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JV333508 and 335195
#4630523.6
REAL ESTATE PURCHASE AND SALE AGREEMENT
BETWEEN
BCC CANCER CENTER VENTURE, L.P.,
A DELAWARE LIMITED PARTNERSHIP, AS SELLER
AND
DOC-3410 WORTH ST. MOB, LLC, A WISCONSIN
LIMITED LIABILITY COMPANY, AS BUYER
FOR
THE BAYLOR CHARLES A. SAMMONS CANCER CENTER
3410 WORTH STREET
DALLAS, TEXAS
Exhibit 10.1
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REAL ESTATE PURCHASE AND SALE AGREEMENT
Table of Contents
ARTICLE 1 PURCHASE AND SALE
ARTICLE 2 BASIC TERMS
ARTICLE 3 REPRESENTATIONS, WARRANTIES, AND COVENANTS
3.1 Representations, Warranties, and Covenants by Seller
3.2 No Other Representations and Warranties by Seller
3.3 Representations, Warranties, and Covenants by Buyer
3.4 Buyer's Reliance on Own Investigation; "AS-IS" Sale
ARTICLE 4 THE TRANSACTION
4.1 Escrow
4.2 Purchase Price
4.2.1 Earnest Money
4.2.2 Retention and Disbursement of Earnest Money
4.2.3 Cash at Closing
4.2.4 Independent Consideration
4.3 Conveyance
ARTICLE 5 TITLE AND SURVEY
5.1 Title Commitment
5.2 Survey
ARTICLE 6 CONDITION OF THE PROPERTY
6.1 Inspections
6.1.1 Inspection of Property
6.2 Environmental Matters
6.2.1 Seller's Environmental Investigation
6.3 Approval and Termination
6.3.1 Buyer's Right to Terminate
6.3.2 Seller's Right to Terminate
6.4 Service Contracts
6.5 Management of the Property
6.6 Leasing
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ARTICLE 7 CLOSING
7.1 Buyer's Conditions Precedent to Closing
7.2 Seller's Conditions Precedent to Closing
7.3 Deposits in Escrow
7.3.1 Seller's Deposits
7.3.2 Buyer's Deposits
7.3.3 Joint Deposits
7.3.4 Other Documents
7.4 Costs
7.5 Prorations
7.5.1 Generally
7.5.2 Like-Kind Exchange (Proration)
7.6 Insurance
7.7 Close of Escrow
7.8 Possession
7.9 Recorded Instruments
7.10 Tenant Notices
ARTICLE 8 CONDEMNATION AND CASUALTY
ARTICLE 9 NOTICES
ARTICLE 10 SUCCESSORS AND ASSIGNS
ARTICLE 11 BROKERS
ARTICLE 12 COVENANT NOT TO RECORD
ARTICLE 13 DEFAULT
13.1 Default by Buyer
13.2 Default by Seller
ARTICLE 14 NON-DEFAULT TERMINATION
ARTICLE 15 INDEMNITIES
15.1 Seller Indemnity
15.2 Buyer Indemnity
15.3 Release
15.4 Survival
ARTICLE 16 MISCELLANEOUS
16.1 Survival of Representations, Covenants, and Obligations
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16.2 Attorneys' Fees
16.3 Disclosure
16.4 Captions
16.5 Waiver
16.6 Time
16.7 Controlling Law
16.8 Severability
16.9 Construction
16.10 Like-Kind Exchange
16.10.1 Assignment of Rights to Qualified Intermediary
16.10.2 Reassignment
16.11 Limitations on Liability
16.12 Execution
16.13 Amendments
16.14 Entire Agreement
RECEIPT BY ESCROW HOLDER - EARNEST MONEY
Exhibits
Exhibit A Special Warranty Deed
Exhibit B Assignment and Assumption of Leases
Exhibit C List of Existing Environmental Reports
Exhibit D Exceptions to Representations and Warranties
Exhibit E Certificate of Non-Foreign Status
Exhibit F Certificate of Assistant Secretary
Exhibit G Bill of Sale
Exhibit H Seller's Certificate
Exhibit I Buyer's Certificate
Exhibit J Assignment and Assumption of Ground Lease
Exhibit K Assignment and Assumption of Service Contracts and Other Obligations
Exhibit L Intentionally Deleted
Exhibit M Affidavits as to Debts, Liens, Parties in Possession, and Gap Coverage
Exhibit N Tenant Notice Letters
Exhibit O Assignment and Assumption of Real Estate Purchase and Sale Agreement
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement") is made
and entered into as of the Effective Date (as defined below) between BCC CANCER CENTER
VENTURE, L.P., a Delaware limited partnership (hereinafter referred to as "Seller"), and DOC-
3410 Worth St. MOB, LLC, a Wisconsin limited liability company (hereinafter referred to as
"Buyer").
RECITALS
A. Seller is the owner of The Baylor Charles A. Sammons Cancer Center (as more
specifically defined in Article 2 hereof, the "Property").
B. Seller desires to sell the Property to Buyer and Buyer desires to purchase the
Property from Seller.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto intending to be and being legally bound hereby, agree as
follows:
ARTICLE 1
PURCHASE AND SALE
Subject to the terms and conditions contained herein, Buyer agrees to purchase from
Seller, and Seller agrees to sell to Buyer, the Property (as defined below), including all of Seller's
right, title, and interest in and to that certain property commonly known as The Baylor Charles
A. Sammons Cancer Center located at 3410 Worth Street, in the City of Dallas, County of
Dallas, State of Texas.
ARTICLE 2
BASIC TERMS
As used herein, the following Basic Terms are hereby defined to mean:
Buyer's Address for Notice DOC-3410 Worth St. MOB, LLC, a Wisconsin
limited liability company
c/o Physicians Realty Trust
309 N. Water Street, Suite 500
Milwaukee, WI 53202
Buyer's Taxpayer
Identification Number 82-1912078
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Closing Date June 30, 2017, or such later date as postponed by
the terms of Subsection 5.3(a).
Earnest Money Three Million Dollars ($3,000,000.00)
Effective Date June 27, 2017.
Escrow Holder First American Title Insurance Company
30 N. LaSalle Street, Suite 2700
Chicago, IL 60602
Attn: Deanna Wilkie
Phone: 312-917-7238
E-mail: dawilkie@firstam.com
Involved Seller Representative(s) Philip Natkins and Paul J. Hanson, employees of
(re: Representations, Northwestern Mutual Investment Management
Warranties, and Covenants by Seller) Company, LLC
Long-Term Service Contract(s) See Schedule 2 to Exhibit K attached hereto
Materiality Limit
(re: Casualty and Condemnation) Fourteen Million Five Hundred and 00/100 Dollars
($14,500, 000.00)
Property Seller's fee simple right, title and interest in and to
the land described in Schedule 1 to Exhibit A
attached hereto as well as Seller's leasehold interest
under that certain Ground Lease by and between
Baylor Health Care System, as Landlord and BCC
Cancer Center Venture, L.P., as Tenant, dated April
23, 2009, together with all rights, privileges, and
easements appurtenant to the land (hereinafter
referred to as the "Land"), together with Seller's
right, title and interest in and to the following:
(a) all buildings, improvements, and structures
located on the Land (hereinafter referred to as the
"Improvements" and, together with the Land, the
"Real Property"); (b) all personal property owned
by Seller which is used in the operation of the Real
Property and located thereon, including all fixtures,
appliances, furniture, furnishings, equipment,
supplies, signage and lighting systems, but
excluding all software, computers and
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computer-related equipment in the property
management office located on the Property
(hereinafter referred to as the "Personal Property");
(c) any and all Tenant Leases (as defined below),
including those agreements entered into after the
Effective Date pursuant to Section 6.7 hereof; (d)
any and all Service Contracts (as defined below)
which are not terminated effective prior to the
Closing Date pursuant to Section 6.5 hereof; (e)
Long-Term Service Contracts; and (f) all rights, if
any, Seller may have to use the name The Baylor
Charles A. Sammons Cancer Center, as it relates to
the operation of the Real Property.
Purchase Price Two Hundred Ninety Million and 00/100 Dollars
($290,000,000.00)
Security Deposits All cash and non-cash security deposits held be
seller pursuant to the Tenant Leases, to the extent
unapplied by Seller.
Seller's Address for Notice BCC Cancer Center Venture, L.P.
c/o Northwestern Mutual Investment Management
Company, LLC
720 E. Wisconsin Avenue, N16NW
Milwaukee, WI 53202
Attn: Matt Carroll
Telephone: 414-665-3525
E-Mail: mattcarroll@northwesternmutual.com
with copies to: BCC Cancer Center Venture, L.P.
c/o Northwestern Mutual Investment Management
Company, LLC
720 E. Wisconsin Avenue, N16NW
Milwaukee, WI 53202
Attn: Phil Natkins
Telephone: 414-665-1075
E-Mail: philipnatkins@northwesternmutual.com
The Northwestern Mutual Life
Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Kathleen Moran
Telephone: 414-665-4628
E-Mail: kathleenmoran@northwesternmutual.com
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Service Contracts Any and all contracts and service agreements (other
than Long-Term Service Contracts, if any, which
are excluded from this term) for the provision of
labor, services, materials or supplies to the Real
Property to which Seller is a party and under which
Seller is currently paying for services rendered in
connection therewith, together with any and all
renewals, supplements, amendments and
modifications thereof that are now or hereafter
entered into, except for the existing property
management agreement which shall be terminated
at Closing (defined in Section 7.7 hereof) and is
excluded from this definition.
Tenant Leases All leases (including amendments, renewals,
modifications and supplements thereto) for space in
the Improvements. Tenant Leases do not include
subleases, or similar occupancy agreements, if any,
entered into by tenants.
Title Insurer First American Title Insurance Company
30 N. LaSalle Street, Suite 2700
Chicago, IL 60602
Attn: Pamela Sullivan
Phone: 312-917-7241
E-mail: pksullivan@firstam.com
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Representations, Warranties and Covenants by Seller.
(a) Subject to the limitations set forth in Sections 3.2 and 15.1 hereof, Seller hereby
represents and warrants as of the Effective Date, that:
(i) Seller has the full legal power, authority, and right to execute, deliver, and
perform its obligations under this Agreement, and Seller's performance hereunder
has been duly authorized by all requisite action on the part of Seller and no
remaining corporate action is required to make this Agreement binding on Seller.
(ii) There are no rights of first offer, rights of first refusal or purchase options
encumbering Seller and/or the Property, except for that certain right of first
refusal of Baylor Health Care System under the Ground Lease for which Seller
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shall obtain a written waiver prior to the Closing Date.
(iii) There are no employees of Seller working at the Property.
(iv) Neither Seller, nor any person or entity owning (directly or indirectly) a ten
percent (10%) or greater ownership interest in Seller: (i) is now or shall become,
a person or entity with whom Buyer is restricted from doing business with under
regulations of the Office of Foreign Assets Control ("OFAC") of the Department
of the Treasury (including, but not limited to, those names on OFAC's Specially
Designated Nationals and Blocked Person list) or under any statute, executive
order (including, but not limited to, the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism), or other governmental action: (ii) is
now or shall become, a person or entity with whom Buyer is restricted from doing
business with under the International Money Laundering Abatement and
Financial Anti-Terrorism Act of 2001, or the regulations or orders thereunder:
and (iii) is not knowingly engaged in, and shall not engage in, any dealings or
transaction, or be otherwise associated with such persons or entities described in
(i) and (ii) above.
(b) Subject to Seller's Actual Knowledge (as defined below), the limitations set forth
in Sections 3.2 and 15.1 hereof and except as set forth in Exhibit D attached
hereto, Seller hereby represents and warrants as of the Effective Date that:
(i) Seller has received no written notice, not subsequently cured, from any
governmental entity citing Seller for a violation of any law, ordinance,
order, or regulation which is applicable to the present use and occupancy
of the Property.
(ii) The list of Tenant Leases attached hereto and incorporated herein as
Schedule 2 to Exhibit B is true, correct, and complete as of the date
specified thereon (to be updated as of the Closing Date), such list
containing the identification of each space in the Property and, for each
such space, the name of the tenant, the date of the Tenant Lease, and all
modifications and supplements thereto.
(iii) In connection with Tenant Leases, (i) Seller has received no written claim
from any tenant alleging that Seller has defaulted in performing any of its
material obligations under any of the Tenant Leases that has not been
cured or otherwise resolved, (ii) no material defaults exist under any of the
Tenant Leases on the part of the tenant thereunder and (iii) Seller has
received no written notice that any of the tenants now in occupancy at the
Property are the subject of any bankruptcy, reorganization, insolvency, or
similar proceeding.
(iv) Seller has not been served in any litigation, arbitration, or other judicial,
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administrative, or other similar proceedings involving or related to the
Property which is currently pending and which would have a material
impact on Buyer's ownership or operation of the Property.
(v) The list of Service Contracts and Long-Term Service Contracts attached
hereto as Schedule 2 to Exhibit K is true, correct, and complete as of the
date specified thereon (to be updated as of the Closing Date), and Seller
has received no written claim from any party thereto alleging a default by
Seller in performing any of its obligations under any of the Service
Contracts or Long-Term Service Contracts, that has not been cured or
otherwise resolved.
(vi) Seller has received no written governmental notice of any actual or
threatened condemnation of the Property or any part thereof.
The representations and warranties of Seller set forth in this Section 3.1 constitute the
sole representations and warranties of Seller. If any such representations and warranties
contained in this Section 3.1 are, as of the Effective Date, or shall become, prior to the Closing
Date, not true and correct in any immaterial respect, then Seller shall not be in breach of this
Agreement with respect thereto, Buyer shall have no remedy therefor and Buyer may not
terminate this Agreement. If any such representations and warranties contained in this Section
3.1 are, as of the Effective Date, or shall become, prior to the Closing, not true and correct in any
material respect, then Seller shall not be in breach of this Agreement with respect thereto (except
in the event due to an intentional and willful act or misrepresentation of Seller in violation of this
Agreement), and Buyer’s sole and exclusive remedy (Buyer hereby waiving all other remedies it
may have, whether at law or in equity or otherwise) with respect thereto shall be either: (i) to
waive same and consummate the transaction contemplated in this Agreement or (ii) to terminate
this Agreement by furnishing written notice thereof to the Seller on or prior to the Closing Date
pursuant to Article 14 hereof. If any such representations and warranties contained in this
Section 3.1 are, as of the Effective Date, or shall become as of the Closing, not true and correct
in any material respect due to an intentional and willful misrepresentation or act of Seller in
violation of this Agreement, then Buyer shall have the remedies set forth in Section 13.2 as its
sole and exclusive remedy (Buyer hereby waiving all other remedies it may have, whether at law
or in equity or otherwise).
Buyer hereby acknowledges that (i) Seller makes no representations or warranties
concerning any patents, trademarks, copyrights, or other intellectual property rights and (ii)
"Seller's Actual Knowledge," upon which all of the representations and warranties set forth in
this Article are based, means only the current actual knowledge of the Involved Seller
Representative(s), without conducting any investigations whatsoever, or inquiry or review of
files in Seller's possession or control in connection with this transaction or the making of the
representations contained in this Article. To Seller's Actual Knowledge, there are no employees
of Seller or Northwestern Mutual Investment Management Company, LLC, who are likely to
have information regarding the representations and warranties set forth in this Section which
would be superior to that of the Involved Seller Representative(s). The Involved Seller
Representatives are named in this Agreement solely for the purpose of establishing the scope of
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Seller’s Actual Knowledge. Such individuals shall not be deemed to be parties to this
Agreement, nor to have made any representations or warranties hereunder, and no recourse shall
be had to such individuals for any of Seller’s representations and warranties hereunder (and
Buyer hereby waives any liability of or recourse against such individuals). Seller shall promptly
notify Buyer of any event or circumstance which makes any representation or warranty by Seller
in this Agreement untrue promptly upon any Involved Seller Representative obtaining actual
knowledge thereof. Notwithstanding anything to the contrary contained in this Agreement,
Seller shall have no liability with respect to any of Seller’s representations, warranties and
covenants herein if, prior to the Closing, Buyer has actual knowledge of any breach of a
representation, warranty or covenant of Seller herein, or Buyer obtains actual knowledge (from
whatever source, including, without limitation, as a result of Buyer’s due diligence tests,
investigations and inspections of the Property; or as a result of written disclosure by any of
Seller’s agents, representatives or employees) that contradicts any of Seller’s representations,
warranties or covenants herein (and the representations and warranties of Seller shall be deemed
modified thereby to be accurate), and Buyer nevertheless consummates the transaction
contemplated by this Agreement (in which event any such breach or contradiction shall be
deemed waived by Buyer). At Closing, Seller shall deliver to Buyer a Seller’s Certificate in the
form of Exhibit H attached hereto. If Closing occurs, Buyer agrees that the sole and exclusive
remedy for a breach of any representation or warranty by Seller (either herein or in the Seller’s
Certificate) shall be as set forth in Section 15.1 hereto, subject to any limitations set forth therein.
3.2 NO OTHER REPRESENTATIONS AND WARRANTIES BY SELLER.
EXCEPT AS SET FORTH IN SECTION 3.1 HEREOF AND THE REPRESENTATIONS
EXPRESSLY SET FORTH IN ANY DOCUMENT EXECUTED BY SELLER AND
DELIVERED TO BUYER AT CLOSING, SELLER MAKES NO OTHER, AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY OTHER REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS, OR GUARANTEES OF ANY
KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL, OR
WRITTEN, PAST, PRESENT, OR FUTURE, WITH RESPECT TO THE PROPERTY,
INCLUDING, WITHOUT LIMITATION: (I) THE OWNERSHIP, MANAGEMENT, AND
OPERATION OF THE PROPERTY; (II) TITLE TO THE PROPERTY; (III) THE PHYSICAL
CONDITION, NATURE, OR QUALITY OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE QUALITY OF THE SOILS ON AND UNDER THE REAL PROPERTY,
AND THE QUALITY OF THE LABOR AND MATERIALS INCLUDED IN THE
IMPROVEMENTS OR PERSONAL PROPERTY; (IV) THE FITNESS OF THE PROPERTY
FOR ANY PARTICULAR PURPOSE; (V) THE PRESENCE OR SUSPECTED PRESENCE
OF HAZARDOUS MATERIAL ON, IN, UNDER, OR ABOUT THE PROPERTY
(INCLUDING, WITHOUT LIMITATION, THE SOILS AND GROUNDWATER ON AND
UNDER THE REAL PROPERTY); (VI) THE COMPLIANCE OF THE REAL PROPERTY
WITH APPLICABLE GOVERNMENTAL LAWS OR REGULATIONS, INCLUDING,
WITHOUT LIMITATION, THE AMERICANS WITH DISABILITIES ACT OF 1990,
ENVIRONMENTAL LAWS AND LAWS OR REGULATIONS DEALING WITH ZONING
OR LAND USE; OR (VII) THE PAST OR FUTURE OPERATING RESULTS AND VALUE
OF THE PROPERTY (WHICH MATTERS DESCRIBED IN CLAUSES (I)-(VII) ABOVE
ARE HEREINAFTER COLLECTIVELY REFERRED TO AS "CONDITION AND QUALITY
OF THE PROPERTY"). AS USED HEREIN, "HAZARDOUS MATERIAL" MEANS ANY
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HAZARDOUS, TOXIC OR DANGEROUS WASTE, SUBSTANCE, OR MATERIAL, AS
CURRENTLY DEFINED FOR PURPOSES OF (A) THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS
AMENDED, OR (B) ANY OTHER FEDERAL, STATE, OR LOCAL LAW, ORDINANCE,
RULE, OR REGULATION APPLICABLE TO THE PROPERTY AND ESTABLISHING
LIABILITY STANDARDS OR REQUIRED ACTION AS TO REPORTING, DISCHARGE,
SPILLAGE, STORAGE, UNCONTROLLED LOSS, SEEPAGE, FILTRATION, DISPOSAL,
REMOVAL, USE, OR EXISTENCE OF A HAZARDOUS, TOXIC, OR DANGEROUS
WASTE, SUBSTANCE, OR MATERIAL.
3.3 Representations, Warranties, and Covenants by Buyer. Buyer hereby
represents and warrants to Seller that:
(a) Buyer is a limited liability company duly organized and validly existing
under the laws of the State of Wisconsin. Buyer has the full legal power,
authority, and right to execute, deliver, and perform its legal obligations
under this Agreement, and Buyer's performance hereunder has been duly
authorized by all requisite action on the part of Buyer, and no remaining
action is required to make this Agreement binding on Buyer.
(b) All documents and information relating to the Property which are
disclosed to or obtained by Buyer during the term of this Agreement
("Property Information") shall be held by Buyer in strict confidence.
