exv10w7





Exhibit 10.7




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;


 


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(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.


 


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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 with
Environmental Laws.



6.1.7 Loan Documents. The Loan Agreement, Note, and Mortgage described on Schedule
4.1 are all of the documents documenting the terms of the Loan.



6.1.8 Loan Status. Neither FB S. Plains Financing, LLC, James. B. Swickey, David W.
Durrett, Capital Investors of Oklahoma, LLC, First Physicians Realty Group, LLC, Rural Hospital
Acquisition, L.L.C., nor Seller is in default under the Loan and none would be in default under the
Loan with the giving of notice or the passage of time or both. The outstanding balance of the Loan
(including accrued interest) on the date of this Agreement is $4,555,042.37.



6.1.9 Seller’s Constituent Documents. Seller has delivered to Buyer true and complete
copies of Seller’s Articles of Organization and Operating Agreement and all amendments thereof.



6.2 Survival of Representations and Warranties. Seller’s liability for its
representations and warranties shall survive the closing and Buyer’s acceptance of the deed to and
possession of the Property. By closing and accepting the deed and possession of the Property,
Buyer shall not be deemed to have waived Seller’s obligation to deliver possession of the Property
in the condition described in this Agreement or to have waived the benefit of Seller’s
representations and warranties. If after the closing Buyer determines that the Property delivered
to it is not in such condition, Buyer shall so notify Seller, and Seller, at its expense, shall
promptly place the Property in such condition. Seller’s liability for its representations and
warranties and Buyer’s ability to rely on them in this Agreement will not be deemed waived or
otherwise affected by any investigation made by or on behalf of Buyer or James B. Swickey’s
ownership of a membership interest in Buyer, and no knowledge of James B. Swickey shall be
imputed to Buyer for purposes of this Agreement or otherwise.


 


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6.3 Environmental Definitions.



6.3.1 Claim. “Claim” means any legal liability arising from the environmental
condition of the Property or under Environmental Laws, including requests by any regulatory agency
with authority to request information, regulate any activity, product, waste or contaminant onsite,
third party claims, actions triggered by any applicable Environmental Laws, with or without
regulatory agency involvement.



6.3.2 Environmental Contamination. “Environmental Contamination” means the release or
presence of any Hazardous Substance as defined by CERCLA, Hazardous Waste as defined by RCRA, Toxic
Substance as defined by TSCA, Pesticide/Herbicide as defined by FIFRA, gasoline/oil or hydrocarbon
constituent, PCB’s, asbestos, nonhazardous industrial solid waste, solid waste, pollutant,
contaminant, or any other regulated substance as defined by any applicable Environmental Law.



6.3.3 Environmental Laws. “Environmental Laws” means all current and future laws,
ordinances, and regulations related to the protection of human health and the environment, or
natural resources, including all orders and regulations issued pursuant thereto.



7. Conditions. The obligations of Buyer to close and purchase the Property shall be
subject to and conditioned upon the satisfaction, at or before the closing, of all the conditions
set out below, which Buyer may waive in its absolute discretion. Seller shall use reasonable
efforts to cause the satisfaction of all of the conditions below.



7.1 Performance. Seller shall have performed all of its obligations under this
Agreement.



7.2 Accuracy of Representations and Warranties. All representations and warranties of
Seller in this Agreement shall be true and correct in all respects on and as of the closing date as
though made on that date without reference to any certificate delivered under Section 5.1(e).



7.3 Other Closings. The closings of the transactions contemplated by the Stock
Purchase Agreement and the Asset Purchase Agreement shall have occurred.



7.4 Foxborough Capital. Buyer and Foxborough Capital shall have entered into an
Amended and Restated Subordinated Debenture in the amount of the purchase price of the Property
with terms that are consistent with the terms of the Loan.



7.5 Foxborough Management. Foxborough Management shall have assigned to Buyer all of
the outstanding membership interests in FB S. Plains Financing, LLC free of all security interests,
assignments, pledges, and other encumbrances and delivered to Buyer a Good Standing Certificate for
FB S. Plains Financing, LLC issued by the Oklahoma Secretary of State no earlier than June 23,
2011.


 


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8. Miscellaneous.



8.1 Construction. The rule of construction that an agreement is to be construed most
strictly against the party who drafted the document shall not be applicable to this Agreement
because all parties participated in the preparation of this Agreement. “Includes” and “including”
are not limiting. References to sections and exhibits are to sections and exhibits of this
Agreement unless otherwise indicated. The headings in this Agreement are for convenience and
reference only and do not define or limit the scope or content of this Agreement or otherwise
affect its provisions. Any reference to “this Agreement” is a reference to this Agreement as a
whole, and is not limited to the particular section, clause, schedule, exhibit, or provision in
which the reference appears, and to this Agreement as amended, supplemented, replaced, or assigned
from time to time. All pronouns refer to the masculine, feminine, or neuter, singular, or plural,
as the identity of the person or persons may require, unless the context clearly indicates
otherwise.



