FACILITIES PURCHASE AGREEMENT
AMONG
MONARCH PROPERTIES, LP,
TRANS HEALTHCARE, INC.,
XXXXXX MANAGEMENT CORPORATION
AND
THE ENTITIES LISTED ON ATTACHED EXHIBIT A
DATED AS OF JUNE __, 1998
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS....................................................................2
1.1 Affiliate.......................................................2
1.2 Agreement.......................................................2
1.3 Bills of Sale...................................................2
1.4 Claims..........................................................2
1.5 Closing.........................................................2
1.6 Closing Date....................................................2
1.7 Consent and Subordination Agreement. ..........................2
1.8 Contracts.......................................................2
1.9 Deeds...........................................................3
1.10 Deferred Maintenance Adjustment.................................3
1.11 Effective Date..................................................3
1.12 Environmental Laws..............................................3
1.13 Environmental Remediation.......................................3
1.14 Escrow Agent....................................................3
1.15 Escrow Agreement................................................4
1.16 Facilities......................................................4
1.17 Facility Management Agreement...................................4
1.18 Final Financial Statements; Final Balance Sheet.................4
1.19 Financial Statements of the Facilities..........................4
1.20 Guaranty........................................................4
1.21 Hazardous Materials.............................................4
1.22 Improvements....................................................4
1.23 Intangible Property.............................................4
1.24 Knowledge.......................................................5
1.25 Law.............................................................5
1.26 MAI Appraisal...................................................5
1.27 Manager.........................................................5
1.28 Master Lease....................................................5
1.29 Monarch.........................................................5
1.30 Non-Competition Agreement.......................................5
1.31 Permits.........................................................5
1.32 Permitted Liens.................................................6
1.33 Personal Property...............................................6
1.34 Pledge Agreement................................................6
1.35 Purchase Price..................................................6
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TABLE OF CONTENTS
Page
1.36 Real Property...................................................6
1.37 Release.........................................................6
1.38 Reasonable Inquiry..............................................6
1.39 Security Agreement..............................................6
1.40 Sellers' Liabilities............................................6
1.41 Seller Licenses.................................................7
1.42 Sellers' Assets.................................................7
1.43 Survey..........................................................7
1.44 Title Commitment................................................7
1.45 Title Company...................................................7
1.46 Title Insurance Policy..........................................7
1.47 Transaction Documents...........................................8
1.48 UCC Search Report...............................................8
ARTICLE II
PURCHASE AND SALE..............................................................8
2.1 Agreement to Sell and Buy.......................................8
2.2 No Assumption of Liabilities....................................8
2.3 "As Is" Purchase................................................8
ARTICLE III
PURCHASE PRICE.................................................................8
ARTICLE IV
CLOSING........................................................................9
ARTICLE V
TRANSACTION COSTS AND EXPENSES.................................................9
5.1 Transfer Taxes; Sales Taxes.....................................9
5.2 MAI Appraisals..................................................9
5.3 Title Insurance.................................................9
5.4 Surveys/UCC Search Reports......................................9
5.5 Environmental Reports/Remediation...............................9
5.6 Attorneys' Fees.................................................9
5.7 Recording Costs................................................10
5.8 Releases.......................................................10
5.9 Deferred Maintenance Adjustment................................10
5.10 Fee; Commitment Fee............................................10
5.11 Other Items....................................................10
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TABLE OF CONTENTS
Page
ARTICLE VI
POSSESSION....................................................................10
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF SELLERS.....................................11
7.1 Corporate Organization; Good Standing; Corporate Information...11
7.2 Authorization; Enforceability..................................11
7.3 No Violation or Conflict.......................................11
7.4 Assets.........................................................12
7.5 No Litigation..................................................12
7.6 Personal Property and Improvements.............................12
7.7 Real Property and Improvements.................................12
7.8 Zoning.........................................................13
7.9 Leases.........................................................13
7.10 Liabilities....................................................13
7.11 Taxes..........................................................13