Buyer shall not disclose Property Information to any third party except (a)
to Buyer's investors and/or to its lenders, professional advisors, outside
counsel, and employees ("Buyer Parties"), and if so disclosed, then only to
the extent necessary to facilitate Buyer's evaluation of the condition of the
Property or its financing of the same on a "need-to-know" basis; (b) a
required disclosure to any governmental, administrative, or regulatory
authority having or asserting jurisdiction over either Buyer, Seller, or the
Property; or (c) to any person entitled to receive such information pursuant
to a subpoena or other legal process. Notwithstanding the foregoing,
Property Information shall not include the following: (i) information
which has been or becomes generally available to the public other than as
a result of a disclosure by Buyer in violation of this Agreement; or (ii)
information which was available to Buyer on a non-confidential basis
prior to its disclosure to Buyer by Seller. Buyer shall inform all Buyer
Parties to whom it has disclosed Property Information of the confidential
nature of the same, and Buyer shall be responsible in the event that such
Buyer Parties fail to treat such Property Information confidentially.
(c) Neither Buyer, nor any person or entity owning (directly or indirectly) a
ten percent (10%) or greater ownership interest in Buyer: (i) is now or
shall become, a person or entity with whom Seller is restricted from doing
business with under regulations of the Office of Foreign Assets Control
("OFAC") of the Department of the Treasury (including, but not limited
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to, those named on OFAC's Specially Designated Nationals and Blocked
Persons list) or under any statute, executive order (including, but not
limited to, the September 24, 2001, Executive Order Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action; (ii) is now
or shall become, a person or entity with whom Seller is restricted from
doing business with under the International Money Laundering Abatement
and Financial Anti-Terrorism Act of 2001, or the regulations or orders
thereunder; and (iii) is not knowingly engaged in, and shall not engage in,
any dealings or transaction, or be otherwise associated with such persons
or entities described in (i) and (ii) above.
DTPA WAIVER/WAIVER OF CONSUMER RIGHTS. THE UNDERSIGNED BUYER
AGREES THAT IT IS WAIVING ITS RIGHTS UNDER THE DECEPTIVE TRADE
PRACTICES–CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS
BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL
RIGHTS AND PROTECTIONS. THIS WAIVER IS MADE AFTER CONSULTATION
WITH AN ATTORNEY OF BUYER’S OWN SELECTION, AND BUYER
VOLUNTARILY CONSENTS TO THE WAIVER. BUYER HEREBY FURTHER
REPRESENTS AND WARRANTS TO SELLER THAT (I) BUYER IS NOT IN A
SIGNIFICANTLY DISPARATE BARGAINING POSITION IN RELATION TO
SELLER; (II) BUYER IS REPRESENTED BY LEGAL COUNSEL OF ITS OWN
CHOICE AND DESIGNATION IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THIS CONTRACT, AND (III) BUYER IS PURCHASING THE
PROPERTY FOR BUSINESS OR COMMERCIAL INVESTMENT OR OTHER
SIMILAR PURPOSE, NOT FOR USE AS BUYER’S RESIDENCE.
Buyer shall promptly notify Seller of any event or circumstance which makes any
representation or warranty by Buyer under this Agreement untrue. At Closing, Buyer shall
deliver to Seller a Buyer's Certificate in the form of Exhibit I attached hereto. The provisions of
Subsections 3.3(b) and (c) shall survive the termination of this Agreement indefinitely. This
Section 3.3 shall survive Closing subject to the limitations in Section 15.2 of this Agreement.
Seller agrees that if Closing occurs, the sole and exclusive remedy for a breach of any
representation or warranty by Buyer (either herein or in the Buyer’s Certificate) shall be as set
forth in Section 15.2 hereto, subject to any limitations set forth therein.
3.4 Buyer's Reliance on Own Investigation; "AS-IS" Sale.
(a) Buyer agrees and acknowledges that, as of the Closing Date, Buyer shall
have made such feasibility studies, investigations, title searches,
environmental studies, engineering studies, inquiries of governmental
officials, and all other inquiries and investigations as Buyer shall deem
necessary to satisfy itself as to the Condition and Quality of the Property.
(b) EXCEPT AS REPRESENTED AND WARRANTED BY SELLER
PURSUANT TO THE TERMS AND PROVISIONS OF SECTION 3.1
HEREOF, OR IN ANY DOCUMENT REQUIRED TO BE EXECUTED
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BY SELLER AND DELIVERED TO BUYER AT CLOSING, BUYER
ACKNOWLEDGES AND AGREES THAT, AT CLOSING, BUYER
SHALL BUY THE PROPERTY IN ITS THEN CONDITION, "AS IS,
WHERE IS," WITH ALL FAULTS AND SOLELY IN RELIANCE ON
BUYER'S OWN INVESTIGATION, EXAMINATION, INSPECTION,
ANALYSIS, AND EVALUATION. BUYER IS NOT RELYING ON
ANY STATEMENT OR INFORMATION MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXPRESS
OR IMPLIED, BY SELLER, ITS AFFILIATES, AGENTS OR BROKER
AS TO ANY ASPECT OF THE PROPERTY, INCLUDING WITHOUT
LIMITATION, THE CONDITION AND QUALITY OF THE
PROPERTY (AS DEFINED IN SECTION 3.2 HEREOF), BUT
RATHER, IS AND WILL BE RELYING ON INDEPENDENT
EVALUATIONS BY ITS OWN PERSONNEL OR CONSULTANTS TO
MAKE A DETERMINATION AS TO THE PHYSICAL AND
ECONOMIC NATURE, CONDITION, AND PROSPECTS OF THE
PROPERTY. UPON CLOSING, BUYER WILL ASSUME THE RISK
OF ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO,
ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS,
THAT MAY NOT HAVE BEEN REVEALED BY BUYER’S
INSPECTIONS AND INVESTIGATIONS. BUYER FURTHER
HEREBY ASSUMES THE RISK OF CHANGES IN APPLICABLE
ENVIRONMENTAL LAWS RELATING TO PAST, PRESENT AND
FUTURE ENVIRONMENTAL HEALTH CONDITIONS ON, OR
RESULTING FROM THE OWNERSHIP OR OPERATION OF, THE
PROPERTY. BUYER ACKNOWLEDGES THAT THE PURCHASE
PRICE REFLECTS THE “AS IS, WHERE IS” NATURE OF THIS SALE
AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE
MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY.
BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE
DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT,
AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT
THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE
DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN
ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT
SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY
TO BUYER FOR THE PURCHASE PRICE WITHOUT THE
DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS
AGREEMENT.
(c) The agreements and acknowledgments contained in this Section 3.4
constitute a conclusive admission that Buyer, as a sophisticated,
knowledgeable investor in real property, shall acquire the Property solely
upon its own judgment as to any matter germane to the Property or to
Buyer's contemplated use or investment in the Property, and not upon any
statement, representation or warranty by Seller or any affiliate, agent or
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representative of Seller (including Seller's Broker), which is not expressly
set forth in this Agreement or any document required to be executed by
Seller and delivered to Buyer at Closing.
(d) Notwithstanding anything in this Agreement to the contrary, as a
sophisticated and knowledgeable investor in real property, Buyer is aware
that mold, water damage, fungi, bacteria, indoor air pollutants or other
biological growth or growth factors (collectively called "Indoor Air
Pollutants") may exist at the Property and that such Indoor Air Pollutants
may be undiscoverable during routine or invasive inspections, ownership,
or operations of the Property. In evaluating its purchase of the Property
and determining the Purchase Price, Buyer has taken (or shall take) these
matters into account, and Buyer shall assume, at Closing, the risk of all
Indoor Air Pollutants, including, without limitation, those resulting from
patent or latent construction defects.
The provisions of this Section 3.4 shall survive Closing.
ARTICLE 4
THE TRANSACTION
4.1 Escrow. In order to effectuate the conveyance contemplated by this Agreement,
the parties hereto agree to open an escrow account with Escrow Holder. A copy of this
Agreement shall be delivered to, and receipt thereof shall be acknowledged by, Escrow Holder
upon full execution hereof by Seller and Buyer.
4.2 Purchase Price. Subject to the provisions hereof, Buyer agrees to pay the
Purchase Price for the Property to Seller as follows:
4.2.1 Earnest Money. Within two (2) business days following the Effective
Date, Buyer shall deposit with Escrow Holder the Earnest Money in cash or other immediately
payable funds. Failure of Buyer to timely deposit the Earnest Money with Escrow Holder shall
constitute a default by Buyer hereunder.
4.2.2 Retention and Disbursement of Earnest Money. If the transaction
contemplated by this Agreement closes in accordance with the terms and conditions of this
Agreement, then, at Closing, the Earnest Money and all interest earned thereon shall be applied
against the Purchase Price. In the event of a default by Buyer, the Earnest Money shall be
delivered to Seller pursuant to the terms herein and all interest earned thereon shall be paid to
Seller. The Earnest Money shall be held in an interest-bearing account at a federally-insured
bank in the name of Buyer. Escrow Holder shall not disburse any of the Earnest Money except
in accordance with (a) this Agreement; (b) written instructions executed by both Buyer and
Seller; or (c) as follows:
If Buyer or Seller, by notice to Escrow Holder, makes demand upon Escrow
Holder for the Earnest Money (the "Demanding Party"), Escrow Holder shall, at the expense of
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the Demanding Party, give notice of such demand (the "Notice of Demand") to the other party
(the "Other Party"). If Escrow Holder does not receive notice from the Other Party contesting
such disbursement of the Earnest Money within five (5) business days from the date on which
the Notice of Demand was given, Escrow Holder shall disburse the Earnest Money to the
Demanding Party. If Escrow Holder does receive notice from the Other Party contesting such
disbursement of the Earnest Money within five (5) business days from the date on which the
Notice of Demand was given, then Escrow Holder shall thereafter disburse the Earnest Money
only in accordance with written instructions executed by both Buyer and Seller, or if none, then
in accordance with a final, non-appealable court order.
Seller and Buyer shall indemnify and hold Escrow Holder harmless from all costs
and expenses incurred by Escrow Holder, including reasonable attorneys’ fees, by reason of
Escrow Holder being a party to this Agreement, except for any costs and expenses (a) incurred
by Escrow Holder as a result of any failure by Escrow Holder to perform its obligations under
this Agreement or (b) arising out of the negligence or misconduct of Escrow Holder. In the
event of any disagreement between Seller and Buyer resulting in adverse claims or demands
being made in connection with the Earnest Money, Escrow Holder, upon written notice to Seller
and Buyer, may commence an interpleader action and deposit the Earnest Money with a court of
competent jurisdiction.
4.2.3 Cash at Closing. Buyer shall pay to Seller, by depositing with Escrow
Holder, in cash or other immediately payable funds, the Purchase Price less (i) the Earnest
Money (plus the accrued interest thereon) held by Escrow Holder and (ii) the Independent
Consideration, plus costs to be paid by Buyer pursuant to Section 7.4 hereof, and plus or minus
prorations and adjustments shown on the closing statements executed by Buyer and Seller.
4.2.4 Independent Consideration. As consideration for Seller’s agreement to
enter into this Agreement, the sum of one hundred dollars ($100.00) (the “Independent
Consideration”) out of the Earnest Money shall be disbursed to Seller, which Independent
Consideration shall be retained by Seller as Seller’s sole property immediately upon receipt
thereof and which shall be nonrefundable to Buyer in all events; provided, however, that the
Independent Consideration shall be applied to the Purchase Price at Closing.
4.3 Conveyance. Subject to the provisions hereof, on the Closing Date Seller shall
convey the fee simple interest in the Property to Buyer by a special warranty deed (the "Deed")
in the form of Exhibit A attached hereto, subject to those matters set forth therein, and shall
convey the leasehold estate in the Property to Buyer by an Assignment and Assumption of
Ground Lease in the form of Exhibit J attached hereto. If necessary, the form of Deed and
Assignment and Assumption of Ground Lease shall be modified so as to be recordable in the
jurisdiction where the Property is located.
ARTICLE 5
TITLE AND SURVEY
5.1 Title Commitment. Seller has delivered or caused Title Insurer to deliver, a title
commitment (the "Commitment") with respect to the Property, together with a copy of each
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instrument that is listed as an exception in the Commitment, with the cost thereof to be paid in
accordance with Section 7.4 hereof. Buyer will work directly with Title Insurer to clear title
exceptions, issue revised commitments and/or proforma policies as deemed necessary by Buyer.
At Closing, Seller shall provide Title Insurer with an Affidavit as to Debts, Liens, Parties
in Possession, and GAP Coverage in the form of Exhibit M attached hereto. Under no
circumstances shall Seller be obligated to give Title Insurer any certificate, affidavit, or other
undertaking of any sort which would have the effect of increasing the potential liability of Seller
over that which it would have by giving Buyer the Deed and Assignment and Assumption of
Ground Lease required hereunder.
5.2 Survey. As soon as possible after the Effective Date, if available, Seller shall
provide Buyer with Seller's most recent available survey of the Property and Buyer has the
option, provided that Buyer does so promptly after the Effective Date and at Buyer's sole cost
and expense, to obtain its own survey of the Property, and, upon completion of such updated
survey, Buyer shall provide a certified original updated survey to Seller and Title Insurer.
ARTICLE 6
CONDITION OF THE PROPERTY
6.1 Inspections.
6.1.1 Inspection of Property. BUYER HAS BEEN EXPRESSLY ADVISED
BY SELLER TO CONDUCT AN INDEPENDENT INVESTIGATION AND INSPECTION OF
THE PROPERTY (subject to the provisions hereof), UTILIZING EXPERTS AS BUYER
DEEMS NECESSARY.
6.2 Environmental Matters.
6.2.1 Seller's Environmental Reports. Seller shall deliver to Buyer, not later
than one (1) business day after the full execution of this Agreement, copies of all environmental
reports in Seller's possession relating to the Property that were prepared by third party
environmental consultants on Seller's behalf (the "Existing Environmental Report(s)"). The
Existing Environmental Report(s) are listed on Exhibit C attached hereto. Seller may, but shall
not be required to, commission additional environmental testing of the Property at any time prior
to the Closing Date, the cost of which shall be paid by Seller (the "Future Environmental
Report(s)"). The Existing Environmental Report(s) and any Future Environmental Report(s) are
hereinafter collectively referred to as "Seller's Environmental Reports." Seller shall provide
Buyer with a copy of any final Future Environmental Report promptly after Seller's receipt of
same; provided, however, notwithstanding anything herein to the contrary, Seller shall be under
no obligation to release any Future Environmental Report(s) to Buyer with respect to which
Seller is under a legal or contractual confidentiality obligation. Anything to the contrary
herein notwithstanding, Seller shall have no responsibility or liability with respect to the
results or any inaccuracies in any Seller's Environmental Report(s), and makes no
representations or warranties whatsoever regarding (i) the completeness of Seller's
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Environmental Report(s); (ii) the truth or accuracy of Seller's Environmental Report(s); or
(iii) the existence or nonexistence of any hazardous or toxic wastes or materials in, on, or
about the Property. Further, Seller is not assigning Seller's Environmental Report(s) to
Buyer, nor granting Buyer any rights with respect to any environmental firm(s) producing
Seller's Environmental Report(s); provided, however, Buyer shall have the right, at its
expense, to obtain a reliance letter from the consultant that prepared Seller's
Environmental Reports, and Seller shall reasonably cooperate with Buyer in connection
therewith.
6.3 Termination.
6.3.1 Buyer's Right to Terminate. If Seller shall deliver to Buyer any Future
Environmental Report(s) at any time after the date which is five (5) days prior to the Closing
Date, and if Buyer is not satisfied with the results of the Future Environmental Report(s) based
solely on matters not previously disclosed or known to Buyer, Buyer shall have the right to
terminate this Agreement in accordance with Article 14 hereof, by giving Seller written notice of
such termination on or before the date which is three (3) days after Buyer's receipt of any Future
Environmental Report ("Buyer's Review Date"). If Buyer receives any Future Environmental
Reports less than three (3) days before the Closing Date, then the Closing shall occur one (1)
business day after Buyer's Review Date, or such earlier date to which Buyer and Seller may
mutually agree. If Seller shall not timely receive a notice of termination from Buyer, Buyer shall
be conclusively deemed to have approved the results of any Future Environmental Report, and
Buyer shall have no further right to terminate this Agreement with respect to matters set forth in
this Subsection.
6.3.2 Seller's Right to Terminate. If any Future Environmental Report (a
"New Report") discloses any existing environmental condition which materially and adversely
affects the Property and/or Seller's interest therein, which condition was not disclosed in Seller's
Environmental Reports, then Seller, in its sole discretion, shall have the right to terminate this
Agreement in accordance with Article 14 hereof by giving Buyer written notice of such
termination not later than five (5) business days after Seller's receipt of a New Report (the
"Seller's Review Date"). An environmental condition shall be deemed to materially and
adversely affect the Property and/or Seller's interest therein if, in Seller's sole opinion, such
condition (a) may result in further contamination of the soil, ground water, or other physical
elements of either the Property or adjacent property; (b) poses a risk to human health; or
(c) would be likely to create, result in, or impose upon Seller any liability after the Closing.
If Seller receives a New Report less than five (5) business days before the Closing
Date, the Closing Date shall be postponed one (1) business day after Seller's Review Date or
such later date upon which Buyer and Seller may mutually agree. If Buyer shall not timely
receive notice of termination from Seller, Seller shall have no further right to terminate this
Agreement with respect to matters set forth in such New Report.
6.4 Service Contracts. With respect to the Service Contracts that Buyer has elected
not to have assigned to it, as indicated in the Approval Notice, Seller shall promptly terminate
such Service Contracts effective as of the Closing Date. Notwithstanding anything contained
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herein to the contrary, Buyer hereby agrees to assume and shall have no option to terminate
Long-Term Service Contracts as defined in Article 2 hereof. If and to the extent that any such
Service Contract is not terminable until a date after the Closing, notwithstanding Seller's delivery
of the appropriate termination notice, then Buyer shall be responsible for all obligations under
such Service Contract from the Closing Date until the effective date of termination. Seller shall
deliver the applicable notices of termination as soon as practicable following Seller's receipt of
the Approval Notice. With respect to the Service Contracts that Buyer has elected to have
assigned to it, Buyer will be solely responsible for obtaining the consent to the transfer of any
Service Contract which requires such consent; provided that Seller shall cooperate as reasonably
necessary in obtaining any such consent.
6.5 Management of the Property. Until the Closing Date, Seller shall manage the
Property in a manner deemed reasonable in Seller's sole discretion, and Seller shall use good
faith efforts to maintain the Property, ordinary wear and tear excepted, following the Effective
Date until the Closing Date, in substantially the same manner that Seller has maintained the
Property prior to the Effective Date.
6.6 Leasing. Between the Effective Date and the Closing Date, Seller will not enter
into any new lease, license or occupancy agreement affecting the Property, and Seller shall not
amend or in any way modify the terms of the Tenant Leases, or consent to any assignment or
subletting of the Tenant Leases, grant any consent of the landlord under the Tenant Leases or
waive any provision of or terminate the Tenant Leases, without Buyer's prior written consent in
each instance.
ARTICLE 7
CLOSING
7.1 Buyer's Conditions Precedent to Closing. The obligations of Buyer with regard
to Closing under this Agreement are, at its option, subject to the fulfillment of each and all of the
following conditions prior to or at the Closing:
(a) Seller shall have performed and complied with all the agreements and
conditions required in this Agreement to be performed and complied with
by Seller prior to Closing, and Buyer and Seller agree that Escrow Holder
may deem all such items to have been performed and complied with when
Seller has deposited all items in Escrow as required hereunder.
(b) Title Insurer is prepared to issue its TLTA Owner's Policy of Title
Insurance in the amount of the Purchase Price showing title vested in
Buyer subject only to the usual exceptions found in said policy.
(c) The representations by Seller contained in Section 3.1 of this Agreement
shall be true and correct in all material respects as of the Closing Date.
Buyer's closing of the purchase provided for herein shall evidence Buyer's satisfaction
with or waiver of each of such conditions. If any conditions to Buyer's obligation to close are
not satisfied at Closing, as Buyer's sole and exclusive remedy (Buyer hereby waiving all other
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remedies except as expressly provided below in the proviso to this sentence), Buyer may
terminate this Agreement pursuant to Article 14 hereof; provided, however, in the event the
conditions under Sections 7.1(a) or 7.1(c) (but as to Section 7.1(c), solely with respect to
representations and warranties contained in Section 3.1 hereof that were not true or correct in any
material respect as of the Effective Date as the result of an intentional and willful
misrepresentation of Seller, or that become untrue or incorrect in any material way after the
Effective Date but prior to the Closing due to an intentional or willful act of Seller in violation of
this Agreement) are not satisfied or waived by Buyer on or before the Closing, Buyer shall be
entitled to pursue its remedies under Section 13.2 hereof. Notwithstanding anything to the
contrary contained in this Section 7.1, if Buyer, or its agents, employees, consultants, engineers
and/or designees cause any Buyer's conditions precedent to closing not to be satisfied, Buyer
shall not have the right to rely upon such unsatisfied condition as a basis for refusing to proceed
to Closing or terminating this Agreement.