8.2 Time. If the last day of any time period falls on a Saturday, Sunday, or legal
holiday, the period shall be extended to end on the next day that is not a Saturday, Sunday, or
legal holiday. Time is of the essence of this Agreement.



8.3 Notice. Any notice, request, demand, instruction, or other document to be given
under this Agreement shall be in writing and shall be delivered in person or by FedEx or a similar
overnight courier or by United States certified mail, return receipt requested, with postage
prepaid, and addressed to the parties at the respective addresses below. Delivery shall be
effective (i) upon receipt if delivered in person prior to 5:00 p.m. local time at the address of
the addressee, or on the next business day if delivered after 5:00 p.m. local time or on a
Saturday, Sunday or legal holiday, (ii) one business day after having been delivered to FedEx or a
similar courier for next-day delivery, and (iii) three business days after mailing if mailed. A
party may change its address by service of a notice of such change in accordance with this section.



8.4 Brokerage Commission. Each party shall indemnify and hold harmless the other from
and against any and all claims, losses, damages, costs, or expenses arising out of or resulting
from any agreement alleged to have been made by the indemnifying party or on its behalf with any
broker or finder in connection with this Agreement or the transaction contemplated by this
Agreement.



8.5 Counterparts. This Agreement may be executed in one or more counterparts. It
shall not be necessary for the signature of more than one party to appear on any single
counterpart. Each counterpart will be deemed to be an original of this Agreement, and all
counterparts together shall constitute one agreement. The exchange of executed counterparts of
this Agreement or of signature pages by facsimile or other electronic transmission shall constitute
effective execution and delivery of this Agreement, and such counterparts may be used in lieu of
the original for all purposes.



8.6 Attorneys’ Fees. In any action between the parties relating to this Agreement,
the prevailing party shall be entitled to an award of its attorneys’ fees and costs.


 


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8.7 Entire Agreement. This Agreement is the final expression of the entire agreement
of the parties regarding Buyer’s purchase of the Property. This Agreement supersedes all prior
agreements and understandings between the parties regarding such subject. This Agreement may not
be amended, modified, or waived except by a written agreement designated as an amendment of this
Agreement and signed by the party against whom it is to be enforced.




EXECUTED as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	SOUTHERN PLAINS ASSOCIATES, L.L.C., an 

Oklahoma limited liability company
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 	 	 	 	David Hirschhorn, Manager
	 
	 	 	 	 	 	 
	 	 	Address:	 	6501 Broadway Extension, Suite 200
	 

	 	 	 	 	 	Oklahoma City, OK 73116
	 
	 	 	 	 	 	 
	 	 	With a copy to:
	 
	 	 	 	 	 	 
	 	 	Shawn J. Roberts

Shawn J. Roberts, PC

1233 E. 33rd Street

Edmond, OK 73013
	 
	 	 	 	 	 	 
	 	 	SOUTHERN PLAINS ASSOCIATES II, LLC,
 an Oklahoma
limited liability company
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Brad Swickey, Manager

	 
	 	 	 	 	 	 
	 	 	Address:	 	c/o Robert M. Byers
	 

	 	 	 	 	 	Foundation HealthCare Affiliates
	 

	 	 	 	 	 	14000 N. Portland
	 

	 	 	 	 	 	Oklahoma City, OK 73134
	 
	 	 	 	 	 	 
	 	 	With a copy to:
	 
	 	 	 	 	 	 
	 	 	J. Michael Nordin

McAfee & Taft

Tenth Floor, Two Leadership Square

211 N. Robinson Avenue

Oklahoma City, Oklahoma 73102-7103






 


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EXHIBIT “A”




Legal Description




TRACT 1



A tract of land in the Northeast Quarter (NE/4) of the Southwest Quarter (SW/4) of Section
Twenty-nine (29), Township Seven (7) North, Range Seven (7) West of the Indian Meridian, Grady
County, Oklahoma, described as follows:



Beginning at a point 330 feet West and 30 feet North of the Southeast Corner of the Northeast
Quarter (NE/4) of the Southwest Quarter (SW/4) of Section Twenty-nine (29), Township Seven (7)
North, Range Seven (7) West;



Thence West 208.7 feet,




Thence North 492.4 feet,




Thence East 80.7 feet.




