REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT is made as of June 30, 2011 (the “Effective Date”), between SOUTHERN PLAINS ASSOCIATES, L.L.C., an Oklahoma limited liability company (“Seller”), and SOUTHERN PLAINS ASSOCIATES II, LLC, an Oklahoma limited liability company (“Buyer”).
The parties agree as follows:
1. Sale and Purchase . Seller agrees to sell and Buyer agrees to purchase the real property at 2222 W. Iowa Ave., Chickasha, Oklahoma, described on Exhibit “A” and all improvements on and appurtenances to the real property (the “Property”).
2. Purchase Price . The purchase price for the Property shall be an amount equal to the balance of the loan by First Liberty Bank to FB S. Plains Financing, LLC (the “Loan”) that is described in the Loan Agreement dated January 13, 2010, between FB S. Plains Financing, LLC, as borrower, James. B. Swickey, David W. Durrett, Capital Investors of Oklahoma, LLC, First Physicians Realty Group, LLC, Rural Hospital Acquisition, L.L.C., and Seller, as guarantors, and First Liberty Bank (the “Loan Agreement”), and evidenced by the $4,700,000 First Amended and Restated Promissory Note dated January 13, 2010, executed and delivered by FB S. Plains Financing, LLC and payable to the order of First Liberty Bank (the “Note”), outstanding on the closing date, but not more than $4,555,042.37.
3. Closing . The closing of the sale of the Property shall occur in the offices of First American & Title Trust Company, 501 North Walker, Suite 170, Oklahoma City, Oklahoma 73102, contemporaneously with the closings of the transactions contemplated by the Stock Purchase Agreement dated the date of this Agreement between Buyer, RHA Anadarko, Inc., and First Physicians Capital Group, Inc. (the “Stock Purchase Agreement”) and the Asset Purchase Agreement dated the date of this Agreement between Buyer and Southern Plains Medical Center, Inc. (the “Asset Purchase Agreement”). At or before the closing, Seller and Buyer shall each take such actions and deliver the duly executed documents necessary or appropriate to close the sale as described in this Agreement. All documents shall be reasonably satisfactory to the legal counsel for the parties. The actions to be performed and the documents to be delivered at the closing include those described in this section.
3.1 Seller’s Acts and Deliveries . Seller shall deliver the following:
(a) A duly executed and acknowledged general warranty deed conveying to Buyer indefeasible fee simple marketable title to the Property free and clear of any lien, claim, Encumbrance, restriction, or other matter other than the items listed on Schedule 3.1 (the “Permitted Exceptions”);
(b) Evidence of Seller’s satisfaction of items 4, 5, 6, and 8 through 14 on Schedule B — I of the commitment for an ALTA owner’s policy of title insurance No. 1556827-OK11, First Revised 4-20-2011 (the “Title Commitment”) issued by First American Title & Trust Company (the “Title Company”) and any additional requirements to the issuance of the title insurance policy described in Section 4.1(c) imposed by the Title Company (other than those that pertain only to Buyer);
(c) A copy of the Title Commitment marked and initialed by the Title Company to evidence the satisfaction of all requirements and the Title Company’s binding obligation to issue to Buyer an owner’s policy of title insurance insuring in Buyer indefeasible fee simple marketable title to the Property with no exceptions other than the Permitted Exceptions and with the following endorsements: (i) owner’s comprehensive endorsement, (ii) nonimputation endorsement regarding James B. Swickey, (iii) environmental protection endorsement (ALTA 8.1), (iii) access and entry endorsement, (iv) same as survey endorsement, and (v) deletion of arbitration endorsement;
(d) An affidavit of Seller sufficient to relieve Buyer of its withholding obligations under § 1445 of the Internal Revenue Code of 1986, as amended;
(e) Seller’s certification dated the Closing Date, signed by the managers and members of Seller, certifying the articles of organization and operating agreement of Seller and the authority of the managers of Seller to execute, deliver, and perform this Agreement;
(f) A termination of the Lease of a portion of the Property executed on December 16, 2009, by Seller, as landlord, and Southern Plains Medical Center, Inc. and RHA Anadarko, LLC, as tenants, duly executed and acknowledged by Seller, Southern Plains Medical Center, Inc., and RHA Anadarko, LLC;
(g) A lease of the Property between Buyer and Southern Plains Medical Center, Inc. duly executed and acknowledged by Southern Plains Medical Center, Inc. and in form and substance acceptable to Buyer;
(h) A First Loan Modification Agreement in form and substance acceptable to Buyer and duly executed by First Liberty Bank in which First Liberty Bank:
i. Consents to the conveyance of the Property to Buyer,
ii. Consents to the termination of the existing lease of the Property,
iii. Consents to the new lease of the Property between Buyer and Southern Plains Medical Center, Inc.,
iv. Confirms that no default has occurred under the Loan and that no event has occurred such that with the giving of notice or the passage of time, or both, a default would exist under the Loan, and
v. Confirms the outstanding principal balance of the Loan.