7.12 Contracts......................................................13
7.13 Intentionally Omitted..........................................13
7.14 Financial Statements of the Facility owned by such Seller......14
7.15 No Adverse Change..............................................14
7.16 Employment Agreements and Benefits.............................14
7.17 Insurance......................................................14
7.18 Compliance with the Law........................................15
7.19 Transactions with Affiliates...................................16
7.20 Obligations....................................................16
7.21 No Broker......................................................16
7.22 Environmental Compliance.......................................16
7.23 No Attachments.................................................17
7.24 No Options.....................................................17
7.25 Seller Licenses................................................17
7.26 Disclosure.....................................................17
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF XXXXXX......................................18
8.1 Status of Xxxxxx...............................................18
8.2 Validity of Contracts..........................................18
8.3 Authority......................................................18
8.4 No Broker......................................................18
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TABLE OF CONTENTS
Page
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF THI.........................................18
9.1 Status of THI..................................................18
9.2 Validity of Contracts..........................................18
9.3 Authority......................................................19
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF PURCHASER...................................19
10.1 Organization...................................................19
10.2 Authorization; Enforceability..................................19
10.3 No Violation or Conflict.......................................19
10.4 No Broker......................................................19
ARTICLE XI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER..........................20
11.1 Compliance with this Agreement.................................20
11.2 Proceedings and Instruments Satisfactory.......................20
11.3 No Litigation..................................................21
11.4 Representations and Warranties.................................21
11.5 Deliveries at the Closing......................................21
11.6 Regulatory Approvals...........................................22
11.7 Default........................................................22
11.8 Approvals......................................................22
ARTICLE XII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS............................23
12.1 Compliance with this Agreement.................................23
12.2 Proceedings and Instruments Satisfactory.......................23
12.3 No Litigation..................................................23
12.4 Representations and Warranties.................................23
12.5 Deliveries at the Closing......................................23
12.6 Restraints.....................................................24
12.7 Regulatory Approvals...........................................24
12.8 Approvals......................................................24
ARTICLE XIII
ADDITIONAL COVENANTS AND INDEMNIFICATIONS.....................................24
13.1 Transfer Taxes and Fees........................................24
13.2 Cooperation....................................................24
13.3 Additional Instruments.........................................24
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TABLE OF CONTENTS
Page
13.4 Publicity......................................................25
13.5 Confidentiality................................................25
13.6 Indemnifications...............................................25
13.7 Liability for Representations and Warranties Before the
Closing........................................................28
ARTICLE XIV
MISCELLANEOUS.................................................................28
14.1 Entire Agreement; Amendment....................................28
14.2 Governing Law..................................................29
14.3 Assignment.....................................................29
14.4 Notices........................................................29
14.5 Counterparts; Headings.........................................30
14.6 Interpretation.................................................30
14.7 Severability...................................................30
14.8 No Reliance....................................................30
14.9 Binding........................................................31
14.10 Survival.......................................................31
14.11 Allocation of Purchase Price...................................31
14.12 Dispute Attorneys' Fees and Expenses...........................31
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FACILITIES PURCHASE AGREEMENT
THIS FACILITIES PURCHASE AGREEMENT (this "Agreement"), is made and entered
into as of the ___ day of June, 1998, among Monarch Properties, LP, a Delaware
limited partnership, with principal offices at 0000 Xxxxxxx Xxx Xxxxxxxxx,
Xxxxxx, Xxxxxxx 00000 ("Purchaser"), Trans Healthcare, Inc., a Delaware
corporation, with principal offices at 0000 Xxxxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxxxx 00000 ("THI"), Xxxxxx Management Corporation, a [Insert State]
corporation, with principal offices at 000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000 ("Xxxxxx") and each of the entities described on attached Exhibit A (each,
a "Seller" and, collectively, "Sellers").
W I T N E S S E T H:
The circumstances underlying the execution and delivery of this Agreement
are as follows:
A. Capitalized terms used but not otherwise defined herein have the
respective meanings given them in Article I herein.