Thence North 107.65 feet,




Thence East 128 feet,




Thence South 600.05 feet to the Point of Beginning;




AND




TRACT 2




A tract of land situated in the Northeast Quarter (NE/4) of the Southwest Quarter (SW/4) of Section
Twenty-nine (29), Township Seven (7) North, Range Seven (7) West of the Indian Meridian, Grady
County, Oklahoma, described as follows:



Beginning at a point 822.4 feet West of the Southeast Corner of the Northeast Quarter (NE/4) of the
Southwest Quarter (SW/4) of Section Twenty-nine (29), Township Seven (7) North, Range Seven (7)
West,



Thence North 447.4 feet,




Thence East 283.7 feet,




Thence North 75 feet,




Thence West 313.7 feet,




Thence South 522.4 feet,




Thence East 30 feet to the Point of Beginning;



 


 








 








AND




TRACT 3




A tract of land in the South Half (S/2) of the Northeast Quarter (NE/4) of the Southwest Quarter
(SW/4) of Section Twenty-nine (29), Township Seven (7) North, Range Seven (7) West of the Indian
Meridian, described as follows:



Beginning at a point 538.7 feet West and 218.4 feet North of the Southeast Corner of the
Northeast Quarter (NE/4) of the Southwest Quarter (SW/4) of
Section Twenty-nine (29), Township
Seven (7) North, Range Seven (7) West of the Indian Meridian,



Thence North 34°01’ West a distance of 48.3 feet,




Thence North 99 feet,




Thence West 150 feet,




Thence
North 30°00’ West a distance of 34.3 feet,




Thence West 89.5 feet,




Thence North 60 feet,




Thence East 283.7 feet,




Thence South 229 feet to the Point of Beginning;




LESS AND EXCEPT the following described tract:




Beginning
at a point 732.8 feet West and 387.1 feet North of the Southeast Corner of the
Northeast Quarter (NE/4) of the Southwest Quarter (SW/4) of Section Twenty-nine (29),



Thence West 89.5 feet;




Thence North 60 feet;




Thence East 54.9 feet;




Thence South 30°00’ East 69.3 feet to the Point of Beginning;




TRACT 4



A tract of land in the Southwest Quarter (SW/4) of Section Twenty-nine (29), Township
Seven (7) North, Range Seven (7) West, more particularly described by metes and bounds as
follows:



Beginning at a point 852.4 feet West and 522.4 feet North of the Southeast Corner of the
Northeast Quarter (NE/4) of the Southwest Quarter (SW/4) of Section Twenty-nine (29), Township
Seven (7) North, Range Seven (7) West,


 


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Thence North 717.25 feet;




Thence
North 63°07’ East 177.7 feet;




Thence East 366 feet;




Thence South 690 feet;




Thence West 128 feet;




Thence
South 107.65 feet;




Thence
West 394.7 feet to the Point of Beginning, Grady County.




AND



TRACT 5



Lots Eight (8), Nine (9), Thirty-five (35) and Thirty-six (36) in Block “A” in WEST MINSTER
PLACE, an addition to the City of Chickasha, Oklahoma, according to the recorded plat
thereof.




 


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SCHEDULE 3.1




Permitted Exceptions





	1.	 	Ad valorem taxes for 2011.

	 
	2.	 	All interest in and to all oil, gas, coal and other minerals and all rights pertaining
thereto.

	 
	3.	 	Lease between Southern Plains Medical Center, Inc. and Buyer dated the closing date.

	 
	4.	 	Right-of-Way in favor of Public Service Company of Oklahoma, recorded in Book 923, Page
19.

	 
	5.	 	Easement in favor of the Public recorded in Book 663, Page 665.

	 
	6.	 	Right-of-Way in favor of Public Service Company of Oklahoma, recorded in Book 843, Page
701.

	 
	7.	 	Easement in favor of Chickasha Clinic recorded in Book 1006, Page 62.

	 
	8.	 	Plat of Westminster Place filed April 26, 1909 in New Plat Book 2, Page 75.

	 
	9.	 	Mortgage dated effective January 13, 2010, recorded in Book 4244, Page 389.

	 
	10.	 	The following matters disclosed by an ALTA/ACSM survey made by Bradley G. Wells on
January 6, 2010:







	 	a)	 	Portion of Existing Building lying within the subject property
encroaches over the 24-foot Road Easement recorded in Book 1006, Page 62, as
shown on plat of survey;







	 	b)	 	Existence of a 10-foot front building set back line, a 5-foot side
setback line and a 20-foot rear set back line, all pursuant to zoning as shown
on plat of survey;







	 	c)	 	Asphalt Paving and Curbing protruding across the subject
property’s East and South property lines, as shown on plat of survey;







	 	d)	 	Various light poles and power lines encroaching across and off of
property for which no recorded utility easements are found, as shown on plat of
survey; and







	 	e)	 	Encroachment of fence line onto and off of the subject property’s
West property line and the rights, if any, of adjacent property owners in and
to that portion of the subject premises lying between the property line and the
fence inside said line, as shown on plat of survey.







 


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