one-half (1/2) of any fees and charges of
Escrow Agent, and
(3) all costs, expenses and charges associated
with the removal of Unauthorized Exceptions (excluding amounts
required to discharge encumbrances that are the responsibility
of the tenant under the Facility Lease).
(b) Purchaser shall pay:
(1) the premiums for the Owner's Title Policy,
(2) the charges for any new or updated Survey
obtained by Purchaser, and
(3) one-half (1/2) of any fees and charges of
Escrow Agent.
(c) Costs and expenses of Closing not specified above
shall be allocated between the parties in accordance with local custom.
(d) Each party shall pay the fees and expenses of its own
counsel.
17. Prorations.
(a) All prepaid rents with respect to the Premises shall
be prorated between Seller and Purchaser as of the Closing Date.
(b) Notwithstanding anything to the contrary set forth in
the Facility Lease, at the Closing, Lessee shall also pay to Seller an
amount equal to Seller's reasonable estimate of the Additional Rent (as
defined in the Facility Lease) due for the quarter in which the Closing
occurs (the "Closing Quarter"). Within ninety (90) days after the
Closing Date, Lessee shall deliver to Seller a certificate reasonably
acceptable to Seller and certified by the chief financial officer of
Lessee, setting forth the Gross Revenues (as
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defined in the Facility Lease) for the period from the commencement of
the Closing Quarter through the Closing Date. A final reconciliation of
the Additional Rent due for the Closing Quarter shall be made based
upon such certificate. If, as a result of such reconciliation, (i) the
Additional Rent determined to be due for the Closing Quarter exceeds
the amount paid by Lessee at the Closing, Lessee will pay such
difference to Seller within ten (10) days after such final
reconciliation or (ii) the Additional Rent determined to be due for the
Closing Quarter is less than the amount paid by Lessee at the Closing,
Seller agrees to refund such overpayment to Lessee within ten (10) days
after such final reconciliation.
(c) All items that are required to be prorated as of the
Closing Date and that are not subject to an exact determination shall
be estimated by the parties. When any item so estimated is capable of
exact determination after the Closing, the party in possession of the
facts necessary to make the determination shall send the other party a
detailed statement of the exact determination so made, and the parties
shall adjust the prior estimate within ten (10) days after both parties
have received said statement. Either party will be entitled, at its own
expense, to audit the records supporting the determination made. All
prorations shall be made as of the Closing Date, with Seller entitled
to all rents and other income on the Closing Date and to have
responsibility for all expenses through 11:59 p.m. on the Closing Date,
and Purchaser entitled to all rents and income and to be responsible
for all expenses thereafter. The cash payment due to Seller at Closing
shall be increased or decreased by proration of the foregoing items.
(d) The provisions of this Section 17 shall survive the
Closing.
18. Brokerage. Seller and Purchaser represent and warrant to each
other than they have not engaged the services of any broker in connection with
the sale and purchase contemplated by this Agreement. Seller and Purchaser each
hereby agree to indemnify and hold the other harmless from any claim (including
reasonable expenses incurred in defending such claim, including attorneys' fees
and other expenses) made by any broker or sales agent or similar party for a
commission claimed to be due under the terms of any agreement entered into by
the indemnifying party or otherwise claimed to be due as a result of any actions
taken by the indemnifying party. These indemnities shall survive the Closing or
any termination of this Agreement.
19. Merger; Survival; Seller's Knowledge.
(a) All prior understandings and agreements of the
parties with respect to the subject matter of this Agreement are merged
in this Agreement, which alone fully and completely expresses their
agreement with respect to the sale and purchase of the Conveyed Assets.
(b) All representations contained herein, and any other
provisions hereof that by their terms provide that they survive the
Closing or any termination of this Agreement, including the agreements
set forth in Sections 4, 7, 17 and 18 and the representations and
warranties of Seller set forth in Section 8, of Purchaser set forth in
Section 9 and of
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Lessee set forth in Section 10, shall survive the Closing for a period
of twenty-four (24) months and until the final resolution of any claim
for breach asserted within said twenty-four (24) month period.
Notwithstanding the foregoing, no claim for breach shall be asserted
against any party after the Closing unless and until such time as the
aggregate amount of all such post-Closing claims against such party
equals or exceeds $100,000, and in no event will the aggregate
liability of any party for breach of its representations and warranties
herein exceed $3,000,000.
(c) It is understood and agreed that to the extent that
any representation or warranty of Seller herein is stated to be based
on Seller's knowledge, such knowledge is limited to the knowledge of
Michael Bushee and Deborah Pfaff without any independent investigation
or inquiry.