X. Xxxxxxx are the owners of Sellers' Assets. Sellers desire to sell, and
Purchaser desires to acquire, Sellers' Assets on the terms and conditions set
forth in this Agreement.
C. Upon the acquisition of Sellers' Assets by Purchaser, [THI Affiliate
Lessee] will lease Sellers' Assets from Purchaser under the Master Lease.
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
specified herein. The meanings specified in this Article and elsewhere in this
Agreement are for purposes of this Agreement only and do not purport to have any
significance for any other purpose, including, but not limited to, any
applicable reporting requirements under tax or securities laws, except as the
terms may be used by reference in other agreements between the parties to this
Agreement. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular shall be held
to include the plural and vice versa, unless this Agreement requires otherwise.
1.1 Affiliate. "Affiliate" shall have the meaning set forth in Section 7.19
hereof.
1.2 Agreement. "Agreement" shall mean this Facilities Purchase Agreement,
together with the Exhibits and Schedules attached hereto, as the same may be
amended from time to time in accordance with the terms hereof.
1.3 Bills of Sale. "Bills of Sale" shall mean, collectively, the xxxx of
sale to be executed by each Seller and conveying to Purchaser all of the
Personal Property for each Facility owned by such Seller.
1.4 Claims. "Claims" shall have the meaning set forth in Section 13.6
hereof.
1.5 Closing. "Closing" shall mean the closing held at 10:00 a.m., local
time, on the Closing Date, at the offices of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx. All transactions occurring at
the Closing shall be deemed to have occurred simultaneously, and no one
transaction shall be deemed to be complete until all transactions are completed.
1.6 Closing Date. "Closing Date" shall mean the date that Purchaser
acquires Sellers' Assets from Sellers and leases Sellers' Assets to [THI
Affiliate Lessee] under the Master Lease.
1.7 Consent and Subordination Agreement. "Consent and Subordination
Agreement" shall mean the agreement to be executed among THI, Xxxxxx and
Purchaser pursuant to which certain management fees payable under the Facility
Management Agreement are subordinated to Purchaser's rights under the Master
Lease upon an Event of Default under the Master Lease. [FOR POSSIBLE XXXXXX
MANAGEMENT AGREEMENT]
1.8 Contracts. "Contracts" shall mean those contracts, agreements, leases,
rights of renewal thereto and commitments with respect to each of the Facilities
or with respect to the
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operation of any of the Facilities (a) to which Seller or any of the Facilities
is a party or (b) by which Sellers or any of the Facilities is bound and that
are listed on Schedule 1.8 hereto.
1.9 Deeds. "Deeds" shall mean, collectively, the general warranty deed (or
such other form of deed applicable to the state in which the Facility is
located) in recordable form, executed by each Seller and conveying to Purchaser
fee simple title to the real property owned by such Seller, free and clear of
all liens and encumbrances other than the Permitted Liens.
1.10 Deferred Maintenance Adjustment. "Deferred Maintenance Adjustment"
shall mean, with respect to each Facility, the amount set forth opposite such
Facility's name on Schedule 1.10 hereto to cover the potential costs to be
incurred by THI after the Effective Date in making the repairs or modifications
required at such Facility and described on Schedule 1.10 hereto and any
Environmental Remediation described on Schedule 1.13 hereto.
1.11 Effective Date. "Effective Date" shall mean the Closing Date.
1.12 Environmental Laws. "Environmental Laws" shall mean all federal,
state, and local laws, statutes, ordinances, regulations, policies, rules,
directives, guidelines, Permits, licenses, criteria and rules of common law now
or hereafter in effect, and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the regulation and protection of
human health, safety, the environment and natural resources (including, without
limitation, ambient air, surface water, groundwater, wetlands, land surface or
subsurface strata, and wildlife, aquatic species and vegetation), including,
without limitation, relating to emissions, discharges, releases or threatened
releases of Hazardous Materials (as defined in Section 7.22 hereof) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials. Environmental Laws
include, but are not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Federal Insecticide, Fungicide, and
Rodenticide Act, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Clean Air Act, the Clean Water Act, the Occupational
Safety and Health Act, and the Safe Drinking Water Act, and as the same may be
amended, modified or supplemented, the regulations promulgated pursuant thereto,
and their state and local counterparts or equivalents.