7.2 Seller's Conditions Precedent to Closing. The obligations of Seller with regard
to Closing under this Agreement are, at Seller's option, subject to the fulfillment of all of the
following conditions prior to or at the Closing:
(a) Buyer shall have performed and complied with all the agreements and
conditions required by this Agreement to be performed and complied with
by Buyer prior to Closing, and Buyer and Seller agree that Escrow Holder
may deem all such items to have been performed and complied with when
Buyer has deposited with Escrow Holder all items required hereunder.
(b) The results of a Future Environmental Report, if any, shall be satisfactory
to Seller in its sole discretion as set forth in Subsection 6.4.2.
(c) The representations by Buyer contained herein shall be true and correct in
all material respects as of the Closing Date.
Seller's closing of the purchase provided for herein shall evidence Seller's satisfaction
with or waiver of each of such conditions. If any conditions to Seller's obligation to close are not
satisfied at Closing, as Seller's sole and exclusive remedy (Seller hereby waiving all other
remedies except as expressly provided below in the proviso to this sentence), Seller may
terminate this Agreement pursuant to Article 14 hereof; provided, however, in the event the
conditions under Sections 7.2(a) or 7.2(c) (but as to Section 7.2(c), solely with respect to
representations and warranties contained in Section 3.3 hereof that were not true or correct in any
material respect as of the Effective Date as the result of an intentional and willful
misrepresentation of Buyer, or that become untrue or incorrect in any material way after the
Effective Date but prior to the Closing due to an intentional or willful act of Buyer in violation of
this Agreement) are not satisfied or waived by Seller on or before the Closing, Seller shall be
entitled to pursue its remedies under Section 13.1 hereof.
7.3 Deposits in Escrow. On or before the day preceding the Closing Date:
7.3.1 Seller's Deposits. Seller shall deliver to Escrow Holder the following to
be held in escrow:
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(a) Deed in the form of Exhibit A attached hereto;
(b) Certificate of Non-Foreign Status in the form of Exhibit E
attached hereto;
(c) Certificate of Assistant Secretary substantially in the form of
Exhibit F attached hereto;
(d) Bill of Sale in the form of Exhibit G attached hereto;
(e) Affidavit as to Debts, Liens, Parties in Possession, and GAP
Coverage in the form of Exhibit M attached hereto;
(f) Seller's Certificate in the form of Exhibit H attached hereto; and
(g) Seller's closing instructions to Escrow Holder.
7.3.2 Buyer's Deposits. Buyer shall deliver to Escrow Holder the following to
be held in escrow:
(a) Purchase Price less the Earnest Money, plus costs to be paid by
Buyer pursuant to the terms of this Agreement, and plus or minus
prorations and adjustments shown on the closing statement
executed by Buyer and Seller;
(b) Buyer's closing instructions to Escrow Holder; and
(c) Buyer's Certificate in the form of Exhibit I attached hereto.
7.3.3 Joint Deposits. Buyer and Seller shall jointly deposit with Escrow Holder
the following documents, each executed by persons or entities duly authorized to execute same
on behalf of Buyer and Seller:
(a) Assignment and Assumption of Ground Lease in the form of
Exhibit J attached hereto, assigning to Buyer Seller's leasehold
estate in the Property.
(b) Closing Statement prepared by Escrow Holder for approval by
Buyer and Seller prior to the Closing Date and such closing
statements shall be deposited with Escrow Holder after the same
has been executed by Buyer and Seller. The parties acknowledge
that in the event of an Exchange, as defined in Subsection 16.10.1
hereof, such closing statement shall be executed by Qualified
Intermediary in lieu of Seller or Buyer, as the case may be.
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(c) Assignment and Assumption of Leases in the form of Exhibit B
attached hereto, assigning to Buyer all of Seller's right, title, and
interest in the Tenant Leases.
(d) Assignment and Assumption of Service Contracts and Other
Obligations in the form of Exhibit K attached hereto, assigning to
Buyer all of Seller's right, title, and interest in the Service
Contracts and other obligations.
7.3.4 Other Documents. Buyer and Seller shall deposit with Escrow Holder all
other documents which are required to be deposited in escrow by the terms of this Agreement.
7.4 Costs. Buyer shall pay the cost of (i) a standard TLTA Owner's Title Insurance
Policy, and the cost of all endorsements to such owner's policy; and (ii) the updated survey.
Seller shall pay the cost of (a) the realty transfer or stamp taxes and (b) recording fees. All other
costs and expenses of the sale and Closing shall be allocated between Seller and Buyer in
accordance with the local custom in the jurisdiction in which the Property is located. Buyer and
Seller shall equally share the cost of Escrow Holder's charge for the escrow, if any. Buyer and
Seller shall each pay its own legal fees incurred in connection with the drafting and negotiating
of this Agreement and the Closing of the transaction contemplated herein.
7.5 Prorations.
7.5.1. Generally. The following items shall be prorated between Buyer and
Seller as of the Closing Date:
(a) Taxes and Assessments. General real estate taxes and
assessments and other similar charges which are a lien on the
Property, but not yet due and payable as of the Closing Date, shall
be prorated based upon the most recent known tax assessment and
tax rate and will be final; provided, however, should there be any
discount available for the payment of taxes prior to the due date,
taxes shall be prorated on such discounted amount. Any
assessments levied against the Property which are payable on an
installment basis and which installments are due, payable and
outstanding on the Closing Date shall be paid by Seller on the
Closing Date. Seller shall have no liability for any reassessments
or adjustments which result from the sale of the Property.
(b) Rentals, Other Income, and Security Deposits. Rentals and
other amounts and items of income relating to the Property which
have been collected by Seller, including percentage rent, if any,
shall be prorated as of the Closing Date, and will be final as of the
Closing Date. Buyer shall receive a credit at the Closing for the
aggregate amount of all Security Deposits held by Seller in the
form of cash which have not previously been applied by Seller and
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prepaid rents held by or on behalf of Seller. Buyer shall receive no
credit at Closing for any Security Deposits held by Seller in the
form of a letter of credit but rather, Seller's interest in such
letter(s) of credit shall be transferred to Buyer as further set forth in
Section 7.8 of this Agreement. Seller shall receive a credit at
Closing for any outstanding rents due and payable that are less
than thirty (30) days past due for tenants still in occupancy at the
Property. For any outstanding rents due Seller more than thirty
(30) days past due for tenants still in occupancy at the Property, if
Buyer collects such receivables from any delinquent tenants, Buyer
shall promptly remit any payment received from such delinquent
tenants to Seller, after deducting from such receivables such amount
necessary to satisfy such tenant’s most recently accrued obligations
first. Seller hereby retains the right to collect for its own account
all rents due and payable from tenants as of the Closing Date that
are no longer in occupancy at the Property as of the Closing Date
(which right shall survive the Closing).
(c) Expenses. All expenses of operating the Property which have
been prepaid by Seller (except insurance pursuant to Section 7.6)
shall be prorated. Expenses incurred in operating the Property that
Seller customarily pays and any other costs incurred in the
ordinary course of business or the management and operation of
the Property shall be prorated on an accrual basis.
(d) Utilities. Seller shall receive credit for assignable utility deposits,
if any, which are assigned to Buyer at Buyer's request or with
Buyer's consent. To the extent possible, Seller shall cause all
utility meters with respect to utility charges which are not payable
by tenants, to be read as of the Closing Date, and Seller shall pay
all charges for those utilities payable by Seller with respect to the
Property which have accrued to and including the Closing Date
and Buyer shall pay all such expenses accruing from and after the
Closing Date.
Seller and Buyer agree that, if any of the aforesaid prorations cannot be calculated
accurately on the Closing Date, the same shall be estimated as of the Closing Date, and any final
adjustments shall be made within thirty (30) days after the Closing Date, or as soon as sufficient
information to determine such prorations is available. Prorations and adjustments shall be made
by credits to or charges against the Purchase Price. For purposes of calculating prorations, Buyer
shall be deemed to be entitled to the income and responsible for the expenses for the entire day
upon which the Closing occurs. All prorations shall be made in accordance with customary
practice in the county in which the Property is located, except as expressly provided herein; in
the event of dispute between Buyer and Seller, the advice of Title Insurer shall be determinative
as to what is customary. This provision shall survive Closing.
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7.5.2 Like-Kind Exchange (Proration). If this transaction is consummated as
an Exchange, as defined in Subsection 16.10.1 hereof, then, notwithstanding the provisions of
Subsection 7.5.1 hereof, certain items which are a charge to Seller shall be paid by Seller to
Buyer at Closing, in cash or other immediately payable funds, and shall not be deducted from the
Purchase Price.
7.6 Insurance. The fire, hazard, and other insurance policies relating to the Property
shall be canceled by Seller as of the Closing Date and shall not, under any circumstances, be
assigned to Buyer. All unearned premiums for fire and any additional hazard insurance premium
or other insurance policy premiums with respect to the Property shall be retained by Seller.
7.7 Close of Escrow. As soon as Buyer and Seller have deposited all items required
with Escrow Holder, and upon satisfaction of Sections 7.1 and 7.2, Escrow Holder shall cause
the sale and purchase of the Property to be consummated (the "Closing") in accordance with the
terms hereof by immediately and in the order specified:
(a) Wire Transfer. Wire transferring the Purchase Price, less Seller's
Broker's commission and the amount of costs paid by Seller at Closing,
and plus or minus the amount of any prorations pursuant to the terms
hereof, all as set forth on the closing statement signed by Seller and Buyer,
directly to Seller pursuant to Seller's written closing instructions.
Notwithstanding the foregoing, however, in the event Escrow Holder
receives written notice that Seller's rights to the Agreement have been
assigned to a Qualified Intermediary under an Exchange Agreement, then
wire transfer the Purchase Price, less Seller's Broker's commission, and the
amount of costs paid by Seller at Closing, and plus or minus the amount of
any prorations pursuant to the terms hereof, all as set forth on the closing
statement signed by Seller, directly to the Qualified Intermediary pursuant
to Seller's written closing instructions. If, in the opinion of Escrow
Holder, the wire transfer cannot be initiated by Escrow Holder on or
before 12:00 p.m. Central Time on the Closing Date, then after Escrow
Holder obtains Seller's approval upon telephonic consultation with Seller,
the Closing shall be consummated on the next business day (with all
prorations adjusted accordingly), but the net sales proceeds shall be
invested overnight in federal securities, or in a federally insured bank
account, in the name of Escrow Holder, and such net sales proceeds plus
the interest earned thereon shall be disbursed by Escrow Holder the next
business day, after which the Deed and Assignment and Assumption of
Ground Lease shall be recorded. Such delay of the Closing will not
release Buyer or Seller from their obligations under this Agreement.
(b) Recordation. Recording the Deed and the Assignment and Assumption
of Ground Lease.
(c) Delivery of Other Escrowed Documents.
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(i) Joint Delivery. Delivering to each of Buyer and Seller at least one
executed counterpart of each of the (a) Assignment and
Assumption of Leases; (b) Assignment and Assumption of Service
Contracts and Other Obligations; and (c) closing statement.
(ii) Buyer's Delivery. Delivering to Buyer the (a) Bill of Sale;
(b) Certificate of Non-Foreign Status; (c) Certificate of Assistant
Secretary; (d) Seller's Certificate; (e) Affidavit as to Debts, Liens,
Parties in Possession and GAP Coverage (f) a certified copy of the
Deed submitted for recording and (g) a certified copy of the
Assignment and Assumption of Ground Lease submitted for
recording.
(iii) Seller's Delivery. Delivering to Seller the (a) Buyer's Certificate,
and (b) Assignment and Assumption of Real Estate Purchase Sale
Agreement, if applicable.
(d) Broker's Commission. Delivering to Seller's Broker, the commission as
reflected on the closing statement executed by Seller and Buyer.
7.8 Possession. As of the Closing Date, possession of the Property, subject to the
rights and interests of tenants in possession pursuant to the Tenant Leases, along with the
following items shall be made available to the Buyer at the Property:
(a) Tenant Lease(s). The original of each Tenant Lease and any amendments
thereto (if available), or a copy of each Tenant Lease and any amendments
thereto in the possession of Seller, if not previously delivered to Buyer
together with the original letter(s) of credit held by Seller in lieu of a cash
Security Deposit under Tenant Leases, along with all instruments and fees
required of the banks having issued such letter(s) of credit in order to
transfer the same to Buyer.
(b) Service Contracts. The originals (or copies if originals are not available)
of all Service Contracts in the possession of Seller that have been assigned
to and assumed by Buyer, if not previously delivered to Buyer.
(c) Keys. Any keys and or key cards to any door or lock on the Property in
the possession of Seller.
(d) Licenses and Permits. All original licenses or permits or certified copies
thereof issued by governmental authorities having jurisdiction over the
Property which Seller has in its possession and which are transferable.
7.9 Recorded Instruments. As soon after the Closing as possible, Escrow Holder
shall deliver to Buyer the original recorded Deed and Assignment and Assumption of Ground
Lease, and shall deliver to Seller a copy of the recorded Deed and Assignment and Assumption
22
of Ground Lease, with recordation information noted thereon.
7.10 Tenant Notices. On or before the Closing Date, Seller (or its property manager)
and Buyer shall execute a notice to the tenants of the Property, in the form of Exhibit N attached
hereto, informing tenants that the Property has been sold by Seller to Buyer. Immediately
following the Closing, Seller's property manager shall deliver such notices to all of the tenants of
the Property.
ARTICLE 8
CONDEMNATION AND CASUALTY
If any condemnation, loss, damage by fire, or other casualty to the Property occurs prior
to the Closing Date, Seller shall give prompt written notice to Buyer.
If any condemnation or taking of the Property, or loss or damage by fire or other casualty
to the Property occurs prior to the Closing, which does not exceed the Materiality Limit, the
Closing shall occur just as if such condemnation, loss, or damage had not occurred, and Seller
shall assign to Buyer all of Seller's interest in any condemnation actions and proceeds, or deliver
to Buyer any and all proceeds paid to Seller by Seller's insurer with respect to such fire or other
casualty; provided, however, that Seller shall be entitled to retain an amount of such insurance
proceeds equal to Seller's reasonable expenses, if any, incurred by Seller in repairing the damage
caused by fire or other casualty. At Closing, in the case of a fire or other casualty, Seller shall
give Buyer a credit on the Purchase Price equal to the lesser of the estimated cost of restoration
or the amount of any deductible, unless Seller has repaired the damage caused by such fire or
other casualty. Seller shall maintain "all risk" replacement value insurance coverage in place on
the Property at all times prior to the Closing.
In the event, prior to the Closing, of any condemnation of all or a part of the Property, or
loss or damage by fire or other casualty to the Property, which exceeds the Materiality Limit, at
Buyer's sole option, either:
(a) this Agreement shall terminate in accordance with Article 14 hereof if Buyer shall
so notify Seller in writing within ten (10) days of Buyer receiving notice from
Seller of the casualty or condemnation (provided that at Buyer's option, the
Closing shall be postponed so that Buyer has the full ten (10) day period to make
such election; or
(b) if Buyer shall not have timely notified Seller of its election to terminate this
Agreement in accordance with paragraph (a) above, the Closing shall occur just as
if such condemnation, loss, or damage had not occurred, without reduction in the
Purchase Price, and Seller shall assign to Buyer all of Seller's interest in any
condemnation actions and proceeds or deliver to Buyer any and all proceeds paid
to Seller by Seller's insurer with respect to such fire or other casualty; provided,
however, that Seller shall be entitled to retain an amount of such insurance
proceeds equal to Seller's reasonable expenses, if any, incurred by Seller in
repairing the damage caused by such fire or other casualty. At Closing, in the
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case of a fire or other casualty, Seller shall give Buyer a credit on the Purchase
Price equal to the lesser of the estimated cost of restoration or the amount of the
deductible, unless Seller has repaired the damage caused by such fire or other
casualty.
Notwithstanding anything contained herein to the contrary, the insurance proceeds to be
credited or delivered to Buyer pursuant to this Article will exclude business interruption or rental
loss insurance proceeds, if any, allocable to the period prior to the Closing Date, which proceeds
will be retained by Seller. Any condemnation proceeds or business interruption or rental loss
insurance proceeds received by Seller and allocable to the period from and after the Closing Date
shall be delivered to Buyer. This provision shall survive Closing.
ARTICLE 9
NOTICES
All notices, requests, demands, and other communications given pursuant to this
Agreement shall be in writing and shall be deemed to have been duly delivered, (i) when hand
delivered to the addressee; (ii) one (1) business day after having been deposited, properly
addressed and prepaid for guaranteed next-business-day delivery with a nationally recognized,
overnight courier service (e.g., FedEx, or U.S. Express Mail); or (iii) if any email address is
provided in the Basic Terms for a party, then when received via electronic mail transmission to
the provided email address. All such notices, requests, or demands shall be addressed to the
party to whom notice is intended to be given at the addresses set forth in Article 2 hereof or to
such other address as a party to this Agreement may from time to time designate by notice given
to the other party(ies) to this Agreement.
ARTICLE 10
SUCCESSORS AND ASSIGNS
This Agreement shall not be assigned or transferred by Seller. However, Buyer may
assign or otherwise transfer all of its interest under this Agreement to an entity or entities directly
or indirectly controlled by Buyer ("Assignee") provided that, in such event, (i) Buyer and
Assignee shall be jointly and severally liable for all of the representations, warranties,
indemnities, waivers, releases and other obligations and undertakings set forth in this Agreement,
and (ii) not less than ten (10) business days prior to the Closing Date, Buyer shall deliver to
Seller (a) written notice of such assignment in which the exact nature of Assignee's affiliation
with Buyer is set forth, along with the precise signature block to be included in all closing
documents; and (b) a copy of an Assignment and Assumption of Real Estate Purchase and Sale
Agreement in the form of Exhibit O attached hereto. Subject to the foregoing, this Agreement
shall inure to the benefit of, and shall be binding upon, Seller and Buyer and their respective
successors and assigns.
ARTICLE 11
BROKERS
Buyer and Seller represent to each other that they have dealt with no broker or other
24
person in connection with the sale of the Property in any manner which might give rise to any
claim for commission. No broker or person is entitled to receive any broker's commissions,
finder's fees, or similar compensation from Seller in connection with any aspect of the
transaction contemplated herein. It is agreed that if any claims for brokerage commissions or
fees are ever made against Seller or Buyer in connection with this transaction, all such claims
shall be handled and paid by the party whose actions or alleged commitments form the basis of
such claim, and said party who is responsible shall indemnify and hold the other party harmless
against any claim for brokerage or finder's fees, or other like payment based in any way upon
agreements, arrangements, or understandings made or claimed to have been made by Buyer or
Seller with any third person. This provision shall survive the Closing or other termination of this
Agreement.
ARTICLE 12
COVENANT NOT TO RECORD
Buyer will not record this Agreement or any memorandum or other evidence thereof.
Any such recording shall constitute a default hereunder on the part of Buyer.
ARTICLE 13
DEFAULT
In the event of a default by either Seller or Buyer, the remedies for default provided
for in this Article 13 shall constitute the sole and exclusive remedies of the other party.
13.1 Default by Buyer.
(a) If Buyer fails to timely deposit the Earnest Money as required herein, this
Agreement shall automatically terminate and both parties shall be released of all further
liability hereunder, except for the obligations hereunder which expressly survive the
termination of this Agreement.
(b) In the event of any other default on the part of Buyer, other than as set forth
in Section 13.1(a) above, including, but not limited to Buyer's failure to consummate the
Closing on the Closing Date, Seller shall have the right, but not the obligation, provided
Buyer has failed to cure such default within five (5) business days following written notice
being delivered to Buyer by Seller, and provided Seller is not in default of its obligations
under this Agreement, to terminate this Agreement and retain all Earnest Money
(including all interest earned thereon) as liquidated damages, in which event, both parties
shall be released of all further liability hereunder, except for the obligations hereunder
which expressly survive the termination of this Agreement. The Earnest Money amount is
agreed upon by both parties as liquidated damages, acknowledging the difficulty and
inconvenience of ascertaining and measuring actual damages. Notwithstanding the
foregoing, Buyer and Seller agree that nothing contained herein shall limit Seller's right to
seek and obtain damages from Buyer due to Buyer defaulting in its obligations hereunder
which expressly survive the termination of this Agreement.
25
13.2 Default by Seller. In the event of any default by Seller, provided Seller has
failed to cure such default within five (5) business days following written notice being
delivered to Seller by Buyer, and provided Buyer is not in default of its obligations under
this Agreement, Buyer, as Buyer’s sole and exclusive remedies (Buyer hereby waiving all
other remedies), may elect either (subject to the limitations in Section 3.1(a) hereof): (i) to
terminate this Agreement and receive reimbursement of the Earnest Money (including all
interest earned thereon) as liquidated damages, in which event both parties shall be
released of all further liability hereunder, except for the obligations hereunder which
expressly survive the termination of this Agreement; or (ii) to file, within thirty (30) days of
the Closing Date, an action for specific performance of Seller’s express obligations
hereunder, without abatement of, credit against, or reduction in the Purchase Price.