20. Default. In the event that:
(a) Seller fails to consummate the transactions
contemplated herein for any reason, except for Purchaser's default or
the nonoccurrence of any condition to Seller's obligations, Purchaser
may either (1) enforce this Agreement through an action for a decree of
specific performance; or (2) cancel and terminate this Agreement, in
which event Purchaser shall be immediately entitled to the payment or
return of the Earnest Money and the parties shall have no further
rights, duties or obligations hereunder except as otherwise expressly
provided in Sections 4 and 18.
(b) Purchaser fails to consummate the transactions
contemplated herein for any reason, except for Seller's default or
nonoccurrence of any condition to Purchaser's obligations, Seller may
cancel and terminate this Agreement and retain the Earnest Money as
liquidated damages and not as a penalty, and the parties shall have no
further rights, duties or obligations hereunder except as otherwise
expressly provided in Sections 4 and 18. The parties acknowledge and
agree that Seller's right hereunder to retain the Earnest Money as
liquidated damages upon a default by Purchaser reflects the parties'
mutual agreement that such amount represents a fair and reasonable
measure of the damages that would be suffered by Seller for removing
the Premises from the marketplace and carrying the Premises during the
pendency of this Agreement, it being further agreed that the exact
amount of such damages are incapable of ascertainment with mathematical
precision and that the parties hereto are attempting and intending by
such provision to establish a measure of damages that is fair and
reasonable under the circumstances.
Any defaulting party shall bear the expense of enforcement of this
Agreement, including court costs and reasonable attorney's fees.
21. Miscellaneous. The following general provisions govern this
Agreement:
(a) Time of Essence. Time is of the essence of this
Agreement and each provision hereof.
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(b) Governing Law. This Agreement is made and executed
under and in all respects to be governed and construed by the laws of
the State of Arizona.
(c) Notices. Any notice given to Seller or Purchaser
pursuant to this Agreement shall be in writing and all notices and
deliveries hereunder shall be deemed duly given or made upon receipt by
facsimile transmission, or three (3) days after the date of mailing if
sent by registered or certified mail, return receipt requested, or on
the date delivered to a nationally recognized overnight delivery
service or messenger, addressed as follows:
If to Seller, addressed to:
Meditrust Healthcare Corporation
c/o La Quinta Properties, Inc.
197 First Avenue
Needham, MA 02494
Attention: Michael F. Bushee
Facsimile No. (781) 433-1290
with a copy to:
Kathryn A. Arnone, Esq.
Meditrust Healthcare Corporation
c/o La Quinta Properties, Inc.
197 First Avenue
Needham, MA 02494
Facsimile No. (781) 433-1235
and to:
Marianne Ajemian, Esq.
Nutter, McClennen & Fish, LLP
One International Place
Boston, MA 02110-2699
Facsimile No. (617) 973-9748
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If to Purchaser, addressed to:
IASIS Healthcare Holdings, Inc.
c/o IASIS Healthcare Corporation
Suite A200, Dover Centre
113 Seaboard Lane
Franklin, TN 37067
Attention: General Counsel
Facsimile No. (615) 846-3006
with a copy to:
Bass, Berry & Sims PLC
315 Deaderick Street, Suite 2700
Nashville, TN 37238-3001
Attention: James S. Tate, Jr.
Facsimile No. (615) 742-6293
If to Lessee, addressed to:
St. Luke's Medical Center, LP
c/o IASIS Healthcare Corporation
Suite A200, Dover Centre
113 Seaboard Lane
Franklin, TN 37067
Attention: General Counsel
Facsimile No. (615) 846-3006
with a copy to:
Bass, Berry & Sims PLC
315 Deaderick Street, Suite 2700
Nashville, TN 37238-3001
Attention: James S. Tate, Jr.
Facsimile No. (615) 742-6293
Any party, by notice given as aforesaid, may change the
address to which subsequent notices are to be sent to such party.
(d) Waiver of Rights. Purchaser or Seller may waive any
right conferred upon such party by this Agreement. Any such waiver may
be made by, and only by, giving the other party written notice
specifically describing the right waived.
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(e) Amendment. This Agreement shall be amended only by a
written instrument signed by the party to be charged therewith.