1.13 Environmental Remediation. "Environmental Remediation" shall mean,
with respect to each Facility, the work described opposite such Facility's name
on Schedule 1.13 hereto to be performed by THI after the Closing for the
investigation and/or remediation of the environmental conditions at such
Facility described on Schedule 1.13 hereto.
1.14 Escrow Agent. "Escrow Agent" shall mean Fidelity National Title
Insurance Company of New York.
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1.15 Escrow Agreement. "Escrow Agreement" shall mean the agreement among
THI, Purchaser and Escrow Agent pursuant to which the Deferred Maintenance
Adjustment is to be held and disbursed.
1.16 Facilities. "Facilities" shall mean the Real Property, Improvements
and Personal Property constituting the health care facilities described on
Exhibit B hereto. Reference to any one of the Facilities individually and not
specifically shall be referred to herein as a "Facility".
1.17 Facility Management Agreement. "Facility Management Agreement" shall
mean the facility management agreement, in form and substance satisfactory to
Purchaser, to be executed by Xxxxxx and THI, pursuant to which Xxxxxx agrees to
provide certain management services to the Facilities leased by THI, pursuant to
the Master Lease. [IF XXXXXX MANAGES THE FACILITIES]
1.18 Final Financial Statements; Final Balance Sheet. "Final Financial
Statements" shall mean the unaudited Financial Statements of the Facilities as
of the Effective Date, including a balance sheet for each of the Facilities as
of such date, together with the related unaudited statement of income and
statement of cash flows for the period from January 1, 1998 through the
Effective Date, and the notes thereto. "Final Balance Sheet" shall mean the
balance sheet included in the Final Financial Statements.
1.19 Financial Statements of the Facilities. "Financial Statements of the
Facilities" shall mean the unaudited Financial Statements for each of the
Facilities as of December 31, 1997, as described in Schedule 1.19 hereto.
1.20 Guaranty. "Guaranty" shall mean the guaranty, in form and substance
satisfactory to Purchaser, executed and delivered by THI to Purchaser
concurrently with the execution and delivery of the Master Lease, pursuant to
which THI guarantees to Purchaser the payment and performance by [Insert THI
Lessee Subsidiary] of its obligations under the Master Lease.
1.21 Hazardous Materials. "Hazardous Materials" shall have the meaning set
forth in Section 7.22 hereof.
1.22 Improvements. "Improvements" shall mean, collectively, the buildings
and all attached fixtures constituting the nursing home/adult care facilities
and related improvements, Related Rights and Fixtures, constructed on each of
the Real Properties.
1.23 Intangible Property. "Intangible Property" shall mean (a) all
transferable consents, authorizations, variances or waivers, licenses, permits
and approvals given or issued by any governmental or quasi-governmental agency,
department, board, commission, bureau
4
or other entity or instrumentality having jurisdiction over the respective
Facilities and (b) all rights to use the names of the Facilities set forth on
Schedule 1.23 hereto.
1.24 Knowledge. "Knowledge" of a party shall mean (a) actual knowledge of
an officer or management level employee of such party, with respect to a
corporation, (b) actual knowledge of a general partner, member, managing
director or management level employee of such party, with respect to a
partnership or limited liability company, or (c) actual knowledge of the person
with respect to a natural person.
1.25 Law. "Law" shall mean any federal, state, local or other law,
ordinance, code, or governmental agency requirement of any kind, and the rules,
regulations and orders promulgated thereunder including, without limitation, the
Environmental Laws.
1.26 MAI Appraisal. "MAI Appraisal" shall mean with respect to each
Facility, an appraisal, in form and substance satisfactory to Purchaser,
prepared by an appraiser who is a Member of the Appraisal Institute and is
experienced in appraising properties of the same nature, and in the same
geographical vicinity, as each Facility.