Notwithstanding the foregoing, if the remedy of specific performance is not available
because Seller has conveyed the Property in violation of this Agreement, then Purchaser
shall have the right to pursue any and all remedies available at law or in equity. Neither
Escrow Holder nor Seller shall be obligated to return the Earnest Money (including all
interest thereon) to Buyer unless Buyer gives Seller and Escrow Holder written notice
terminating all of Buyer’s interest in the Property and this Agreement; provided, however,
that failure of Buyer to give Seller such notice shall not be construed to expand Buyer’s
rights or remedies in any manner. Notwithstanding the foregoing, Buyer and Seller agree
that nothing contained herein shall limit Buyer's right to seek and obtain damages from
Seller due to Seller defaulting in its obligations hereunder which expressly survive the
termination of this Agreement.
ARTICLE 14
NON-DEFAULT TERMINATION
In the event of any termination of this Agreement pursuant to a provision expressly
stating that the provisions of this Article are applicable, the following provisions shall apply:
(a) except for those obligations which expressly survive termination of this
Agreement, neither Buyer nor Seller shall have any further obligations hereunder;
and
(b) upon satisfaction of all of Buyer's monetary obligations under this Agreement, the
Earnest Money (including interest earned thereon) shall be returned to Buyer
upon Seller's receipt of written notice from Buyer expressly acknowledging the
termination of all of Buyer's interest in the Property and this Agreement;
provided, however, that failure of Buyer to give Seller such notice shall not be
construed to expand Buyer's rights or remedies in any manner. Buyer agrees that
upon any termination of this Agreement contemplated hereunder, Buyer shall
destroy any and all materials provided to Buyer by Seller or Seller's agents and
any copies made by Buyer or Buyer's agent pursuant to this Agreement.
ARTICLE 15
INDEMNITIES
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15.1 Seller Indemnity.
(a) If Closing occurs, effective as of the Closing Date, subject to Subsection (c)
below, Seller shall indemnify, defend and hold Buyer harmless from and against any
actual, direct damages (and reasonable attorneys’ fees and other reasonable legal costs)
incurred by Buyer within six (6) months of the Closing Date (the “Limitation Period”)
resulting from an inaccuracy as of the Closing Date in the representations and warranties
of Seller set forth in Section 3.1 hereof (subject to the limitation in Section 3.1 hereof and
as updated at Closing pursuant to Exhibit H), of which inaccuracy Buyer had no
knowledge of on or before the Closing Date.
(b) If Closing occurs, effective as of the Closing Date, subject to Subsection (c)
below, Seller shall indemnify, defend and hold Buyer harmless from and against any
actual, direct damages (but not for any attorneys’ fees and other legal costs incurred by
Buyer if Seller or its insurer shall conduct the defense) incurred by Buyer with respect to
a claim which is made by a third party prior to the expiration of the Limitation Period (i)
alleging a tort committed by Seller prior to the Closing Date or (ii) alleging bodily injury
or property damage related to the Property caused by Seller and occurring before the
Closing Date; provided that any such claim in clause (i) and/or (ii) does not arise out of
or in any way relate to Hazardous Material or Indoor Air Pollutants.
(c) Such agreements by Seller in Sections 15.1(a) and (b) to so indemnify, defend
and hold Buyer harmless shall be null and void except to the extent that, prior to the
expiration of the Limitation Period, Seller shall have received notice from Buyer
referring to this Section 15.1 and specifying the amount, nature, and facts underlying any
claim being made by Buyer hereunder. Notwithstanding anything to the contrary
contained in this Agreement, Seller’s aggregate liability under this Section 15.1 shall be
limited to damages, which, in the aggregate (i) exceed Fifty Thousand Dollars
($50,000.00) and (ii) are less than Five Million Eight Hundred Thousand Dollars
($5,800,000.00). In no event shall Seller be liable for consequential, punitive and/or
exemplary damages of any nature whatsoever.
15.2 Buyer Indemnity.
(a) If Closing occurs, effective as of the Closing Date, subject to Subsection (c)
below, Buyer shall indemnify, defend and hold Seller harmless from and against any
actual, direct damages (and reasonable attorneys’ fees and other reasonable legal costs)
incurred by Seller within the Limitation Period resulting from an inaccuracy as of the
Closing Date in the representations and warranties of Buyer set forth in Section 3.3
hereof (updated at Closing pursuant to Exhibit I), of which inaccuracy Seller had no
knowledge of on or before the Closing Date.
(b) If Closing occurs, effective as of the Closing Date, subject to Subsection (c)
below, Buyer shall indemnify, defend and hold Seller harmless from and against any
actual, direct damages (but not for any attorneys’ fees and other legal costs incurred by
27
Seller if Buyer or its insurer shall conduct the defense) incurred by Seller with respect to
a claim which is made by a third party prior to the expiration of the Limitation Period (i)
alleging a tort committed by Buyer or (ii) alleging bodily injury or property damage
related to the Property occurring on or after the Closing Date; provided that any such
claim in clause (i) and/or (ii) does not arise out of or in any way relate to Hazardous
Material.
(c) Such agreements by Buyer in Sections 15.2(a) and (b) to so indemnify, defend
and hold Seller harmless shall be null and void except to the extent that, prior to the
expiration of the Limitation Period, Buyer shall have received notice from Seller pursuant
to Article 9 hereof referring to this Section 15.2 and specifying the amount, nature, and
facts underlying any claim being made by Seller hereunder. Notwithstanding anything to
the contrary contained in this Agreement, Buyer’s aggregate liability under this
Section 15.2 shall be limited to damages, which, in the aggregate (i) exceed Fifty
Thousand Dollars ($50,000.00) and (ii) are less than Five Million Eight Hundred
Thousand Dollars ($5,800,000.00). In no event shall Buyer be liable for consequential,
punitive and/or exemplary damages of any nature whatsoever.
15.3 Release. Except with respect to Seller's indemnification obligations set forth in
Section 15.1 hereof, Buyer, for itself and any of its designees, successors and assigns, hereby
irrevocably and absolutely waives, releases, and forever discharges, and covenants not to file or
otherwise pursue any legal action (whether based on contract, statutory rights, common law or
otherwise) against, the Indemnified Parties with respect to any and all suits, claims, damages,
losses, causes of action, and all other expenses and liabilities relating to this Agreement or the
Property, whether direct or indirect, known or unknown, contingent or otherwise (including,
without limitation, suits, claims, damages, losses, causes of action, and all other expenses and
liabilities relating to the physical condition of the Property or any portion thereof, latent or
patent defects and/or construction defects, environmental laws and/or the presence of Hazardous
Materials or Indoor Air Pollutants), foreseeable or unforeseeable, and whether relating to any
period of time either before or after the Closing Date. Buyer further hereby assumes the risk of
changes in applicable laws and regulations relating to past, present and future environmental,
safety or health conditions on, or resulting from the ownership or operation of, the Property, and
the risk that adverse physical characteristics and conditions, including without limitation the
presence of Hazardous Material or other substances, may not be revealed by its investigation. In
connection with this Section 15.3, Buyer hereby expressly waives the benefits of any provision
or principle of federal or state law, or regulation that may limit the scope or effect of the
foregoing waiver and release to the extent permitted by applicable law.
15.4 Survival. All of the provisions of this Article 15 shall survive the Closing subject
to the limitations set forth in this Article.
ARTICLE 16
MISCELLANEOUS
16.1 Survival of Representations, Covenants, and Obligations. Except as otherwise
expressly provided herein, no representations, covenants, or obligations contained herein shall
28
survive Closing or termination of this Agreement.
16.2 Attorneys' Fees. In the event of any litigation between the parties hereto
concerning this Agreement, the subject matter hereof or the transactions contemplated hereby,
the losing party shall pay the reasonable attorneys' fees and costs incurred by the prevailing party
in connection with such litigation, including appeals.
16.3 Disclosure. Buyer will not directly or indirectly contact the Property's vendors or
contractors until after Closing occurs. No party may make public disclosure with respect to this
transaction (including the identity of the Seller without Seller's prior written consent) before the
Closing except:
(a) as may be required by law, including without limitation disclosure required
under securities laws, or by the Securities and Exchange Commission, or by the rules of any
stock exchange;
(b) to such title insurance companies, lenders, attorneys, accountants, partners,
directors, officers, employees and representatives of any party or of such party’s advisors who
need to know such information for the purpose of evaluating and consummating the transaction,
including the financing of the transaction; and
(c) to present or prospective sources of financing.
16.4 Captions. The headings or captions in this Agreement are for convenience only,
are not a part of this Agreement, and are not to be considered in interpreting this Agreement.
16.5 Waiver. No waiver by any party of any breach hereunder shall be deemed a
waiver of any other or subsequent breach.
16.6 Time. Time is of the essence with regard to each provision of this Agreement. If
the final date of any period provided for herein for the performance of an obligation or for the
taking of any action falls on a Saturday, Sunday, or national/banking holiday, then the time of
that period shall be deemed extended to the next day which is not a Saturday, Sunday, or
national/banking holiday. If the Closing Date provided for herein should fall on a Friday,
Saturday, Sunday, or national/banking holiday, then the Closing Date shall be deemed extended
to the next day which is not a Friday, Saturday, Sunday, or national/banking holiday. Each and
every day described herein shall be deemed to end at 5:00 p.m. Central Time.
16.7 Controlling Law. This Agreement shall be construed in accordance with the
laws of the state in which the Property is located.
16.8 Severability. If any one or more of the provisions of this Agreement shall be
determined to be void or unenforceable by a court of competent jurisdiction or by law, such
determination will not render this Agreement invalid or unenforceable, and the remaining
provisions hereof shall remain in full force and effect.
16.9 Construction. Buyer and Seller agree that each party and its counsel have
29
reviewed, and if necessary, revised this Agreement, and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments, exhibits, or schedules hereto.
16.10 Like-Kind Exchange.
16.10.1 Assignment of Rights to Qualified Intermediary. Seller or Buyer may
transfer the Property as part of a forward like-kind exchange pursuant to Section 1031 of the
Internal Revenue Code of 1986 and the regulations promulgated thereunder, as amended, or as a
reverse like-kind exchange under Revenue Procedure 2000-37 ("Exchange"). Accordingly,
Seller or Buyer may assign its rights to this Agreement to a third party ("Qualified
Intermediary") and Seller and Buyer hereby consent to such assignment; provided, however, that
such assignment shall not (i) constitute an assumption by Qualified Intermediary of Seller’s or
Buyer's obligations hereunder, (ii) release Seller or Buyer of any of its obligations hereunder,
(iii) diminish or affect the rights of Seller or Buyer hereunder or impose any additional expense
upon Seller or Buyer, or (iv) delay the Closing. Seller or Buyer shall execute such documents
and take such other action as may reasonably be requested for the purpose of so qualifying the
transaction contemplated by this Agreement as an Exchange.
16.10.2 Reassignment. Seller and Buyer each understand that any Qualified
Intermediary may desire (at some time after the Closing) to reassign the rights to this Agreement
to Seller or Buyer, as the case may be. Seller and Buyer hereby consent to any such
reassignment and agree that in the event of any such reassignment, Seller shall enjoy all of the
rights and privileges of the "Seller" and Buyer shall enjoy all of the rights and privileges of the
"Buyer" under this Agreement and under any documents executed in connection herewith
(including, but not limited to the right to (i) enforce the breach of any and all representations,
warranties, covenants and agreements contained in this Agreement or any other document
executed in connection herewith, (ii) enforce and to enjoy the benefit of any indemnification
obligation contained in this Agreement or any other document executed in connection herewith,
(iii) enforce and to enjoy and rely upon any and all waivers, agreements, acknowledgments,
guarantees, releases, discharges, certifications, affirmations, reaffirmations, undertakings,
approvals, admissions, and assumptions executed or undertaken by Seller or Buyer in connection
with this Agreement, any document executed in connection herewith, or the transaction
described herein, and (iv) enjoy any and all limitations upon the representations, warranties,
agreements, obligations, responsibilities, and liabilities of the Seller and Buyer under this
Agreement). Seller and Buyer further agree that in the event of any such reassignment, then the
other party shall have any and all of the rights, privileges, and remedies against or with respect to
the other party as would exist if the assignment (by Seller or Buyer to the Qualified
Intermediary) referred to in this Section 16.10.1 had never been made.
16.11 Limitations on Liability. In no event whatsoever shall recourse be had or
liability asserted against any of Buyer’s or Seller’s direct or indirect partners, policyholders,
shareholders, employees, agents, directors, trustees, officers or other owners of Buyer or Seller.
Buyer’s and Seller’s direct and indirect partners, policyholders, shareholders, beneficiaries and
owners and their respective employees, agents, directors, trustees, officers and security holders
assume no personal liability for any obligations entered into on behalf of Buyer or Seller under
this Agreement or any document executed by Buyer or Seller and delivered to the other party at
30
Closing. This provision shall survive the Closing or any termination of this Agreement.
16.12 Execution. This Agreement, any amendments or modifications hereto, and any
documents contemplated hereunder may be executed in counterparts, each of which, when
combined, shall constitute one single, binding agreement. A copy of the original fully executed
document shall have the same force and effect as the original. The signature of any signatory to
this Agreement, any amendments or modifications hereto, and any documents contemplated
hereunder may be executed and delivered through the use of a facsimile transmission of the full
document with the applicable signature or by way of a PDF (Portable Document Format) as an
attachment of the full document with the applicable signature to an e-mail, in which case the
signature (whether by facsimile or PDF) on this Agreement, any amendments or modifications
hereto, and any documents contemplated hereunder shall be as effective as if an original
signature were affixed hereto or thereto and delivered.
16.13 Amendments. This Agreement may be modified, supplemented, or amended
only by a written instrument executed by Buyer and Seller.
16.14 Entire Agreement. This Agreement constitutes the entire and complete
agreement between the parties relating to the transactions contemplated hereby, and all prior or
contemporaneous agreements, understandings, representations, warranties, and statements, oral
or written, are merged herein. No representation, warranty, covenant, agreement, or condition
not expressed in this Agreement shall be binding upon the parties hereto or shall affect or be
effective to interpret, change, or restrict the provisions of this Agreement.
(Signatures contained on following pages)
IN WITNESS WHEREOF, this Agreement has been executed as of the Effective Date.
SELLER: BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, EEC, a Delaware limited liability
company, its general partner
By: NM Imperial, EEC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, EEC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, EEC, a Delaware
limited liability company, its wholly-owned
affiliate . „ /?
Its: Managing Director
(Signat res contained on following pages)
31
32
BUYER: DOC-3410 WORTH ST. MOB, LLC, a Wisconsin limited liability
company
By: Physicians Realty L.P., its Manager
By: Physicians Realty Trust, its General Partner
By:___________________________________
John T. Thomas, President & CEO
RECEIPT BY ESCROW HOLDER - EARNEST MONEY
First American Title Insurance Company shall serve as Escrow Holder pursuant to the
terms and provisions of that certain Real Estate Purchase and Sale Agreement between BCC
CANCER CENTER VENTURE, L.P., a Delaware limited partnership and DOC-3410 WORTH
ST. MOB, LLC, a Wisconsin limited liability company (the "Agreement"), and hereby
acknowledges receipt of a fully executed copy of the Agreement and the Earnest Money referred
to therein in the sum of Three Million and 00/100 Dollars ($3,000,000.00). First American Title
Insurance Company agrees to accept, hold, apply, and/or return such Earnest Money, and
disburse any funds received pursuant to the provisions of the Agreement, and otherwise comply
with the obligations of Escrow Holder as set forth in the Agreement.
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Name:
Its:
Date of receipt:
EXHIBIT A
JV333508/335195
Baylor Cancer Center
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made as of this _____ day of
___________, 2017 between BCC CANCER CENTER VENTURE, L.P., a Delaware limited
partnership ("Grantor") and DOC-3410 WORTH ST. MOB, LLC, a Wisconsin limited liability
company ("Grantee").
Grantor, in consideration of the sum of Ten ($10.00) Dollars and other good and valuable
consideration from Grantee, the receipt whereof is hereby acknowledged, does hereby grant and
convey to Grantee, its successors, and assigns, the real property situated in the County of Dallas
and State of Texas which is more particularly described on Schedule 1 hereto, together with any
appurtenances thereto, and together with any estate, right, title, interest, or claim of Grantor,
either in law or equity, to the above premises, but SUBJECT, HOWEVER, TO:
1. Real estate taxes not yet due and payable;
2. General and special assessments payable after the date hereof;
3. Liens, claims, easements, covenants, restrictions, encumbrances, and other matters of
record;
4. Zoning and other laws, ordinances, and regulations;
5. Public utility, drainage, and highway easements, whether or not of record;
6. Rights of parties in possession;
7. Encroachments and other matters which would be disclosed by an accurate survey or an
inspection of the above premises; and,
Grantor hereby covenants with Grantee, its heirs, successors, and assigns, to forever
WARRANT AND DEFEND the same against the lawful claims and demands of all persons
claiming by, through or under Grantor, but against none other.
2
IN WITNESS WHEREOF, this deed has been executed to be effective as of the day and
year first written above.
BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, LLC, a Delaware limited liability
company, its general partner
By: NM Imperial, LLC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, LLC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, LLC, a Delaware
limited liability company, its wholly-owned
affiliate
By:
Name:
Its:
Name and address of Grantee:
DOC-3410 Worth St. MOB, LLC
309 N. Water Street, Suite 500
Milwaukee, WI 53202
This instrument was prepared by James McFarland, attorney for THE NORTHWESTERN
MUTUAL LIFE INSURANCE COMPANY, 720 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202.
(Acknowledgement on following page)
3
STATE OF WISCONSIN )
) SS.
COUNTY OF MILWAUKEE )
On this _____ day of ________________, 2017, before me appeared
______________________________ who is personally to me known and known to me to be a
_____________ of Northwestern Mutual Investment Management Company, LLC, and to be the
same person who, as such officer, executed the foregoing instrument of writing in the name of
said limited liability company and duly acknowledged the execution thereof as the free act and
deed of said limited liability company as an authorized representative of The Northwestern
Mutual Life Insurance Company as sole owner of NM Imperial, LLC, as sole owner of NM
Cancer Center GP, LLC, as general partner of BCC CANCER CENTER VENTURE, L.P., a
Delaware limited partnership.