(f) Construction. The captions and headings of the
various sections and paragraphs of this Agreement are for convenience
only and are not to be construed as defining or as limiting in any way
the scope or intent of the provisions hereof. Wherever the context
requires or permits, the singular shall include the plural, the plural
shall include the singular and the masculine, feminine and neuter shall
be freely interchangeable. When used herein, (1) "include", "includes"
and "including" shall be deemed to be followed by "without limitation"
regardless of whether such words or words of like import in fact follow
same, and (2) unless the context clearly indicates otherwise, the
disjunctive "or" shall include the conjunctive "and". All references
herein to the preamble, the recitals or sections, paragraphs,
subparagraphs or exhibits are to the preamble, recitals, sections,
paragraphs, subparagraphs and exhibits of or to this Agreement unless
otherwise specified. The words "hereof", "herein" and "hereunder" and
words of similar import, when used in this Agreement, refer to this
Agreement as a whole and not to any particular provision of this
Agreement. This Agreement shall not be construed more strictly against
one party than against the other by virtue of the fact that it may have
been drafted or prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed
substantially and materially to the preparation of this Agreement.
(g) Documentary References. Any reference herein to any
instrument, document or agreement, by whatever terminology used, shall
be deemed to include any and all past, present or future amendments,
restatements, modifications, supplements, extensions, renewals or
replacements thereof, as the context may require.
(h) Assignment; Successors and Assigns. Seller may assign
its rights and delegate its duties under this Agreement, in whole or in
part, to any entity controlled by, controlling or under common control
with Seller; provided, however, that Seller shall not thereby be
released for any of its obligations hereunder. Purchaser may assign its
rights and delegate its duties under this Agreement, in whole or in
part, to any entity controlled by, controlling or under common control
with Purchaser; provided, however, that Purchaser shall not thereby be
released for any of its obligations hereunder. This Agreement shall be
binding upon and inure to the benefit of the successors and assigns of
each of the parties hereto.
(i) Other Parties. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties
hereto and their respective legal representatives, successors,
successors-in-title and permitted assigns. No person other than
Purchaser, Seller, Lessee and Escrow Agent may rely hereon or derive
any benefit hereby as a third party beneficiary or otherwise.
(j) Severability. If for any reason any provision of this
Agreement, or the application thereof to a particular person or
circumstance, shall be declared void or
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unenforceable by any court of competent jurisdiction, such invalidity
shall only affect such provision or application and the balance of this
Agreement or the application of such provision to other persons or
circumstances shall remain in full force and effect and shall be
binding upon the parties hereto.
(k) Counterparts. This Agreement may be executed in
multiple counterparts or copies, each of which shall be deemed an
original hereof for all purposes. One or more counterparts or copies of
this Agreement may be executed by one or more of the parties hereto,
and different counterparts or copies may be executed by one or more of
the other parties. Each counterpart or copy hereof executed by any
party hereto shall be binding upon the party executing same even though
other parties may execute one or more different counterparts or copies,
and all counterparts or copies hereof so executed shall constitute but
one and the same agreement. Each party hereto, by execution of one or
more counterparts or copies hereof, expressly authorizes and directs
any other party hereto to detach the signature pages and any
corresponding acknowledgment, attestation, witness or similar pages
relating thereto from any such counterpart or copy hereof executed by
the authorizing party and affix same to one or more other identical
counterparts or copies hereof so that upon execution of multiple
counterparts or copies hereof by all parties hereto, there shall be one
or more counterparts or copies hereof to which is (are) attached
signature pages containing signatures of all parties hereto and any
corresponding acknowledgment, attestation, witness or similar pages
relating thereto.
(l) Business Days. When used herein, "business day"
refers to any day other than a day on which commercial banks in
Arizona, Massachusetts, New York or Tennessee are required or permitted
to close.
(m) Filing. Neither this Agreement nor any notice hereof
shall be filed in any public records.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates set forth beneath their respective signatures hereto.
SELLER:
MEDITRUST HEALTHCARE CORPORATION
BY: /s/ DEBORA A. PFAFF
-------------------------------------
Name: DEBORA A. PFAFF
--------------------------------
Title: VICE PRESIDENT
-------------------------------
Date: August 31, 2001
PURCHASER:
IASIS HEALTHCARE HOLDINGS, INC.
BY: /s/ W. CARL WHITMER
-------------------------------------
Name: W. CARL WHITMER
--------------------------------
Title: VICE PRESIDENT AND TREASURER
-------------------------------
Date: August 31, 2001
LESSEE:
ST. LUKE'S MEDICAL CENTER, LP
BY: /s/ W. CARL WHITMER
-------------------------------------
Name: W. CARL WHITMER
--------------------------------
Title: VICE PRESIDENT AND TREASURER
-------------------------------
Date: August 31, 2001
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The undersigned hereby agrees to act as Escrow Agent subject to and upon the
terms and conditions hereinabove set forth.
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
BY: /s/ JANINE F. HEINER
-------------------------------------
Name: JANINE F. HEINER
--------------------------------
Title: COMMERCIAL CLOSER
-------------------------------
Date: August 31, 2001
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