1.27 Manager. "Manager" shall mean [Insert Xxxxxx Subsidiary], a [Insert
State] corporation, with principal offices at 000 Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, which is a subsidiary of Xxxxxx. [IF XXXXXX MANAGES THE
FACILITIES]
1.28 Master Lease. "Master Lease" shall mean the master lease, in form and
substance satisfactory to Purchaser, executed and delivered by Purchaser and
[Insert THI Lessee Subsidiary], concurrently with the Closing, pursuant to which
Purchaser leases to [Insert THI Lessee Subsidiary], and [Insert THI Lessee
Subsidiary] leases from Purchaser, the respective Facilities.
1.29 Monarch. "Monarch" shall mean Monarch Properties, Inc., a Maryland
corporation, with principal offices at 0000 Xxxxxxx Xxx Xxxxxxxxx, Xxxxxx,
Xxxxxxx 00000.
1.30 Non-Competition Agreement. "Non-Competition Agreement" shall mean the
non-competition agreement, in form and substance satisfactory to Purchaser,
executed and delivered by Purchaser, THI, Xxxxxx and Sellers, which prohibits
Xxxxxx and Sellers from providing healthcare services in competition with the
Facilities.
1.31 Permits. "Permits" shall mean all permits, consents, waivers,
exemptions, orders, certificates of need, licenses and governmental and agency
authorizations, registrations and approvals with respect to each of the
Facilities, as listed on Schedule 1.31 hereto. For purposes of this definition,
the term "license" shall mean the permit to own a nursing home and to operate a
nursing home issued to any operator of a nursing home upon application to,
5
and approval by, the health care facilities branch, pursuant to the relevant
state nursing home licensure act, as in effect on the Effective Date.
1.32 Permitted Liens. "Permitted Liens" shall mean those liens,
encumbrances, mortgages, charges, claims, restrictions, pledges, security
interests, impositions and other matters affecting any of the Facilities, as
listed on Schedule 1.32 hereto.
1.33 Personal Property. "Personal Property" shall mean, collectively, the
vehicles, equipment, machinery, furniture, fixtures, furnishings, moveable walls
or partitions, computers or trade fixtures, office equipment, operating supplies
and other tangible real or personal property owned by Sellers and leased to
[Insert THI Lessee Subsidiary] on the Closing Date.
1.34 Pledge Agreement. "Pledge Agreement" shall mean the pledge agreement,
executed and delivered from THI to Purchaser, pursuant to which THI pledges to
Purchaser the stock of [Insert THI Lessee Subsidiary].
1.35 Purchase Price. "Purchase Price" shall mean the sum of $[10,500,000].
[TO BE FINALIZED AFTER NUMBERS REVIEWED]
1.36 Real Property. "Real Property" shall mean, collectively, all of the
land and Improvements located thereon, situated at the addresses as listed on
Exhibit B hereto, that is currently owned by Sellers.
1.37 Release. "Release" shall mean the release, deposit, disposal or
leakage of any Hazardous Material into, upon or under any land or water or air,
or otherwise into the environment, including, without limitation, by means of
burial, disposal, discharge, emission, injection, spillage, leakage, seepage,
leaching, dumping, pumping, pouring, escaping, emptying, placement and the like.
1.38 Reasonable Inquiry. "Reasonable Inquiry" shall have the meaning set
forth in Section 7.22 hereof.
1.39 Security Agreement. "Security Agreement" shall mean the security
agreement, in form and substance satisfactory to Purchaser, pursuant to which
[Insert THI Lessee Subsidiary] grants to Purchaser a security interest in the
Personal Property and Intangible Property in order to secure the obligations of
[THI Subsidiary Lessee] under the Master Lease.
1.40 Sellers' Liabilities. "Sellers' Liabilities" shall mean any and all
liabilities of Sellers or any of the Facilities, whether actual or contingent,
relating to each of the Facilities that are (a) reflected on the Financial
Statements of the Facilities or on Schedule 1.40 hereto or
6
(b) except for liabilities arising from operation of the Facilities on or prior
to the Closing Date, arising under the Contracts.