Notary Public, State of Wisconsin
My Commission expires: ________
4
SCHEDULE 1
TO
SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
PARCEL 1: (Leasehold):
Being a tract or parcel of land situated in the John Grigsby Survey, Abstract Number 495, City of
Dallas, Dallas County, Texas, and being part of Lot 1, Block A/840, BUMC CC Addition, an
Addition to the City of Dallas, according to the plat recorded in Document No. 200900003566,
Real Property Records, Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point for corner at the intersection of the southeasterly line of Worth Street
(53 foot right-of-way) and the cut-off line between said southeasterly line and the northeasterly
line of Hall Street (95 foot right-of-way at this point), said point being the most northerly west
corner of said Lot 1;
THENCE North 44 degrees 59 minutes 31 seconds East along the southeasterly line of said
Worth Street a distance of 228.54 feet to a point for corner;
THENCE South 45 degrees 00 minutes 29 seconds East departing the southeasterly line of said
Worth Street a distance of 3.07 feet to a point for corner, said point being the POINT OF
BEGINNING;
THENCE South 69 degrees 56 minutes 36 seconds East a distance of 34.91 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted green;
THENCE along said curve to the left whose chord bears South 73 degrees 45 minutes 20 seconds
East a distance of 30.93 feet, having a radius of 100.35 feet, a central angle of 17 degrees 43
minutes 51 seconds and an arc length of 31.05 feet to a point for corner at the end of said curve
to the left and the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 66 degrees 39 minutes 11 seconds
East a distance of 36.16 feet, having a radius of 175.58 feet, a central angle of 11 degrees 49
minutes 18 seconds and an arc length of 36.23 feet to a 1/2 inch iron rod with yellow plastic cap
stamped "RLG INC" set for corner at the end of said curve to the left;
THENCE North 29 degrees 15 minutes 29 seconds West a distance of 23.91 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the left;
THENCE along said curve to the left whose chord bears North 46 degrees 02 minutes 01 second
East a distance of 77.02 feet, having a radius of 151.67 feet, a central angle of 29 degrees 25
minutes 03 seconds and an arc length of 77.87 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
5
THENCE South 58 degrees 40 minutes 30 seconds East a distance of 31.35 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 20 degrees 31 minutes 19 seconds
East a distance of 68.61 feet, having a radius of 183.02 feet, a central angle of 21 degrees 36
minutes 25 seconds and an arc length of 69.02 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left and the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 17 degrees 53 minutes 26 seconds
West a distance of 2.87 feet, having a radius of 119.50 feet, a central angle of 1 degree 22
minutes 37 seconds and an arc length of 2.87 feet to a point for corner at the end of said curve to
the left;
THENCE South 71 degrees 06 minutes 48 seconds West a distance of 4.84 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 17 degrees 08 minutes 39
seconds East a distance of 5.69 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 39 seconds and an arc length of 5.69 feet to a point for corner at the end of said curve
to the right;
THENCE South 74 degrees 16 minutes 41 seconds West a distance of 2.00 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 27 degrees 40 minutes 54 seconds
West a distance of 46.69 feet, having a radius of 112.66 feet, a central angle of 23 degrees 55
minutes 11 seconds and an arc length of 47.03 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
THENCE North 50 degrees 21 minutes 30 seconds East a distance of 2.00 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 38 degrees 13 minutes 06
seconds East a distance of 5.70 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 47 seconds and an arc length of 5.70 feet to a point for corner at the end of said curve
to the right;
THENCE North 53 degrees 12 minutes 17 seconds East a distance of 5.09 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 40 degrees 09 minutes 33 seconds
West a distance of 14.06 feet, having a radius of 119.78 feet, a central angle of 6 degrees 43
minutes 39 seconds and an arc length of 14.06 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
6
THENCE North 45 degrees 00 minutes 00 seconds East a distance of 25.51 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 01 minute 04 seconds East a distance of 88.31 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 3.67 feet to a point for
corner;
THENCE South 07 degrees 19 minutes 08 seconds East a distance of 2.03 feet to a point for
corner;
THENCE North 78 degrees 31 minutes 09 seconds East a distance of 8.48 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to the
right;
THENCE along said curve to the right whose chord bears South 07 degrees 59 minutes 46
seconds East a distance of 21.41 feet, having a radius of 176.86 feet, a central angle of 6 degrees
56 minutes 30 seconds and an arc length of 21.43 feet to a point for corner at the end of said
curve to the right;
THENCE North 85 degrees 32 minutes 47 seconds East a distance of 19.49 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the right;
THENCE along said curve to the right whose chord bears South 00 degrees 10 minutes 30
seconds West a distance of 31.96 feet, having a radius of 198.94 feet, a central angle of 9 degrees
12 minutes 55 seconds and an arc length of 32.00 feet to a 1/2 inch iron rod with yellow plastic
cap stamped "RLG INC" set for corner at the end of said curve to the right;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 191.26 feet to a point for
corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 91.82 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 29.33 feet to a chiseled "X"
in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 36.85 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE North 45 degrees 00 minutes 00 seconds West a distance of 46.83 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
7
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 56.31 feet to a point for
corner;
THENCE South 34 degrees 38 minutes 35 seconds East a distance of 7.79 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted white;
THENCE along said curve to the right whose chord bears South 55 degrees 16 minutes 01
second West a distance of 0.61 feet, having a radius of 336.75 feet, a central angle of 0 degrees
06 minutes 12 seconds and an arc length of 0.61 feet to a point for corner at the end of said curve
to the right;
THENCE South 34 degrees 52 minutes 57 seconds East a distance of 58.43 feet to a point for
corner;
THENCE South 05 degrees 13 minutes 28 seconds West a distance of 9.86 feet to a 1/2 inch iron
rod set for corner, said rod being in the northwesterly line of Crutcher Street (53 foot right-of-
way);
THENCE South 45 degrees 00 minutes 06 seconds West along the northwesterly line of said
Crutcher Street a distance of 122.22 feet to a 1/2 inch iron rod set for corner at the beginning of a
curve to the left;
THENCE departing the northwesterly line of said Crutcher Street and along said curve to the left
whose chord bears South 84 degrees 10 minutes 42 seconds West a distance of 201.74 feet,
having a radius of 1861.77 feet, a central angle of 6 degrees 12 minutes 42 seconds and an arc
length of 201.84 feet to a 1/2 inch iron rod set for corner at the end of said curve to the left, said
rod being in the northeasterly line of said Hall Street;
THENCE North 44 degrees 29 minutes 29 seconds West along the northeasterly line of said Hall
Street a distance of 42.22 feet to a point for corner;
THENCE North 45 degrees 30 minutes 31 seconds East departing the northeasterly line of said
Hall Street a distance of 1.50 feet to a 1/2 inch iron rod set for corner;
THENCE North 44 degrees 29 minutes 28 seconds West a distance of 173.18 feet to a 1/2 inch
iron rod set for corner;
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 14.84 feet to a point for
corner;
THENCE North 34 degrees 16 minutes 26 seconds East a distance of 47.10 feet to a chiseled "X"
in concrete set for corner, said "X" painted green;
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 23.74 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted green;
8
THENCE along said curve to the right whose chord bears North 45 degrees 10 minutes 52
seconds East a distance of 50.40 feet, having a radius of 174.88 feet, a central angle of 16
degrees 34 minutes 13 seconds and an arc length of 50.58 feet to a chiseled "X" in concrete set
for corner at the end of said curve to the right and the beginning of a curve to the left, said "X"
painted green;
THENCE along said curve to the left whose chord bears North 41 degrees 29 minutes 53 seconds
East a distance of 40.10 feet, having a radius of 90.74 feet, a central angle of 25 degrees 31
minutes 56 seconds and an arc length of 40.43 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted green;
THENCE North 28 degrees 43 minutes 59 seconds East a distance of 59.47 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 04 degrees 31 minutes 36 seconds
West a distance of 17.04 feet, having a radius of 15.21 feet, a central angle of 68 degrees 08
minutes 29 seconds and an arc length of 18.09 feet to the POINT OF BEGINNING, containing
150,354 square feet or 3.4517 acres, more or less.
SAVE AND EXCEPT: Exhibit A - Tract 1 as conveyed to the City of Dallas by Warranty Deed
filed 04/15/2014, recorded in cc# 201400091381, Real Property Records, Dallas County, Texas.
PARCEL 2: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in the
Maintenance, Operation, and Easement Agreement dated July 30, 2004, between Baylor Health
Care System and HRT Properties of Texas, Ltd., filed for record August 06, 2004, and recorded
in Volume 2004151, Page 4607, Real Property Records, Dallas County, Texas, as amended by
First Amendment to Maintenance, Operation and Easement Agreement, filed 02/09/2006,
recorded in cc# 200600047697 Real Property Records, Dallas County, Texas, and as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement among Baylor Health Care System, BCC Cancer Center Venture, L.P., and HRT
Properties of Texas, Ltd., filed for record April 24, 2009, and recorded in cc# 2009-00117281,
Real Property Records, Dallas County, Texas, and the Second Declaration of Removal filed
April 15, 2014, recorded in cc# 201400091380, Real Property Records, Dallas County, Texas.
PARCEL 3: (Easement):
Non-exclusive easements contained in that certain Maintenance and Operating Agreement
between Baylor Health Care System and BCC Cancer Center Venture, L.P., filed for record
April 24, 2009, and recorded in cc# 2009-00117285, Real Property Records, Dallas County,
Texas, as amended by instrument filed April 15, 2014, recorded in cc# 201400091374, Real
Property Records, Dallas County, Texas.
PARCEL 4: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in that
Maintenance, Operation and Easement Agreement executed between Baylor Health Care System
9
and Duke Realty Limited Partnership, dated March 28, 2008, filed for record on March 05, 2009,
and recorded in cc# 200900064698, Real Property Records, Dallas County, Texas, as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement executed among Baylor Health Care System, Duke Realty Limited Partnership, and
BCC Cancer Center Venture, L.P., filed for record on April 24, 2009, and recorded in cc#
2009-00117684, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091377, Real Property Records, Dallas County, Texas.
PARCEL 5: (Easement):
Non-exclusive easement for parking and non-exclusive easement for ingress and egress for a
term co-terminus with the leasehold estate described as PARCEL 1 granted in that Parking
Facilities Agreement and that Memorandum of Parking Facilities Agreement, executed by
Baylor Health Care System and BCC Cancer Center Venture, L.P., both documents dated April
23, 2009, said Memorandum filed for record April 24, 2009, and recorded in cc# 2009-
00117286, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091375, Real Property Records, Dallas County, Texas.
PARCEL 6: (Easement):
Non-exclusive easement for underground facilities created by Easement For Underground
Facilities, executed by Baylor Health Care System, a Texas nonprofit corporation, to BCC
Cancer Center Venture, L.P., filed 12/13/2010, recorded in cc# 201000316055, Real Property
Records, Dallas County, Texas.
EXHIBIT B
JV333508/335195
Baylor Cancer Center
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is made and
entered into as of the ____ day of ______________, 2017, to be effective as of the Closing Date,
by and between BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
("Assignor"), and DOC-3410 WORTH ST. MOB, LLC, a Wisconsin limited liability company
("Assignee").
RECITALS
Assignor, as Seller, and Assignee, as Buyer, entered into that certain Real Estate
Purchase and Sale Agreement (the "Agreement") with an Effective Date of June __, 2017, for the
purchase and sale of the real estate commonly known as The Baylor Charles A. Sammons
Cancer Center, which is legally described in Schedule 1 attached hereto and incorporated herein
(the "Property").
Assignor desires to assign the rights, and Assignee desires to assume, the duties,
obligations, and liabilities, of Assignor as landlord under the leases described on Schedule 2
attached hereto and incorporated herein (the "Leases"), to be effective upon the closing of the
sale contemplated under the terms of the Agreement.
All capitalized terms used in this Assignment without separate definition shall have the
same meanings assigned to them in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals set forth above, which are made a
part of this Assignment, the mutual covenants hereinafter contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Subject to the terms, covenants, conditions, and provisions of the Leases
and this Assignment, Assignor hereby transfers, conveys, and assigns to Assignee all of its right,
title, and interest as landlord in, to and under the Leases, and the security deposits under the
Leases held by Assignor (the "Security Deposits").
2. Assignee hereby accepts the transfer, conveyance, and assignment of the
Leases and Security Deposits from Assignor and, subject to the terms of the Agreement, assumes
all rights, duties, obligations, and liabilities of Assignor under the Leases accruing from and after
the Closing (as defined in the Agreement).
3. This Assignment shall not merge with or limit or restrict any provision of
the Agreement, and the provisions of the Agreement shall govern and control the rights and
2
obligations of Assignor and Assignee with respect to all matters described therein, including,
without limitation, representations and warranties, the apportionment of payment obligations,
and indemnification obligations.
4. This Assignment shall be binding upon and shall inure to the benefit of
Assignor, Assignee, and their respective legal representatives, [heirs], successors, and assigns.
5. This Assignment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of
the day and year first above written.
ASSIGNOR: BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, LLC, a Delaware limited liability
company, its general partner
By: NM Imperial, LLC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, LLC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, LLC, a Delaware
limited liability company, its wholly-owned
affiliate
By:
Name:
Its:
ASSIGNEE: DOC-3410 WORTH ST. MOB, LLC, a Wisconsin limited liability
company
By: Physicians Realty L.P., its Manager
By: Physicians Realty Trust, its General Partner
By:___________________________________
John T. Thomas, President & CEO
3
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION OF LEASES
LEGAL DESCRIPTION
PARCEL 1: (Leasehold):
Being a tract or parcel of land situated in the John Grigsby Survey, Abstract Number 495, City of
Dallas, Dallas County, Texas, and being part of Lot 1, Block A/840, BUMC CC Addition, an
Addition to the City of Dallas, according to the plat recorded in Document No. 200900003566,
Real Property Records, Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point for corner at the intersection of the southeasterly line of Worth Street
(53 foot right-of-way) and the cut-off line between said southeasterly line and the northeasterly
line of Hall Street (95 foot right-of-way at this point), said point being the most northerly west
corner of said Lot 1;
THENCE North 44 degrees 59 minutes 31 seconds East along the southeasterly line of said
Worth Street a distance of 228.54 feet to a point for corner;
THENCE South 45 degrees 00 minutes 29 seconds East departing the southeasterly line of said
Worth Street a distance of 3.07 feet to a point for corner, said point being the POINT OF
BEGINNING;
THENCE South 69 degrees 56 minutes 36 seconds East a distance of 34.91 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted green;
THENCE along said curve to the left whose chord bears South 73 degrees 45 minutes 20 seconds
East a distance of 30.93 feet, having a radius of 100.35 feet, a central angle of 17 degrees 43
minutes 51 seconds and an arc length of 31.05 feet to a point for corner at the end of said curve
to the left and the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 66 degrees 39 minutes 11 seconds
East a distance of 36.16 feet, having a radius of 175.58 feet, a central angle of 11 degrees 49
minutes 18 seconds and an arc length of 36.23 feet to a 1/2 inch iron rod with yellow plastic cap
stamped "RLG INC" set for corner at the end of said curve to the left;
THENCE North 29 degrees 15 minutes 29 seconds West a distance of 23.91 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the left;
THENCE along said curve to the left whose chord bears North 46 degrees 02 minutes 01 second
East a distance of 77.02 feet, having a radius of 151.67 feet, a central angle of 29 degrees 25
minutes 03 seconds and an arc length of 77.87 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
4
THENCE South 58 degrees 40 minutes 30 seconds East a distance of 31.35 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 20 degrees 31 minutes 19 seconds
East a distance of 68.61 feet, having a radius of 183.02 feet, a central angle of 21 degrees 36
minutes 25 seconds and an arc length of 69.02 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left and the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 17 degrees 53 minutes 26 seconds
West a distance of 2.87 feet, having a radius of 119.50 feet, a central angle of 1 degree 22
minutes 37 seconds and an arc length of 2.87 feet to a point for corner at the end of said curve to
the left;
THENCE South 71 degrees 06 minutes 48 seconds West a distance of 4.84 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 17 degrees 08 minutes 39
seconds East a distance of 5.69 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 39 seconds and an arc length of 5.69 feet to a point for corner at the end of said curve
to the right;
THENCE South 74 degrees 16 minutes 41 seconds West a distance of 2.00 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 27 degrees 40 minutes 54 seconds
West a distance of 46.69 feet, having a radius of 112.66 feet, a central angle of 23 degrees 55
minutes 11 seconds and an arc length of 47.03 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
THENCE North 50 degrees 21 minutes 30 seconds East a distance of 2.00 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 38 degrees 13 minutes 06
seconds East a distance of 5.70 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 47 seconds and an arc length of 5.70 feet to a point for corner at the end of said curve
to the right;
THENCE North 53 degrees 12 minutes 17 seconds East a distance of 5.09 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 40 degrees 09 minutes 33 seconds
West a distance of 14.06 feet, having a radius of 119.78 feet, a central angle of 6 degrees 43
minutes 39 seconds and an arc length of 14.06 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
5
THENCE North 45 degrees 00 minutes 00 seconds East a distance of 25.51 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 01 minute 04 seconds East a distance of 88.31 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 3.67 feet to a point for
corner;
THENCE South 07 degrees 19 minutes 08 seconds East a distance of 2.03 feet to a point for
corner;
THENCE North 78 degrees 31 minutes 09 seconds East a distance of 8.48 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to the
right;
THENCE along said curve to the right whose chord bears South 07 degrees 59 minutes 46
seconds East a distance of 21.41 feet, having a radius of 176.86 feet, a central angle of 6 degrees
56 minutes 30 seconds and an arc length of 21.43 feet to a point for corner at the end of said
curve to the right;
THENCE North 85 degrees 32 minutes 47 seconds East a distance of 19.49 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the right;
THENCE along said curve to the right whose chord bears South 00 degrees 10 minutes 30
seconds West a distance of 31.96 feet, having a radius of 198.94 feet, a central angle of 9 degrees
12 minutes 55 seconds and an arc length of 32.00 feet to a 1/2 inch iron rod with yellow plastic
cap stamped "RLG INC" set for corner at the end of said curve to the right;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 191.26 feet to a point for
corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 91.82 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 29.33 feet to a chiseled "X"
in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 36.85 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE North 45 degrees 00 minutes 00 seconds West a distance of 46.83 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
6
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 56.31 feet to a point for
corner;
THENCE South 34 degrees 38 minutes 35 seconds East a distance of 7.79 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted white;
THENCE along said curve to the right whose chord bears South 55 degrees 16 minutes 01
second West a distance of 0.61 feet, having a radius of 336.75 feet, a central angle of 0 degrees
06 minutes 12 seconds and an arc length of 0.61 feet to a point for corner at the end of said curve
to the right;
THENCE South 34 degrees 52 minutes 57 seconds East a distance of 58.43 feet to a point for
corner;
THENCE South 05 degrees 13 minutes 28 seconds West a distance of 9.86 feet to a 1/2 inch iron
rod set for corner, said rod being in the northwesterly line of Crutcher Street (53 foot right-of-
way);
THENCE South 45 degrees 00 minutes 06 seconds West along the northwesterly line of said
Crutcher Street a distance of 122.22 feet to a 1/2 inch iron rod set for corner at the beginning of a
curve to the left;
THENCE departing the northwesterly line of said Crutcher Street and along said curve to the left
whose chord bears South 84 degrees 10 minutes 42 seconds West a distance of 201.74 feet,
having a radius of 1861.77 feet, a central angle of 6 degrees 12 minutes 42 seconds and an arc
length of 201.84 feet to a 1/2 inch iron rod set for corner at the end of said curve to the left, said
rod being in the northeasterly line of said Hall Street;
THENCE North 44 degrees 29 minutes 29 seconds West along the northeasterly line of said Hall
Street a distance of 42.22 feet to a point for corner;
THENCE North 45 degrees 30 minutes 31 seconds East departing the northeasterly line of said
Hall Street a distance of 1.50 feet to a 1/2 inch iron rod set for corner;
THENCE North 44 degrees 29 minutes 28 seconds West a distance of 173.18 feet to a 1/2 inch
iron rod set for corner;
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 14.84 feet to a point for
corner;
THENCE North 34 degrees 16 minutes 26 seconds East a distance of 47.10 feet to a chiseled "X"
in concrete set for corner, said "X" painted green;
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 23.74 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted green;
7
THENCE along said curve to the right whose chord bears North 45 degrees 10 minutes 52
seconds East a distance of 50.40 feet, having a radius of 174.88 feet, a central angle of 16
degrees 34 minutes 13 seconds and an arc length of 50.58 feet to a chiseled "X" in concrete set
for corner at the end of said curve to the right and the beginning of a curve to the left, said "X"
painted green;
THENCE along said curve to the left whose chord bears North 41 degrees 29 minutes 53 seconds
East a distance of 40.10 feet, having a radius of 90.74 feet, a central angle of 25 degrees 31
minutes 56 seconds and an arc length of 40.43 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted green;
THENCE North 28 degrees 43 minutes 59 seconds East a distance of 59.47 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 04 degrees 31 minutes 36 seconds
West a distance of 17.04 feet, having a radius of 15.21 feet, a central angle of 68 degrees 08
minutes 29 seconds and an arc length of 18.09 feet to the POINT OF BEGINNING, containing
150,354 square feet or 3.4517 acres, more or less.
SAVE AND EXCEPT: Exhibit A - Tract 1 as conveyed to the City of Dallas by Warranty Deed
filed 04/15/2014, recorded in cc# 201400091381, Real Property Records, Dallas County, Texas.
PARCEL 2: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in the
Maintenance, Operation, and Easement Agreement dated July 30, 2004, between Baylor Health
Care System and HRT Properties of Texas, Ltd., filed for record August 06, 2004, and recorded
in Volume 2004151, Page 4607, Real Property Records, Dallas County, Texas, as amended by
First Amendment to Maintenance, Operation and Easement Agreement, filed 02/09/2006,
recorded in cc# 200600047697 Real Property Records, Dallas County, Texas, and as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement among Baylor Health Care System, BCC Cancer Center Venture, L.P., and HRT
Properties of Texas, Ltd., filed for record April 24, 2009, and recorded in cc# 2009-00117281,
Real Property Records, Dallas County, Texas, and the Second Declaration of Removal filed
April 15, 2014, recorded in cc# 201400091380, Real Property Records, Dallas County, Texas.
PARCEL 3: (Easement):
Non-exclusive easements contained in that certain Maintenance and Operating Agreement
between Baylor Health Care System and BCC Cancer Center Venture, L.P., filed for record
April 24, 2009, and recorded in cc# 2009-00117285, Real Property Records, Dallas County,
Texas, as amended by instrument filed April 15, 2014, recorded in cc# 201400091374, Real
Property Records, Dallas County, Texas.
PARCEL 4: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in that
Maintenance, Operation and Easement Agreement executed between Baylor Health Care System
8
and Duke Realty Limited Partnership, dated March 28, 2008, filed for record on March 05, 2009,
and recorded in cc# 200900064698, Real Property Records, Dallas County, Texas, as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement executed among Baylor Health Care System, Duke Realty Limited Partnership, and
BCC Cancer Center Venture, L.P., filed for record on April 24, 2009, and recorded in cc#
2009-00117684, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091377, Real Property Records, Dallas County, Texas.
PARCEL 5: (Easement):
Non-exclusive easement for parking and non-exclusive easement for ingress and egress for a
term co-terminus with the leasehold estate described as PARCEL 1 granted in that Parking
Facilities Agreement and that Memorandum of Parking Facilities Agreement, executed by
Baylor Health Care System and BCC Cancer Center Venture, L.P., both documents dated April
23, 2009, said Memorandum filed for record April 24, 2009, and recorded in cc# 2009-
00117286, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091375, Real Property Records, Dallas County, Texas.