(i) Evidence of Seller’s payment of any amount necessary to reduce the outstanding balance of the loan to the maximum amount provided in Section 2;
(j) Payment of the expenses and prorations payable by Seller under this Agreement;
(k) A settlement statement; and
(l) Possession of the Property in substantially the condition existing on the Effective Date.
3.2 Buyer’s Acts and Deliveries . Buyer shall deliver the following:
(a) A duly executed First Loan Modification Agreement in form and substance reasonably acceptable to Buyer and First Liberty Bank;
(b) A lease of the Property between Buyer and Southern Plains Medical Center, Inc. in form and substance acceptable to Buyer; and
(c) A settlement statement.
4. Costs . Seller pay the costs of filing the deed and all other instruments required by this Agreement, the Oklahoma Documentary Stamp Tax applicable to the deed, all abstracting and title examination costs of the Title Company, the premium for the title insurance policy (including endorsements), any fees and expenses associated with Buyer’s assumption of the Loan, and the closing fees and expenses of the Title Company.
5. Taxes; Prorations . Seller shall be responsible for the payment of all ad valorem real estate taxes and assessments assessed against the Property for the years prior to the year of the closing and all matured and unmatured special assessments against the Property. Ad valorem real estate taxes for the year of the closing shall be prorated between Seller and Buyer. If the actual amount of ad valorem taxes for the year of the closing cannot be determined at the closing, the proration shall be on the basis of the amount assessed for the prior year, adjusted to reflect changes in assessed value or rates known to be in effect for the year of the closing.
6. Seller’s Representations and Warranties .
6.1 Seller’s Representations and Warranties . To induce Buyer to enter into this Agreement and to accept title to and possession of the Property, Seller represents and warrants to Buyer as follows:
6.1.1 Authority . Seller has the power and authority to execute, deliver, and perform this Agreement. The person signing this Agreement on behalf of Seller is authorized to do so. The execution, delivery, and performance of this Agreement by Seller have been duly authorized by all requisite action of Seller and its managers and members, and no further action is necessary to authorize such action or to make this Agreement the valid and binding obligation of Seller. The execution, delivery, and performance of this Agreement by Seller will not violate any provision of Seller’s organizational documents or applicable law.
6.1.2 Pending Actions . There is no action, suit, arbitration, administrative or judicial proceeding, order, or judgment pending or, to Seller’s knowledge, threatened against Seller that pertains to the Property or the transaction contemplated by this Agreement.
6.1.3 Condemnation . To Seller’s knowledge, there are no condemnation or eminent domain proceedings of any type pending or threatened that relate to any part of the Property, and Seller has received no notice, oral or written, of the desire of any public authority or other entity to take or use any part of the Property.
6.1.4 Condition; Compliance . All improvements on the Property, including the electrical, heating, air conditioning, and ventilation, plumbing, sewerage systems, are in good operating condition and repair, subject only to ordinary wear and tear, which is not such as to affect adversely the operation of the Property in the ordinary course of business. The Property is in compliance with all applicable zoning ordinances, building codes, and other applicable laws and regulations, including those related to the protection of human health, safety, the environment, wildlife, or natural resources. No treatment has been undertaken with respect to termite infestation, mold, fungi, or dry rot on the Property, other than normal periodic service.
6.1.5 UST’s . There are no underground storage tanks at the Property.
6.1.6 Environmental . The Property has been and continues to be in compliance with Environmental Laws and free of Environmental Contamination. There is no basis for any Claims based upon any Environmental Contamination of the Property or by any failure by Seller to comply