1.41 Seller Licenses. "Seller Licenses" shall mean, if and as applicable,
all material licenses, Permits and authorizations necessary for the lawful
operation of the respective Facilities, as the Facilities currently are
operated, including all licenses, Permits and authorizations necessary to (a)
lawfully operate all beds contained in the Facilities as nursing home beds, (b)
provide licensed nursing services and any other services currently provided at
the respective Facilities, and (c) receive payment under the Medicare and
applicable state Medicaid programs.
1.42 Sellers' Assets. "Sellers' Assets" shall mean, collectively, the Real
Property, the Facilities, the Personal Property and the Intangible Property.
1.43 Survey. "Survey" shall mean, with respect to a Facility, a survey that
is (a) certified to Purchaser, the applicable Seller, THI and the Title Company,
(b) prepared in accordance with the minimum standard detail requirements and
classifications for ALTA/ASCM land title surveys, as adopted in 1992 by
ALTA/ASCM, including Table A responsibilities and specifications 1-4, 6-11 and
13, and (c) otherwise in form satisfactory to Purchaser.
1.44 Title Commitment. "Title Commitment" shall mean, with respect to a
Facility, a title insurance commitment, issued by the Title Company, committing
the Title Company to insure Purchaser's fee simple title to the applicable
Facility, without the so-called "standard exceptions", in the amount of the
portion of the Purchase Price allocated to such Facility pursuant to Section
14.12 hereof, together with legible copies of all recorded documents referred to
therein.
1.45 Title Company. "Title Company" shall mean Fidelity National Title
Insurance Company of New York.
1.46 Title Insurance Policy. "Title Insurance Policy" shall mean, with
respect to a Facility, a title insurance policy, issued pursuant to the
applicable Title Commitment by the Title Company concurrently with the Effective
Date, that insures Purchaser's fee simple title to the applicable Facility,
without the so-called "standard exceptions", and subject only to the Permitted
Liens. Each Title Insurance Policy shall include the following endorsements, to
the extent available under the law of the state in which the applicable Facility
is located: (a) Form 3.1 completed zoning endorsement, (b) comprehensive
endorsement, (c) access endorsement, (d) survey endorsement, (e) separate tax
parcel endorsement, (f) contiguity endorsement (if the Real Property on which
the applicable Facility is located consists of more than one parcel), and (g)
such other endorsements as Purchaser reasonably may require.
7
1.47 Transaction Documents. "Transaction Documents" shall mean this
Agreement, the Master Lease, the Memorandum of Lease, the Guaranty, the Security
Agreement, the Non- Competition Agreement, the Escrow Agreement, the Closing
Escrow Agreement, the Pledge Agreement and all other agreements related thereto
executed and delivered by the parties to this Agreement.
1.48 UCC Search Report. "UCC Search Report" shall mean a UCC search report
in the name of each Seller and each Facility conducted at the state and county
level in the state in which each Facility is located and, if different, in the
state in which each Seller is organized and in the state in which the Sellers'
chief executive office is located.
ARTICLE II
PURCHASE AND SALE
2.1 Agreement to Sell and Buy. On the terms and subject to the conditions
set forth in this Agreement, Sellers agree to sell to Purchaser, and Purchaser
agrees to acquire from Sellers, Sellers' Assets.
2.2 No Assumption of Liabilities. Except as specifically set forth in this
Agreement, Purchaser is not acquiring or assuming any liabilities of Sellers,
Cooper, THI, or the Facilities whatsoever, including, without limitation, those
of Seller with respect to Sellers' Assets.
2.3 "As Is" Purchase. Purchaser is acquiring Sellers' Assets without any
express or implied warranties other that those specifically set forth in this
Agreement.
ARTICLE III
PURCHASE PRICE
The Purchase Price shall be payable on the Closing Date by wire
transfer in accordance with wire transfer instructions to be provided by THI and
Sellers. The Purchase Price shall be allocated among the Facilities as set forth
in Section 14.12 herein. Sellers and Purchaser agree that, for purposes of this
Agreement, no portion of the Purchase Price shall be allocated to the Personal
Property or the Intangible Property.