PARCEL 6: (Easement):
Non-exclusive easement for underground facilities created by Easement For Underground
Facilities, executed by Baylor Health Care System, a Texas nonprofit corporation, to BCC
Cancer Center Venture, L.P., filed 12/13/2010, recorded in cc# 201000316055, Real Property
Records, Dallas County, Texas.
SCHEDULE 2
TO
ASSIGNMENT AND ASSUMPTION OF LEASES
LIST OF LEASES
1. Space Lease dated April 23, 2009 by and between BCC Cancer Center Venture, L.P., a
Delaware limited partnership and Baylor Health Care System, a Texas non-profit
corporation.
a. First Amendment to Space Lease dated October 25, 2011.
b. Second Amendment to Space Lease dated March 18, 2014.
c. Sublease Agreement dated August ___, 2013 by and between Baylor Health Care
System, a Texas non-profit corporation and Baylor Research Institute, a Texas
non-profit corporation.
2. Office Lease dated April 8, 2011 by and between BCC Cancer Center Venture, L.P., a
Delaware limited partnership and US Oncology, Inc., a Delaware corporation for Suite
160.
3. Office Lease dated April 8, 2011 by and between BCC Cancer Center Venture, L.P., a
Delaware limited partnership and US Oncology, Inc., a Delaware corporation for 154,927
square feet on floor 1 and floor 3 of the Property.
a. First Amendment to Office Lease dated July 7, 2011.
b. Letter Agreement dated July 7, 2011 regarding access to the Isolated Space, as
defined therein.
c. Sublease dated August ___, 2013 by and between US Oncology, Inc., a Delaware
corporation and Baylor University Medical Center, a Texas nonprofit corporation.
EXHIBIT C
EXISTING ENVIRONMENTAL REPORTS
1. Environmental Site Assessment prepared by Rone Engineering Services, Ltd. ("Rone")
dated November 2007 bearing Rone Project No. 07-13655
2. Draft Report of Environmental Site Assessment prepared by AMEC Earth &
Environmental, Inc. dated November 2008 bearing AMEC Project No. 7-6982-0011.
3. Phase 2 Subsurface Investigation prepared by Rone dated January 2009 bearing Rone
Project No. 08-14934
4. Evaluation of Environmental Conditions at Baylor Site prepared by AMEC Geomatrix,
Inc. ("AMEC") dated February 13, 2009.
5. Undated Soil Management Plan prepared by AMEC for Proposed The Baylor Charles A.
Sammons Cancer Center Parking Structure.
6. Site Overview prepared by AMEC dated March 4, 2009 bearing Project No.
A00071.000.0.
7. Texas Commission on Environmental Quality ("TCEQ") Core Data Form executed April
6, 2009
8. One Page TCEQ Voluntary Cleanup Program Agreement stamped Received by TCEQ on
April 14, 2009, bearing the markings of "dlc 8:45 am".
9. VCP Application to TCEQ bearing Project number 34452 stamped Received by TCEQ
on April 14, 2009.
10. VCP Acceptance letter from TCEQ dated April 14, 2009.
11. VCP Meeting Minutes dated April 17, 2009.
12. Response Action Completion Report prepared by AMEC dated October 2009 bearing
VCP No. 2259 and Project No. A00071.000.
13. Affected Property Assessment Report prepared by AMEC dated October 2009 bearing
VCP No. 2259 and Project No. A00071.000.
14. Response to Comments prepared by AMEC dated January 12, 2010 bearing Project No.
A00071.000.0.
15. VCP Final Certificate of Completion from TCEQ executed August 5, 2010.
2
EXHIBIT D
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
EXHIBIT E
JV333508/335195
Baylor Cancer Center
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes
(including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real
property interest under local law) will be the transferor of the property and not the disregarded
entity. To inform the transferee that withholding of tax is not required upon the disposition of a
U.S. real property interest by The Northwestern Mutual Life Insurance Company ("Company"),
the undersigned hereby certifies the following on behalf of Company:
1. The Company is a Wisconsin corporation and is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2. The Company's U.S. employer identification number is 39-0509570; and
3. The Company's home office address is 720 East Wisconsin Avenue, Milwaukee,
WI 53202.
4. The Northwestern Mutual Life Insurance Company is not a disregarded entity as
defined in 26 C.F.R. section 1.1445-2(b)(2)(iii).
The Company understands that this certification may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalty of perjury, I declare that I have examined this certificate and to the best of
my knowledge and belief, it is true, correct, and complete, and I further declare that I have
authority to sign this document on behalf of Company.
2
Dated as of the ____ day of __________________, 20__.
COMPANY: THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation
By: Northwestern Mutual Investment Management
Company, LLC, a Delaware limited liability
company, its wholly-owned affiliate
By:
Name:
Its: Managing Director
JV333508/335195
Baylor Cancer Center
EXHIBIT F
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
NORTHWESTERN MUTUAL INVESTMENT MANAGEMENT COMPANY, LLC
CERTIFICATE OF ASSISTANT SECRETARY
The undersigned, as Assistant Secretary of The Northwestern Mutual Life Insurance
Company, a Wisconsin corporation (“Northwestern Mutual”), and of Northwestern Mutual
Investment Management Company, LLC, a Delaware limited liability company (the “Manager”),
whose sole member is Northwestern Mutual, hereby certifies to you as follows:
1. Section 2.6 of the By-Laws of Northwestern Mutual grants to the Finance Committee of
Northwestern Mutual the power and authority to exercise all of the powers of the Board of
Trustees of Northwestern Mutual in regard to the assets and investments of Northwestern
Mutual including, without limitation, “the power directly or by delegation to do all such
acts and things as it may deem necessary and proper to (i) establish [Northwestern
Mutual's] financial and investment policy, (ii) invest, reinvest, manage, select, sell and
otherwise dispose of [Northwestern Mutual's] assets...”
2. By resolutions adopted on October 13, 2014, the Finance Committee of Northwestern
Mutual approved execution of, and Northwestern Mutual is currently party to, an
Investment Management Agreement dated January 1, 2015 between, inter alia,
Northwestern Mutual, The Northwestern Mutual Life Insurance Company for its Group
Annuity Separate Account, and the Manager (the “Investment Management Agreement”),
pursuant to which the Manager supervises, manages and directs the investments in
Northwestern Mutual’s investment portfolio in accordance with the written investment
objectives, policies and restrictions of Northwestern Mutual provided to the Manager, and
is duly appointed “as the true and lawful attorney of Northwestern Mutual for and in the
name, place and stead of Northwestern Mutual, in the Manager's unrestricted discretion
… to do and perform all and every act and thing whatsoever requisite in furtherance of
this Agreement, including the execution of all documents related to the purchase or sale,
origination, owning, holding, financing, pledging, mortgaging, managing, servicing,
operation, maintenance, improvement, development, re-development, rehabilitation, lease,
exchange, assignment, transfer, management and ownership” of Northwestern Mutual’s
invested assets.
3. By resolutions adopted on January 24, 2017, the Finance Committee of Northwestern
Mutual approved an Investment Policy Statement for Northwestern Mutual (the “NML
IPS”) pursuant to which from time to time “the Chief Investment Officer of [Northwestern
Mutual] may delegate certain of his or her investment authority to the Manager as the
CIO may deem appropriate…and…the Manager may further sub-delegate their respective
investment authority as may deem appropriate”.
2
4. Pursuant to the NML, IPS the CIO has delegated certain of his investment authority to the
Vice President-Real Estate of the Manager and the Vice President -Real Estate of the
Manager has further sub-delegated his authority and has authorized certain officers and
employees of the Manager to execute and deliver any and all instruments, agreements and
other documents in performance of the Manager’s duties under the NML IPS and the
Investment Management Agreement.
5. Pursuant to the By-Laws, resolutions, NML IPS and agreements of Northwestern Mutual
and Manager and delegations of the Vice President-Real Estate of the Manager referred to
in this certificate, the sale of the property commonly known as The Baylor Charles A.
Sammons Cancer Center, located in Dallas, Texas, and assigned Northwestern Mutual 's
investment numbers JV-333508/335195 has been duly authorized and approved.
6. Philip Natkins is the Investment Manager of the Property and in such capacity has the
authority to sign the closing statement for the sale of the Property.
7. Each of the persons named on attached Exhibit A hereto (by name and title) is on the date
hereof the duly elected, qualified and acting incumbent of the office of the Manager set
forth opposite such person’s name, the signature set forth opposite the name is the genuine
signature of such person, and such person is duly authorized and empowered to execute all
instruments, agreements and other documents on behalf of the Manager in its capacity as
the manager under the Investment Management Agreement and as authorized pursuant to
the NML IPS.
8. The By-Laws, resolutions, agreements of Northwestern Mutual and Manager, the NML
IPS and delegations of the CIO and the Vice President-Real Estate of the Manager
referred to in this certificate have not been rescinded and remain in full force and effect as
of the date hereof.
IN WITNESS WHEREOF, I have hereunto affixed my name as Assistant Secretary of
Northwestern Mutual and of the Manager, and caused this certificate to be delivered this
_______ day of _______________, 2017.
________________________________
_________________, Assistant Secretary,
The Northwestern Mutual Life Insurance
Company and Northwestern Mutual
Investment Management Company, LLC
3
STATE OF WISCONSIN )
) ss.
COUNTY OF MILWAUKEE )
Before me, a Notary Public in and for said County, personally appeared
_________________________, as Assistant Secretary of The Northwestern Mutual Life
Insurance Company, a Wisconsin corporation, and as Assistant Secretary of Northwestern
Mutual Investment Management Company, LLC, a Delaware limited liability company, and that
by authority duly given and as the act of such entities, executed the foregoing instrument.
WITNESS my hand and official seal this _______ day of _______________, ________.
___________________________________
___________________________
Notary Public, State of Wisconsin
My commission Expires: ____________
4
EXHIBIT A
TO
CERTIFICATE OF ASSISTANT SECRETARY
Thomas D. Zale Vice President-Real Estate of ________________________
Manager
Michael P. Cusick Managing Director-Real Estate ________________________
of Manager
Paul J. Hanson Managing Director-Real Estate ________________________
of Manager
Joseph Miller Managing Director-Real Estate ________________________
of Manager
Donna L. Lemanczyk Managing Director-Real Estate ________________________
of Manager
Christina M. Misiti-Eskritt Managing Director-Real Estate ________________________
of Manager
Daniel C. Knuth Director- Real Estate of Manager ________________________
Walter N. Smith Director- Real Estate of Manager ________________________
EXHIBIT G
JV333508/335195
Baylor Cancer Center
BILL OF SALE
BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership, with its
principal office located at 720 East Wisconsin Avenue, Milwaukee, Wisconsin 53202 ("Seller"), in
consideration of the sum of Ten and no/100 Dollars ($10.00) and other good and valuable
consideration, to it in hand paid by DOC-3410 WORTH ST. MOB, LLC, a Wisconsin limited
liability company ("Buyer"), the receipt and sufficiency of which is hereby acknowledged, sells to
Buyer its interest in the name "The Baylor Charles A. Sammons Cancer Center" as it relates to the
operation of the Property and the personal property described on Schedule 1 attached hereto which is
located on the land described on Schedule 2 attached hereto.
SELLER MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF CONDITION,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
IN WITNESS WHEREOF, Seller has executed this instrument as of June _____, 2017 to be
effective as of the Closing Date. All capitalized terms used, but not defined herein, shall have the
meanings ascribed to them in that certain Real Estate Purchase and Sale Agreement with an Effective
Date of June _____, 2017 between Seller and Buyer.
BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, LLC, a Delaware limited liability
company, its general partner
By: NM Imperial, LLC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, LLC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, LLC, a Delaware
limited liability company, its wholly-owned
affiliate
By:
Name:
Its:
6
SCHEDULE 1
TO
BILL OF SALE
PERSONAL PROPERTY
BCC Management Office (PPT)
File Listing Report
Book = Tax
FYE Month = December
Sys P Depr Acquired
No Description Location T Meth Value
000012 Tool Box
000 3410 Worth St. P MF200 $ 300.00
000014 Hand Tools
000 3410 Worth St. P MF200 1,600.00
000015 Ladders
000 3410 Worth St. P MF200 450.00
000017 Power Washer
000 3410 Worth St. P MF200 250.00
000001 Conference Tables (2)
000 3410 Worth St. P MF200 1,500.00
000002 Chairs (15)
000 3410 Worth St. P MF200 1,500.00
000003 Desks (7)
000 3410 Worth St. P MF200 4,560.00
000010 Phones (3)
000 3410 Worth St. P MF200 375.00
000013 Book Shelves (2)
000 3410 Worth St. P MF200 300.00
000016 Refrigerator
000 3410 Worth St. P MF200 150.00
000018 Light Bulb Cart
000 3410 Worth St. P MF200 350.00
000019 Black Glass Erasable Board
000 3410 Worth St. P MF200 500.00
7
000004 Computer, Monitor, Keyboard
000 3410 Worth St. P MF200 1,000.00
000005 Computer, Monitor, Keyboard
000 3410 Worth St. P MF200 1,000.00
000006 Computer, Monitor, Keyboard
000 3410 Worth St. P MF200 1,000.00
000007 Computer, Monitor, Keyboard
000 3410 Worth St. P MF200 1,000.00
000008 Computer, Monitor, Keyboard
000 3410 Worth St. P MF200 1,000.00
000009 Computer, Monitor, Keyboard
000 3410 Worth St. P MF200 1,000.00
000011 Printers (3)
000 3410 Worth St. P MF200 375.00
Grand
Total
$ 18,210.00
Count = 19
SCHEDULE 2
TO
BILL OF SALE
LEGAL DESCRIPTION
PARCEL 1: (Leasehold):
Being a tract or parcel of land situated in the John Grigsby Survey, Abstract Number 495, City of
Dallas, Dallas County, Texas, and being part of Lot 1, Block A/840, BUMC CC Addition, an
Addition to the City of Dallas, according to the plat recorded in Document No. 200900003566,
Real Property Records, Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point for corner at the intersection of the southeasterly line of Worth Street
(53 foot right-of-way) and the cut-off line between said southeasterly line and the northeasterly
line of Hall Street (95 foot right-of-way at this point), said point being the most northerly west
corner of said Lot 1;
THENCE North 44 degrees 59 minutes 31 seconds East along the southeasterly line of said
Worth Street a distance of 228.54 feet to a point for corner;
THENCE South 45 degrees 00 minutes 29 seconds East departing the southeasterly line of said
Worth Street a distance of 3.07 feet to a point for corner, said point being the POINT OF
BEGINNING;
THENCE South 69 degrees 56 minutes 36 seconds East a distance of 34.91 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted green;
THENCE along said curve to the left whose chord bears South 73 degrees 45 minutes 20 seconds
East a distance of 30.93 feet, having a radius of 100.35 feet, a central angle of 17 degrees 43
minutes 51 seconds and an arc length of 31.05 feet to a point for corner at the end of said curve
to the left and the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 66 degrees 39 minutes 11 seconds
East a distance of 36.16 feet, having a radius of 175.58 feet, a central angle of 11 degrees 49
minutes 18 seconds and an arc length of 36.23 feet to a 1/2 inch iron rod with yellow plastic cap
stamped "RLG INC" set for corner at the end of said curve to the left;
THENCE North 29 degrees 15 minutes 29 seconds West a distance of 23.91 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the left;
THENCE along said curve to the left whose chord bears North 46 degrees 02 minutes 01 second
East a distance of 77.02 feet, having a radius of 151.67 feet, a central angle of 29 degrees 25
minutes 03 seconds and an arc length of 77.87 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
9
THENCE South 58 degrees 40 minutes 30 seconds East a distance of 31.35 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 20 degrees 31 minutes 19 seconds
East a distance of 68.61 feet, having a radius of 183.02 feet, a central angle of 21 degrees 36
minutes 25 seconds and an arc length of 69.02 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left and the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 17 degrees 53 minutes 26 seconds
West a distance of 2.87 feet, having a radius of 119.50 feet, a central angle of 1 degree 22
minutes 37 seconds and an arc length of 2.87 feet to a point for corner at the end of said curve to
the left;
THENCE South 71 degrees 06 minutes 48 seconds West a distance of 4.84 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 17 degrees 08 minutes 39
seconds East a distance of 5.69 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 39 seconds and an arc length of 5.69 feet to a point for corner at the end of said curve
to the right;
THENCE South 74 degrees 16 minutes 41 seconds West a distance of 2.00 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 27 degrees 40 minutes 54 seconds
West a distance of 46.69 feet, having a radius of 112.66 feet, a central angle of 23 degrees 55
minutes 11 seconds and an arc length of 47.03 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
THENCE North 50 degrees 21 minutes 30 seconds East a distance of 2.00 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 38 degrees 13 minutes 06
seconds East a distance of 5.70 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 47 seconds and an arc length of 5.70 feet to a point for corner at the end of said curve
to the right;
THENCE North 53 degrees 12 minutes 17 seconds East a distance of 5.09 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 40 degrees 09 minutes 33 seconds
West a distance of 14.06 feet, having a radius of 119.78 feet, a central angle of 6 degrees 43
minutes 39 seconds and an arc length of 14.06 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
10
THENCE North 45 degrees 00 minutes 00 seconds East a distance of 25.51 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 01 minute 04 seconds East a distance of 88.31 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 3.67 feet to a point for
corner;
THENCE South 07 degrees 19 minutes 08 seconds East a distance of 2.03 feet to a point for
corner;
THENCE North 78 degrees 31 minutes 09 seconds East a distance of 8.48 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to the
right;
THENCE along said curve to the right whose chord bears South 07 degrees 59 minutes 46
seconds East a distance of 21.41 feet, having a radius of 176.86 feet, a central angle of 6 degrees
56 minutes 30 seconds and an arc length of 21.43 feet to a point for corner at the end of said
curve to the right;
THENCE North 85 degrees 32 minutes 47 seconds East a distance of 19.49 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the right;
THENCE along said curve to the right whose chord bears South 00 degrees 10 minutes 30
seconds West a distance of 31.96 feet, having a radius of 198.94 feet, a central angle of 9 degrees
12 minutes 55 seconds and an arc length of 32.00 feet to a 1/2 inch iron rod with yellow plastic
cap stamped "RLG INC" set for corner at the end of said curve to the right;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 191.26 feet to a point for
corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 91.82 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 29.33 feet to a chiseled "X"
in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 36.85 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE North 45 degrees 00 minutes 00 seconds West a distance of 46.83 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
11
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 56.31 feet to a point for
corner;
THENCE South 34 degrees 38 minutes 35 seconds East a distance of 7.79 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted white;
THENCE along said curve to the right whose chord bears South 55 degrees 16 minutes 01
second West a distance of 0.61 feet, having a radius of 336.75 feet, a central angle of 0 degrees
06 minutes 12 seconds and an arc length of 0.61 feet to a point for corner at the end of said curve
to the right;
THENCE South 34 degrees 52 minutes 57 seconds East a distance of 58.43 feet to a point for
corner;
THENCE South 05 degrees 13 minutes 28 seconds West a distance of 9.86 feet to a 1/2 inch iron
rod set for corner, said rod being in the northwesterly line of Crutcher Street (53 foot right-of-
way);
THENCE South 45 degrees 00 minutes 06 seconds West along the northwesterly line of said
Crutcher Street a distance of 122.22 feet to a 1/2 inch iron rod set for corner at the beginning of a
curve to the left;
THENCE departing the northwesterly line of said Crutcher Street and along said curve to the left
whose chord bears South 84 degrees 10 minutes 42 seconds West a distance of 201.74 feet,
having a radius of 1861.77 feet, a central angle of 6 degrees 12 minutes 42 seconds and an arc
length of 201.84 feet to a 1/2 inch iron rod set for corner at the end of said curve to the left, said
rod being in the northeasterly line of said Hall Street;
THENCE North 44 degrees 29 minutes 29 seconds West along the northeasterly line of said Hall
Street a distance of 42.22 feet to a point for corner;
THENCE North 45 degrees 30 minutes 31 seconds East departing the northeasterly line of said
Hall Street a distance of 1.50 feet to a 1/2 inch iron rod set for corner;
THENCE North 44 degrees 29 minutes 28 seconds West a distance of 173.18 feet to a 1/2 inch
iron rod set for corner;
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 14.84 feet to a point for
corner;
THENCE North 34 degrees 16 minutes 26 seconds East a distance of 47.10 feet to a chiseled "X"
in concrete set for corner, said "X" painted green;
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 23.74 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted green;
12
THENCE along said curve to the right whose chord bears North 45 degrees 10 minutes 52
seconds East a distance of 50.40 feet, having a radius of 174.88 feet, a central angle of 16
degrees 34 minutes 13 seconds and an arc length of 50.58 feet to a chiseled "X" in concrete set
for corner at the end of said curve to the right and the beginning of a curve to the left, said "X"
painted green;
THENCE along said curve to the left whose chord bears North 41 degrees 29 minutes 53 seconds
East a distance of 40.10 feet, having a radius of 90.74 feet, a central angle of 25 degrees 31
minutes 56 seconds and an arc length of 40.43 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted green;
THENCE North 28 degrees 43 minutes 59 seconds East a distance of 59.47 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 04 degrees 31 minutes 36 seconds
West a distance of 17.04 feet, having a radius of 15.21 feet, a central angle of 68 degrees 08
minutes 29 seconds and an arc length of 18.09 feet to the POINT OF BEGINNING, containing
150,354 square feet or 3.4517 acres, more or less.
SAVE AND EXCEPT: Exhibit A - Tract 1 as conveyed to the City of Dallas by Warranty Deed
filed 04/15/2014, recorded in cc# 201400091381, Real Property Records, Dallas County, Texas.
PARCEL 2: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in the
Maintenance, Operation, and Easement Agreement dated July 30, 2004, between Baylor Health
Care System and HRT Properties of Texas, Ltd., filed for record August 06, 2004, and recorded
in Volume 2004151, Page 4607, Real Property Records, Dallas County, Texas, as amended by
First Amendment to Maintenance, Operation and Easement Agreement, filed 02/09/2006,
recorded in cc# 200600047697 Real Property Records, Dallas County, Texas, and as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement among Baylor Health Care System, BCC Cancer Center Venture, L.P., and HRT
Properties of Texas, Ltd., filed for record April 24, 2009, and recorded in cc# 2009-00117281,
Real Property Records, Dallas County, Texas, and the Second Declaration of Removal filed
April 15, 2014, recorded in cc# 201400091380, Real Property Records, Dallas County, Texas.
PARCEL 3: (Easement):
Non-exclusive easements contained in that certain Maintenance and Operating Agreement
between Baylor Health Care System and BCC Cancer Center Venture, L.P., filed for record
April 24, 2009, and recorded in cc# 2009-00117285, Real Property Records, Dallas County,
Texas, as amended by instrument filed April 15, 2014, recorded in cc# 201400091374, Real
Property Records, Dallas County, Texas.
PARCEL 4: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in that
Maintenance, Operation and Easement Agreement executed between Baylor Health Care System
13
and Duke Realty Limited Partnership, dated March 28, 2008, filed for record on March 05, 2009,
and recorded in cc# 200900064698, Real Property Records, Dallas County, Texas, as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement executed among Baylor Health Care System, Duke Realty Limited Partnership, and
BCC Cancer Center Venture, L.P., filed for record on April 24, 2009, and recorded in cc#
2009-00117684, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091377, Real Property Records, Dallas County, Texas.
PARCEL 5: (Easement):
Non-exclusive easement for parking and non-exclusive easement for ingress and egress for a
term co-terminus with the leasehold estate described as PARCEL 1 granted in that Parking
Facilities Agreement and that Memorandum of Parking Facilities Agreement, executed by
Baylor Health Care System and BCC Cancer Center Venture, L.P., both documents dated April
23, 2009, said Memorandum filed for record April 24, 2009, and recorded in cc# 2009-
00117286, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091375, Real Property Records, Dallas County, Texas.
PARCEL 6: (Easement):
Non-exclusive easement for underground facilities created by Easement For Underground
Facilities, executed by Baylor Health Care System, a Texas nonprofit corporation, to BCC
Cancer Center Venture, L.P., filed 12/13/2010, recorded in cc# 201000316055, Real Property
Records, Dallas County, Texas.
EXHIBIT H
JV333508/335195
Baylor Cancer Center
SELLER'S CERTIFICATE
THIS CERTIFICATE (this "Certificate") is made as of this ______ day of
___________, 2017, to be effective as of the Closing Date, by BCC CANCER CENTER
VENTURE, L.P. ("Seller"), in favor of DOC-3410 WORTH ST. MOB, LLC, a Wisconsin
limited liability company ("Buyer").
RECITALS:
Seller and Buyer entered into that certain Real Estate Purchase and Sale Agreement (the
"Agreement") with an Effective Date of June __, 2017, with respect to the purchase and sale of
property commonly known as The Baylor Charles A. Sammons Cancer Center, located at 3410
Worth Street, in the City of Dallas, County of Dallas, State of Texas, described therein, and the
Agreement provides that all of the representations and warranties and covenants of Seller in the
Agreement shall be reaffirmed by Seller at Closing.
Therefore, Seller hereby certifies to Buyer as follows:
1. As of the date hereof, all of Seller's representations and warranties set forth in the
Agreement, including, but not limited to, those set forth in Section 3.1 of the
Agreement, were true, correct, and complete on the date of the Agreement, and
remain materially true, correct, and complete on the date hereof, without
exception or {except as set forth on Exhibit A attached hereto}.
2. All capitalized terms used in this Certificate without separate definition shall have
the same meanings assigned to them in the Agreement.
2
IN WITNESS WHEREOF, this Certificate has been executed by the duly authorized
representative of Seller the day and year first above written.
SELLER: BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, LLC, a Delaware limited liability
company, its general partner
By: NM Imperial, LLC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, LLC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, LLC, a Delaware
limited liability company, its wholly-owned
affiliate
By:
Name:
Its:
APPROVED BY:
By:
Name: Philip Natkins
Title: Investment Manager
EXHIBIT I
JV333508/335195
Baylor Cancer Center
BUYER'S CERTIFICATE
THIS CERTIFICATE (this "Certificate") is made as of this ______ day of June, 2017,
to be effective as of the Closing Date, by DOC-3410 WORTH ST. MOB, LLC, a Wisconsin
limited liability company ("Buyer"), in favor of BCC CANCER CENTER VENTURE, L.P.
("Seller").
RECITALS
Seller and Buyer entered into that certain Real Estate Purchase and Sale Agreement (the
"Agreement") with an Effective Date of June ___, 2017, with respect to the purchase and sale of
property commonly known as The Baylor Charles A. Sammons Cancer Center, located at 3410
Worth Street, in the City of Dallas, County of Dallas, State of Texas, described therein. The
Agreement provides that all of the representations and warranties of Buyer in the Agreement
shall be reaffirmed by Buyer at Closing.
Therefore, Buyer hereby certifies to Seller as follows:
1. Buyer hereby reaffirms, as of the date hereof, that all of Buyer's representations,
and warranties set forth in the Agreement, including, but not limited to, those set
forth in Section 3.3 of the Agreement, were true, correct, and complete on the date
of the Agreement, and remain true, correct, and complete on the date hereof,
without exception or {except as set forth on Exhibit A attached hereto}; and
2. All capitalized terms used in this Certificate without separate definition shall have
the same meanings assigned to them in the Agreement.
3. Buyer hereby affirms as of the date hereof, that Buyer has not prepared, nor
had prepared on its behalf, any environmental reports on or concerning the
Property.
IN WITNESS WHEREOF, this Certificate has been executed by the duly authorized
representative of Buyer the day and year first above written.
BUYER: DOC-3410 WORTH ST. MOB, LLC, a Wisconsin limited liability
company
By: Physicians Realty L.P., its Manager
By: Physicians Realty Trust, its General Partner
By:___________________________________
John T. Thomas, President & CEO
EXHIBIT J
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO
Pam Sullivan
First American Title Company
National Commercial Services
30 N. LaSalle St., Suite 2700
Chicago, Illinois 60602
______________________________________________________________________________
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (the "Assignment")
is made as of June ___, 2017, between BCC CANCER CENTER VENTURE, L.P., a Delaware
limited partnership ("Assignor") and DOC-3410 Worth St. MOB, LLC, a Wisconsin limited
liability company ("Assignee").
A. Assignor and Baylor Health Care System, a Texas non-profit corporation, entered
into that certain Ground Lease dated as of April 23, 2009 (the "Ground Lease") which affects
that certain real property located in Dallas, Texas, commonly known as 3410 Worth Street, and
more particularly described in the Ground Lease (the "Property"). Capitalized terms used herein
and not defined shall have the meanings given them in the Ground Lease.
B. Assignor desires to assign to Assignee all of its interest under the Ground Lease
and Assignee desires to accept the assignment thereof.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Assignor assigns to Assignee all of Assignor's right, title and interest in, to and
under the Ground Lease and agrees to indemnify, defend and hold Assignee harmless from and
against any and all losses, costs, claims, damages, liabilities and expenses, including, without
limitation, reasonable attorneys' fees and expenses, arising out of or relating to events occurring
prior to the date hereof and arising out of Assignor’s obligations under the Ground Lease.
2. Assignee hereby assumes all of Assignor's obligations under the Ground Lease
first originating on or after the date of this Assignment and agrees to indemnify, defend and hold
Assignor harmless from and against any and all losses, costs, claims, damages, liabilities and
expenses, including, without limitation, reasonable attorneys' fees and expenses, arising out of or
relating to events occurring on or after the date hereof and arising out of Assignee’s obligations
as landlord under the Ground Lease.
3. In the event of any legal or equitable proceeding to enforce any of the terms or
conditions of this Assignment, or any alleged disputes, breaches, defaults or misrepresentations
in connection with any provision of this Assignment, the prevailing party in such proceeding
shall be entitled to recover its reasonable costs and expenses, including, without limitation,
reasonable attorneys’ fees and costs of defense paid or incurred in good faith.
4. This Assignment shall inure to the benefit of and be binding upon the parties
hereto and their respective permitted successors and assigns.
5. If any provision of this Assignment as applied to either party or to any
circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable
for any reason, the same shall in no way affect (to the maximum extent permissible by law) any
other provision of this Assignment, the application of any such provision under circumstances
different from those adjudicated by the court, or the validity or enforceability of this Assignment
as a whole.
6. This Assignment may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signature pages may be detached from the counterparts and attached to a single
copy of this Assignment to physically form one document.
IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment as of
the day and year first above written.
ASSIGNOR:
BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, LLC, a Delaware limited liability
company, its general partner
By: NM Imperial, LLC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, LLC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, LLC, a Delaware
limited liability company, its wholly-owned
affiliate
By:
Name:
Its:
STATE OF WISCONSIN )
) SS.
COUNTY OF MILWAUKEE )
On this _____ day of ________________, 2017, before me appeared
______________________________ who is personally to me known and known to me to be a
_____________ of Northwestern Mutual Investment Management Company, LLC, and to be the
same person who, as such officer, executed the foregoing instrument of writing in the name of
said limited liability company and duly acknowledged the execution thereof as the free act and
deed of said limited liability company as an authorized representative of The Northwestern
Mutual Life Insurance Company as sole owner of NM Imperial, LLC, as sole owner of NM
Cancer Center GP, LLC, as general partner of BCC CANCER CENTER VENTURE, L.P., a
Delaware limited partnership.
Notary Public, State of Wisconsin
My Commission expires: ________
ASSIGNEE:
DOC-3410 WORTH ST. MOB, LLC, a Wisconsin limited liability
company
By: Physicians Realty L.P., its Manager
By: Physicians Realty Trust, its General Partner
By:___________________________________
John T. Thomas, President & CEO
STATE OF WISCONSIN )
COUNTY OF MILWAUKEE )
On __________________ before me, ______________________, personally
appeared ____________________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
Wisconsin that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
____________________________________
Notary Public
My Commission Expires:________________
THIS FORM TO BE MODIFIED IF THERE ARE LONG-TERM SERVICE
CONTRACTS TO BE ASSIGNED.
EXHIBIT K
JV333508/335195
Baylor Cancer Center
ASSIGNMENT AND ASSUMPTION
OF
SERVICE CONTRACTS AND OTHER OBLIGATIONS
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS AND
OTHER OBLIGATIONS (this "Assignment") is executed as of the _____ day of June, 2017, to
be effective as of the Closing Date, by and between BCC CANCER CENTER VENTURE,
L.P., a Delaware limited partnership ("Assignor"), and DOC-3410 WORTH ST. MOB, LLC, a
Wisconsin limited liability company ("Assignee").
RECITALS
A. Assignor, as Seller, and Assignee, as Buyer, entered into that certain Real Estate
Purchase and Sale Agreement (the "Agreement") with an Effective Date of June ___, 2017, for
the purchase and sale of the real estate commonly known as The Baylor Charles A. Sammons
Cancer Center, which is legally described in Schedule 1 attached hereto and incorporated herein
(the "Property").
B. In connection with the conveyance of the Property but subject to the provisions of
the Agreement, Assignor desires to assign to Assignee all the service, maintenance and other
contracts respecting the use, maintenance, development, sale, or operation of the Property or any
portion thereof and all transferable guarantees and warranties for the Property and Assignee
desires to accept said assignment and assume certain obligations of Assignor under said contracts
upon the terms, covenants, and conditions set forth in this Assignment.
C. All capitalized terms used in this Assignment without separate definition shall
have the same meanings assigned to them in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals set forth above, which are
made a part of this Assignment, the mutual covenants hereinafter contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Assignment of Service Contracts. Assignor hereby assigns, conveys, transfers,
and sets over unto Assignee all of Assignor's right, title, and interest in, to and under those
certain service, maintenance, and other contracts and concessions respecting the use,
maintenance, development, sale, or operation of the Property or any portion thereof, and all
transferable guarantees and warranties for the Property, which are set forth on Schedule 2
attached hereto and incorporated herein, together with all amendments, extensions, renewals, and
modifications thereto, to the extent assignable (collectively, the "Service Contracts"), together
with all rights and privileges and subject to the covenants and conditions therein mentioned,
including any warranties or guaranties with respect to any work performed pursuant to the
Service Contracts, to have and to hold the same unto Assignee, its successors and assigns.
2. Assumption of Service Contracts. As of the Closing Date (as defined in the
Agreement), Assignee accepts said assignment of the Service Contracts and, subject to the terms
of the Agreement, assumes all of Assignor's obligations under the Service Contracts for the
balance of the terms thereof following the Closing Date.
3. No Merger. This Assignment shall not merge with or limit or restrict any
provision of the Agreement, and the provisions of the Agreement shall govern and control the
rights and obligations of Assignor and Assignee with respect to all matters described therein,
including, without limitation, representations and warranties, the apportionment of payment
obligations and indemnification obligations.
4. Binding Effect. This Assignment shall be binding upon and inure to the benefit of
the Assignor and Assignee and each of their respective successors and assigns.
5. Counterparts. This Assignment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument.
(Signatures on Next Page)
IN WITNESS WHEREOF, the parties have executed this Assignment as of the day and
year first above written.
ASSIGNOR: BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, LLC, a Delaware limited liability
company, its general partner
By: NM Imperial, LLC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, LLC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, LLC, a Delaware
limited liability company, its wholly-owned
affiliate
By:
Name:
Its:
ASSIGNEE: DOC-3410 Worth St. MOB, LLC, a Wisconsin limited liability company
By: Physicians Realty L.P., its Manager
By: Physicians Realty Trust, its General Partner
By:___________________________________
John T. Thomas, President & CEO
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION OF
SERVICE CONTRACTS AND OTHER OBLIGATIONS
LEGAL DESCRIPTION
PARCEL 1: (Leasehold):
Being a tract or parcel of land situated in the John Grigsby Survey, Abstract Number 495, City of
Dallas, Dallas County, Texas, and being part of Lot 1, Block A/840, BUMC CC Addition, an
Addition to the City of Dallas, according to the plat recorded in Document No. 200900003566,
Real Property Records, Dallas County, Texas, and being more particularly described as follows:
COMMENCING at a point for corner at the intersection of the southeasterly line of Worth Street
(53 foot right-of-way) and the cut-off line between said southeasterly line and the northeasterly
line of Hall Street (95 foot right-of-way at this point), said point being the most northerly west
corner of said Lot 1;
THENCE North 44 degrees 59 minutes 31 seconds East along the southeasterly line of said
Worth Street a distance of 228.54 feet to a point for corner;
THENCE South 45 degrees 00 minutes 29 seconds East departing the southeasterly line of said
Worth Street a distance of 3.07 feet to a point for corner, said point being the POINT OF
BEGINNING;
THENCE South 69 degrees 56 minutes 36 seconds East a distance of 34.91 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted green;
THENCE along said curve to the left whose chord bears South 73 degrees 45 minutes 20 seconds
East a distance of 30.93 feet, having a radius of 100.35 feet, a central angle of 17 degrees 43
minutes 51 seconds and an arc length of 31.05 feet to a point for corner at the end of said curve
to the left and the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 66 degrees 39 minutes 11 seconds
East a distance of 36.16 feet, having a radius of 175.58 feet, a central angle of 11 degrees 49
minutes 18 seconds and an arc length of 36.23 feet to a 1/2 inch iron rod with yellow plastic cap
stamped "RLG INC" set for corner at the end of said curve to the left;
THENCE North 29 degrees 15 minutes 29 seconds West a distance of 23.91 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the left;
THENCE along said curve to the left whose chord bears North 46 degrees 02 minutes 01 second
East a distance of 77.02 feet, having a radius of 151.67 feet, a central angle of 29 degrees 25
2
minutes 03 seconds and an arc length of 77.87 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
THENCE South 58 degrees 40 minutes 30 seconds East a distance of 31.35 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 20 degrees 31 minutes 19 seconds
East a distance of 68.61 feet, having a radius of 183.02 feet, a central angle of 21 degrees 36
minutes 25 seconds and an arc length of 69.02 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left and the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 17 degrees 53 minutes 26 seconds
West a distance of 2.87 feet, having a radius of 119.50 feet, a central angle of 1 degree 22
minutes 37 seconds and an arc length of 2.87 feet to a point for corner at the end of said curve to
the left;
THENCE South 71 degrees 06 minutes 48 seconds West a distance of 4.84 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 17 degrees 08 minutes 39
seconds East a distance of 5.69 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 39 seconds and an arc length of 5.69 feet to a point for corner at the end of said curve
to the right;
THENCE South 74 degrees 16 minutes 41 seconds West a distance of 2.00 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the left, said "X" painted white;
THENCE along said curve to the left whose chord bears North 27 degrees 40 minutes 54 seconds
West a distance of 46.69 feet, having a radius of 112.66 feet, a central angle of 23 degrees 55
minutes 11 seconds and an arc length of 47.03 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
THENCE North 50 degrees 21 minutes 30 seconds East a distance of 2.00 feet to a point for
corner at the beginning of a curve to the right;
THENCE along said curve to the right whose chord bears South 38 degrees 13 minutes 06
seconds East a distance of 5.70 feet, having a radius of 114.66 feet, a central angle of 2 degrees
50 minutes 47 seconds and an arc length of 5.70 feet to a point for corner at the end of said curve
to the right;
THENCE North 53 degrees 12 minutes 17 seconds East a distance of 5.09 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 40 degrees 09 minutes 33 seconds
West a distance of 14.06 feet, having a radius of 119.78 feet, a central angle of 6 degrees 43
3
minutes 39 seconds and an arc length of 14.06 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted white;
THENCE North 45 degrees 00 minutes 00 seconds East a distance of 25.51 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 01 minute 04 seconds East a distance of 88.31 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 3.67 feet to a point for
corner;
THENCE South 07 degrees 19 minutes 08 seconds East a distance of 2.03 feet to a point for
corner;
THENCE North 78 degrees 31 minutes 09 seconds East a distance of 8.48 feet to a 1/2 inch iron
rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to the
right;
THENCE along said curve to the right whose chord bears South 07 degrees 59 minutes 46
seconds East a distance of 21.41 feet, having a radius of 176.86 feet, a central angle of 6 degrees
56 minutes 30 seconds and an arc length of 21.43 feet to a point for corner at the end of said
curve to the right;
THENCE North 85 degrees 32 minutes 47 seconds East a distance of 19.49 feet to a 1/2 inch
iron rod with yellow plastic cap stamped "RLG INC" set for corner at the beginning of a curve to
the right;
THENCE along said curve to the right whose chord bears South 00 degrees 10 minutes 30
seconds West a distance of 31.96 feet, having a radius of 198.94 feet, a central angle of 9 degrees
12 minutes 55 seconds and an arc length of 32.00 feet to a 1/2 inch iron rod with yellow plastic
cap stamped "RLG INC" set for corner at the end of said curve to the right;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 191.26 feet to a point for
corner;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 91.82 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds East a distance of 29.33 feet to a chiseled "X"
in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 36.85 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
4
THENCE North 45 degrees 00 minutes 00 seconds West a distance of 46.83 feet to a chiseled
"X" in concrete set for corner, said "X" painted white;
THENCE South 45 degrees 00 minutes 00 seconds West a distance of 56.31 feet to a point for
corner;
THENCE South 34 degrees 38 minutes 35 seconds East a distance of 7.79 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted white;
THENCE along said curve to the right whose chord bears South 55 degrees 16 minutes 01
second West a distance of 0.61 feet, having a radius of 336.75 feet, a central angle of 0 degrees
06 minutes 12 seconds and an arc length of 0.61 feet to a point for corner at the end of said curve
to the right;
THENCE South 34 degrees 52 minutes 57 seconds East a distance of 58.43 feet to a point for
corner;
THENCE South 05 degrees 13 minutes 28 seconds West a distance of 9.86 feet to a 1/2 inch iron
rod set for corner, said rod being in the northwesterly line of Crutcher Street (53 foot right-of-
way);
THENCE South 45 degrees 00 minutes 06 seconds West along the northwesterly line of said
Crutcher Street a distance of 122.22 feet to a 1/2 inch iron rod set for corner at the beginning of a
curve to the left;
THENCE departing the northwesterly line of said Crutcher Street and along said curve to the left
whose chord bears South 84 degrees 10 minutes 42 seconds West a distance of 201.74 feet,
having a radius of 1861.77 feet, a central angle of 6 degrees 12 minutes 42 seconds and an arc
length of 201.84 feet to a 1/2 inch iron rod set for corner at the end of said curve to the left, said
rod being in the northeasterly line of said Hall Street;
THENCE North 44 degrees 29 minutes 29 seconds West along the northeasterly line of said Hall
Street a distance of 42.22 feet to a point for corner;
THENCE North 45 degrees 30 minutes 31 seconds East departing the northeasterly line of said
Hall Street a distance of 1.50 feet to a 1/2 inch iron rod set for corner;
THENCE North 44 degrees 29 minutes 28 seconds West a distance of 173.18 feet to a 1/2 inch
iron rod set for corner;
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 14.84 feet to a point for
corner;
THENCE North 34 degrees 16 minutes 26 seconds East a distance of 47.10 feet to a chiseled "X"
in concrete set for corner, said "X" painted green;
5
THENCE North 32 degrees 24 minutes 37 seconds East a distance of 23.74 feet to a chiseled "X"
in concrete set for corner at the beginning of a curve to the right, said "X" painted green;
THENCE along said curve to the right whose chord bears North 45 degrees 10 minutes 52
seconds East a distance of 50.40 feet, having a radius of 174.88 feet, a central angle of 16
degrees 34 minutes 13 seconds and an arc length of 50.58 feet to a chiseled "X" in concrete set
for corner at the end of said curve to the right and the beginning of a curve to the left, said "X"
painted green;
THENCE along said curve to the left whose chord bears North 41 degrees 29 minutes 53 seconds
East a distance of 40.10 feet, having a radius of 90.74 feet, a central angle of 25 degrees 31
minutes 56 seconds and an arc length of 40.43 feet to a chiseled "X" in concrete set for corner at
the end of said curve to the left, said "X" painted green;
THENCE North 28 degrees 43 minutes 59 seconds East a distance of 59.47 feet to a point for
corner at the beginning of a curve to the left;
THENCE along said curve to the left whose chord bears North 04 degrees 31 minutes 36 seconds
West a distance of 17.04 feet, having a radius of 15.21 feet, a central angle of 68 degrees 08
minutes 29 seconds and an arc length of 18.09 feet to the POINT OF BEGINNING, containing
150,354 square feet or 3.4517 acres, more or less.
SAVE AND EXCEPT: Exhibit A - Tract 1 as conveyed to the City of Dallas by Warranty Deed
filed 04/15/2014, recorded in cc# 201400091381, Real Property Records, Dallas County, Texas.
PARCEL 2: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in the
Maintenance, Operation, and Easement Agreement dated July 30, 2004, between Baylor Health
Care System and HRT Properties of Texas, Ltd., filed for record August 06, 2004, and recorded
in Volume 2004151, Page 4607, Real Property Records, Dallas County, Texas, as amended by
First Amendment to Maintenance, Operation and Easement Agreement, filed 02/09/2006,
recorded in cc# 200600047697 Real Property Records, Dallas County, Texas, and as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement among Baylor Health Care System, BCC Cancer Center Venture, L.P., and HRT
Properties of Texas, Ltd., filed for record April 24, 2009, and recorded in cc# 2009-00117281,
Real Property Records, Dallas County, Texas, and the Second Declaration of Removal filed
April 15, 2014, recorded in cc# 201400091380, Real Property Records, Dallas County, Texas.
PARCEL 3: (Easement):
Non-exclusive easements contained in that certain Maintenance and Operating Agreement
between Baylor Health Care System and BCC Cancer Center Venture, L.P., filed for record
April 24, 2009, and recorded in cc# 2009-00117285, Real Property Records, Dallas County,
Texas, as amended by instrument filed April 15, 2014, recorded in cc# 201400091374, Real
Property Records, Dallas County, Texas.
6
PARCEL 4: (Easement):
Non-exclusive access easement and non-exclusive interior access easement created in that
Maintenance, Operation and Easement Agreement executed between Baylor Health Care System
and Duke Realty Limited Partnership, dated March 28, 2008, filed for record on March 05, 2009,
and recorded in cc# 200900064698, Real Property Records, Dallas County, Texas, as affected by
the Confirmation of Removal or Relocation for Maintenance, Operation and Easement
Agreement executed among Baylor Health Care System, Duke Realty Limited Partnership, and
BCC Cancer Center Venture, L.P., filed for record on April 24, 2009, and recorded in cc#
2009-00117684, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091377, Real Property Records, Dallas County, Texas.
PARCEL 5: (Easement):
Non-exclusive easement for parking and non-exclusive easement for ingress and egress for a
term co-terminus with the leasehold estate described as PARCEL 1 granted in that Parking
Facilities Agreement and that Memorandum of Parking Facilities Agreement, executed by
Baylor Health Care System and BCC Cancer Center Venture, L.P., both documents dated April
23, 2009, said Memorandum filed for record April 24, 2009, and recorded in cc# 2009-
00117286, Real Property Records, Dallas County, Texas, as affected by instrument filed
April 15, 2014, recorded in cc# 201400091375, Real Property Records, Dallas County, Texas.
PARCEL 6: (Easement):
Non-exclusive easement for underground facilities created by Easement For Underground
Facilities, executed by Baylor Health Care System, a Texas nonprofit corporation, to BCC
Cancer Center Venture, L.P., filed 12/13/2010, recorded in cc# 201000316055, Real Property
Records, Dallas County, Texas.
SCHEDULE 2
TO ASSIGNMENT AND ASSUMPTION OF
SERVICE CONTRACTS AND OTHER OBLIGATIONS
SERVICE CONTRACTS
Company Service Start Date End Date
AIR Engineering &
Testing, Inc.
HVAC Maintenance &
Repair
2/15/2015 2/14/2018
Barrett Woodyard &
Associates
Consultant 8/26/2015 12/31/2017
Belfor USA Group Inc Disaster Relief 3/1/2015 12/31/2017
Business Flooring
Specialists LP
Flooring 10/14/2015 10/31/2017
C&K Water Specialists
LLC
Water Treatment 4/1/2012 3/31/2018
CBRE Inc Other 3/1/2016 2/28/2021
City Wide Building
Services
Pressure Washing 3/15/2017 3/14/2019
City Wide Building
Services
Window Washers 3/15/2017 3/14/2019
Cleaning Guys LLC Bio Hazard Waste
Cleanup
10/24/2014 12/31/2017
Clifford Power Systems
Inc
Generator/Power
Systems Maintenance
and Repair
4/1/2011 3/31/2019
CMH Elevator
Consultants &
Associates LLC
Other 2/2/2015 1/31/2021
Dallas Glass & Door
Co. Ltd.
Glass and/or Mirror
Service
10/21/2013 9/30/2021
Dorma USA Inc Dock Door Service 11/21/2014 10/31/2018
DSS Fire Inc. Fire Suppression 4/1/2011 3/31/2019
Empire Roofing Roofing 12/15/2016 11/30/2021
Entech Sales and
Service, Inc.
HVAC 3/1/2017 1/31/2020
Entech Sales and
Service, Inc.
Electrical 3/1/2017 1/31/2020
Entech Sales and
Service, Inc.
Plumbing 3/1/2017 1/31/2020
Filgo Oil Company
Ltd.
Generator/Power
Systems Maintenance
& Repair
6/1/2013 5/31/2019
Flores Technical
Services Inc
Access Control 1/1/2015 12/31/2018
Garratt Callahan
Company
Water Treatment 3/1/2015 2/28/2018
Gemini Technology
Inc. d/b/s
Alphagraphics
Other 6/1/2016 5/20/2019
2
Company Service Start Date End Date
Healthcare Art
Consulting
Signage 1/15/2013 2/28/2018
Hobbs Equipment Equipment Rental 2/15/2011 2/14/2021
ICON Ecological
Solutions LLC
Pest Control 6/1/2016 5/31/2019
Industrial Roofing
Services Inc
Roofing Consultant 1/1/2016 12/31/2018
InfoVu Technologies
LLC
Signage 5/1/2015 1/31/2020
JF Filtration Inc. (Joe
W Fly Company
Other 2/1/2016 1/31/2018
John Larriviere dba
Precision Textile
Carpet Cleaning 11/1/2014 12/31/2018
Johnson Controls Inc. HVAC Maintenance &
Repair
11/1/2015 10/31/2017
Johnson Controls Inc. Mechanical Contractor 11/1/2015 10/31/2017
Johnson Controls Inc. HVAC 2/1/2017 1/31/2018
Kings III of America
Inc.
Elevator Alarm
Monitoring
12/30/2015 12/31/2017
Kings III of America
Inc.
AED Monitoring 12/30/2015 12/31/2017
Knight Restoration LP Restoration 3/1/2014 12/30/2017
Laz Parking Texas LLC Parking Lot
Management
9/1/2015 8/31/2018
Maxtin Inc (Morrison
Architectural Sign Co)
Signage 12/1/2012 12/31/2019
Modemfold Door &
Specialties (of Dallas
Ft. Worth Inc)
Doors, Frames &
Hardware
10/21/2013 10/31/2019
Phillips Electrical
Service Inc.
Electrical 1/25/2017 1/31/2021
Plant Interscapes Inc. Interior landscaping 7/1/2016 6/30/2019
Prism Electric Inc Lighting Company 3/15/215 12/31/2018
Refrigerated Specialist
Inc
Mechanical Contractor 9/26/2014 9/30/2018
Renaissance Metals Inc
(dba Mid America
Metals)
Metal Refinishing 5/20/2015 5/31/2018
Restorx of Texas LLC Restoration 11/5/2012 12/31/2017
Select Commercial
Services LLC
Janitorial 3/15/2013 3/31/2019
TD Industries Inc. HVAC Maintenance &
Repair
10/1/2015 12/31/2018
TD Industries Inc. Mechanical Contractor 10/1/2015 12/31/2018
TD Industries Inc. Plumbing Maintenance
& Repair
10/1/2015 12/31/2018
Terracon Consultants
Inc.
Consultant 1/31/2017 1/31/2020
3
Company Service Start Date End Date
The Brickman Group,
Ltd.
Snow Removal 10/1/2015 12/31/2018
TKE Corp (dba
ThyssenKrupp Elevator
Corp.)
Elevator Maintenance
& Repair
7/28/2014 12/31/2018
Trane US Inc HVAC Maintenance &
Repair
12/14/2016 5/31/2019
Triple B Cleaning Inc. Other 3/11/2011 6/30/2018
Tri-Tex Construction
Inc
General Maintenance
w/Contract
1/30/2015 1/31/2020
4
EXHIBIT M
JV333508/335195
Baylor Cancer Center
AFFIDAVIT AS TO DEBTS, LIENS,
PARTIES IN POSSESSION, AND GAP COVERAGE
PROPERTY: The property located at 3410 Worth Street, in the City of Dallas, County of
Dallas, State of Texas, as more particularly described in First American Title Insurance
Company's ("Title Company") Commitment No. __________ (the "Commitment") with an
effective date of ___________, 2017 (the "Effective Date").
BEFORE ME, the undersigned authority, on this ______________ day of June, 2017, personally
appeared ______________, Managing Director of Northwestern Mutual Investment
Management Company, LLC, a wholly-owned affiliate of The Northwestern Mutual Life
Insurance Company ("Seller"), personally known to me to be the person whose name is
subscribed hereto and upon oath deposes and says, in his/her capacity as Managing Director of
Northwestern Mutual Investment Management Company, LLC (and not personally), that, to the
best knowledge of the undersigned, as of the date of this Affidavit and other than as disclosed in
the Commitment:
1. Seller has not purchased, either through a time payment contract or otherwise, any fixture
which constitutes real property and is located on the Property, that is not fully paid for as of the
date of this Affidavit. [except for _____]
2. There are no judgment liens, federal tax liens, or state tax liens against the Property as of
the date of this Affidavit.
3. Seller is in sole possession of the Property and has not entered into any leases granting
any party a right of possession to the Property ("Lease"), except for the Leases described on
Exhibit A attached hereto and incorporated herein. No rights of first refusal or purchase options
exist as of the date of this Affidavit with respect to any portion of the Property.
4. Seller has neither recorded any agreements since the Effective Date nor entered into any
unrecorded agreements that affect title to the Property and that, by their terms, are still in force,
including, without limitation, contracts, deeds, mortgages, trust deeds, easements, security
agreements and liens of any nature, except (i) as disclosed in the Commitment and (ii) to the
extent legible copies of the same have been delivered to Seller except as follows (if none, state
"NONE"): [________]
5. Seller has taken no action nor executed any instrument, nor are there any matters pending
against Seller, with respect to the Property which could give rise to a lien against the Property
between the Effective Date and the date of this Affidavit.
6. Within the last six (6) months of the date of this Affidavit and except to the extent that
Seller shall fully pay the cost thereof, no labor, services or materials have been furnished to
5
rehabilitate, repair, refurbish, or remodel the Property or the improvements located thereon,
including, but not limited to any contracts, construction work, services, and material let or
provided by or on behalf of tenants under Leases, nor have any contracts been entered into by
Seller for the furnishing of such labor, services, or materials that are to be completed subsequent
to the date hereof.
7. Seller has not received written notice of any violation of covenants, conditions, or
restrictions affecting the Property which have not been cured or otherwise remedied.
The statements made to Title Company in this Affidavit are made solely as an
inducement to Title Company to issue an owner's policy of title insurance to [insert Buyer]
("Buyer"), and to no other person or entity and for no other purpose. Seller hereby
acknowledges that Title Company is relying upon the statements contained herein in issuing such
policy of title insurance to Buyer.
BCC CANCER CENTER VENTURE, L.P., a Delaware limited partnership
By: NM Cancer Center GP, LLC, a Delaware limited liability
company, its general partner
By: NM Imperial, LLC, a Delaware limited liability company,
its sole owner
By: NML Real Estate Holdings, LLC, a Wisconsin limited
liability company
By: The Northwestern Mutual Life Insurance Company,
a Wisconsin corporation
By: Northwestern Mutual Investment
Management Company, LLC, a Delaware
limited liability company, its wholly-owned
affiliate
By:
Name:
Its:
Sworn and subscribed to before me this _____ day of __________, 2017.
_________________________________
Name
Notary Public, State of Wisconsin
6
My commission expires:
EXHIBIT A
TO
AFFIDAVIT AS TO DEBTS, LIENS, PARTIES IN POSSESSION
AND GAP COVERAGE
LIST OF UNRECORDED LEASES
16. Space Lease dated April 23, 2009 by and between BCC Cancer Center Venture, L.P., a
Delaware limited partnership and Baylor Health Care System, a Texas non-profit
corporation.
a. First Amendment to Space Lease dated October 25, 2011.
b. Second Amendment to Space Lease dated March 18, 2014.
c. Sublease Agreement dated August ___, 2013 by and between Baylor Health Care
System, a Texas non-profit corporation and Baylor Research Institute, a Texas
non-profit corporation.
17. Office Lease dated April 8, 2011 by and between BCC Cancer Center Venture, L.P., a
Delaware limited partnership and US Oncology, Inc., a Delaware corporation for Suite
160.
18. Office Lease dated April 8, 2011 by and between BCC Cancer Center Venture, L.P., a
Delaware limited partnership and US Oncology, Inc., a Delaware corporation for 154,927
square feet on floor 1 and floor 3 of the Property.
a. First Amendment to Office Lease dated July 7, 2011.
b. Letter Agreement dated July 7, 2011 regarding access to the Isolated Space, as
defined therein.
c. Sublease dated August ___, 2013 by and between US Oncology, Inc., a Delaware
corporation and Baylor University Medical Center, a Texas nonprofit corporation.
7
JV333508/335195
Baylor Cancer Center
EXHIBIT N
TENANT NOTICE LETTER
_____________________, 20__
Dear Tenant:
This is to advise you that as of ___________________, 20__, ______________________
("Buyer") has acquired the Property commonly known as _________________________
("Property") and ______________________________________ is now the property manager of
the Property. The leasing office address of the Buyer's property manager is:
______________________________________________
______________________________________________
______________________________________________
All future payments of rent and other charges due under your lease, should be made payable to
_____________________ and delivered to the above-referenced leasing office. Your security
deposit, if any, has also been transferred to Buyer and Buyer shall be responsible for its return to
you pursuant to the terms of your lease agreement.
Should you have any questions concerning the acquisition of the Property, please call the
property manager at ____________________________.
Very truly yours,
SELLER: [OR PROPERTY MANAGER ON BEHALF OF SELLER]
By:____________________________________
Name: ________________________________
Its: ___________________________________
BUYER:
By:
Name:
Its:
EXHIBIT O
JV333508/335195
Baylor Cancer Center
ASSIGNMENT AND ASSUMPTION
OF
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF REAL ESTATE PURCHASE AND
SALE AGREEMENT ("Assignment") is made as of__________________, 20__ by and
between ________________________________________ ("Original Buyer") and
___________________________________________ ("Assuming Buyer") with respect to the
following:
RECITALS
A. Original Buyer and BCC CANCER CENTER VENTURE, L.P., a Delaware
limited partnership ("Seller") have entered into that certain Real Estate Purchase and Sale
Agreement dated as of June ____, 2017 (the "Agreement"), wherein Seller has agreed to sell to
Original Buyer, and Original Buyer has agreed to purchase from Seller, certain real property and
improvements located thereon as described in the Agreement ("Property").
B. Original Buyer desires to assign its interest in the Agreement to Assuming Buyer,
and Assuming Buyer desires to assume such interest, all as hereinafter provided.
AGREEMENT
In consideration of the foregoing Recitals and the mutual covenants and agreements
contained in this Assignment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Original Buyer and Assuming Buyer agree as
follows:
1. Assignment of Agreement Original Buyer hereby assigns to Assuming Buyer all
of Original Buyer's right, title and interest in and to the Agreement, and Assuming Buyer hereby
accepts such assignment. Assuming Buyer hereby assumes and agrees to perform, and to be
bound by, all of the terms, covenants, conditions, and obligations imposed upon or assumed by
Original Buyer under the terms of the Agreement.
2. Joint and Several Liability Original Buyer shall not be released from any
existing obligations under the Agreement as a result of this Assignment, and notwithstanding
limitations set forth in Section 16.11 of the Agreement, Assuming Buyer hereby agrees to be
jointly and severally liable with Original Buyer for all representations, warranties, indemnities,
waivers, releases, and other obligations and undertakings set forth in the Agreement, including,
without limitation, the obligations and undertakings set forth in the Sections of the Agreement
entitled “Buyer’s Reliance on Own Investigations; "AS-IS" Sale," "Buyer Indemnity" and
"Release".
2
3. Representations and Warranties of Assuming Buyer Assuming Buyer hereby
represents and warrants to Seller that:
(a) Assuming Buyer is directly or indirectly controlled by Original Buyer;
(b) Assuming Buyer, and the individuals signing this Assignment on behalf of
Assuming Buyer, have the full, legal power, authority, and right to execute and deliver
and to perform their legal obligations under this Agreement. Assuming Buyer’s
performance hereunder and the transactions contemplated hereby have been duly
authorized by all requisite action on the part of Assuming Buyer and no remaining action
is required to make this Agreement binding on Assuming Buyer.
(c) Assuming Buyer is not, and shall not become, a person or entity with whom U. S.
persons or entities are restricted from doing business with under regulations of the Office
of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those
named on OFAC’s Specially Designated and Blocked Persons list) or under any statute,
executive order (including the September 24, 2001, Executive Order Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism), or other governmental action, and is not and shall not engage in any
dealings or transactions or be otherwise associated with such persons or entities.
4. Miscellaneous
(a) Entire Agreement. The Agreement, together with this Assignment, embodies the
entire understanding between Original Buyer and Assuming Buyer with respect to
its subject matter and can be changed only by an instrument in writing signed by
Original Buyer and Assuming Buyer and approved in writing by Seller.
(b) Time of Essence. Time is of the essence of each and every term, condition,
obligation and provision hereof.
(c) Counterparts. This Assignment may be executed in one or more counterparts,
including facsimile counterparts, each of which shall be deemed an original but
all of which, taken together, shall constitute the same Assignment.
(d) Applicable Law. This Assignment shall be governed by and construed and
enforced in accordance with the laws of the state in which the Property is located
without regard to conflicts of law principles.
(e) Capitalized Terms. Capitalized terms used in this Assignment shall have the
same meaning as set forth in the Agreement unless otherwise specifically defined
herein.
3
IN WITNESS WHEREOF, this Assignment has been executed as of the day and year set
forth above.
ORIGINAL BUYER: _________________________________________
By: _______________________________________
Name: ____________________________________
Title: _____________________________________
ASSUMING BUYER: __________________________________________
By: _______________________________________
Name: ____________________________________
Title: _____________________________________