8
ARTICLE IV
CLOSING
On the Closing Date, at the offices of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the documents to be
delivered by Sellers, Cooper, Purchaser, THI and [Insert THI Lessee Subsidiary],
pursuant to Sections 11.5 and 12.5 hereof, shall be delivered and Purchaser
shall deliver to Sellers the Purchase Price.
ARTICLE V
TRANSACTION COSTS AND EXPENSES
The costs of the transaction and the expenses related to the ownership and
operation of the Seller's Assets shall be paid as follows:
5.1 Transfer Taxes; Sales Taxes. [Seller or THI] shall pay all state and
county transfer or excise taxes due on the transfer to Purchaser of title to the
Real Property and the respective Facilities and all assessments and taxes
related to the recording of the corresponding deeds. [Seller or THI] shall pay
any sales tax due on the transfer to Purchaser of title to the Personal
Property, although the parties believe no such tax is due.
5.2 MAI Appraisals. THI shall pay the cost of the MAI Appraisals delivered
to Purchaser.
5.3 Title Insurance. THI shall pay the cost of the Title Commitments and
the premium for the Title Insurance Policies (including any leasehold policies
desired by THI) for the respective Facilities.
5.4 Surveys/UCC Search Reports. THI shall pay the cost of the Surveys and
the UCC Search Reports for the respective Facilities.
5.5 Environmental Reports/Remediation. THI shall pay for the cost of Phase
I environmental assessments for the respective Facilities, for any additional
assessments recommended in the original Phase I environmental assessments, and
for the cost of the Environmental Remediation agreed upon by the parties and as
described on Schedule 1.13 hereto.
5.6 Attorneys' Fees. THI shall pay the reasonable and documented attorneys'
fees, costs and disbursements of Purchaser. Sellers, Xxxxxx and THI shall pay
their own attorneys' fees, costs and disbursements.
9
5.7 Recording Costs. THI shall pay all recording fees relating to the
recording of the deeds.
5.8 Releases. [Seller or THI] shall pay the cost of obtaining and recording
any releases necessary to deliver title to Sellers' Assets in accordance with
the terms of this Agreement.
5.9 Deferred Maintenance Adjustment. At the Closing, THI shall deposit into
escrow with the Escrow Agent the Deferred Maintenance Adjustment attributable to
each of the Facilities.
5.10 Fee; Commitment Fee. At the Closing, THI shall pay to Purchaser a
commitment fee equal to an aggregate of $[Insert Amount]. [TO BE 1% OF THE
PURCHASE PRICE]
5.11 Other Items. Purchaser has no duty to operate any Facility from and
after the Effective Date, such operations to be accomplished solely by [Insert
THI Lessee Subsidiary], subject to the provisions of the Master Lease, or by
Manager pursuant to the Facility Management Agreement. Accordingly, [Insert THI
Lessee Subsidiary] shall be responsible for (a) all revenues and expenses
attributable to each of the Facilities, where attributable to the period before
or after the Effective Date, (b) the real and personal property taxes,
assessments and similar charges that are levied against the Facilities, whether
attributable to the period before or after the Effective Date, (c) all utilities
provided to the Facilities, whether before or after the Effective Date, and (d)
any amounts that have been prepaid, or that remain to be paid, under any of the
Contracts affecting Sellers' Assets.
[NOTE: IF REQUIRED -- MONARCH WILL FINANCE ALL THI EXPENSE/FEE OBLIGATIONS --
BUT WILL NOT CONTRACT TO PAY ANY OF THEM UNDER THIS AGREEMENT]
ARTICLE VI
POSSESSION
At the Effective Date, Purchaser shall be entitled to possession of
Sellers' Assets, subject only to (a) the rights of the patients and residents of
the respective Facilities, (b) any possessory rights granted to any person under
the Permitted Liens and (c) the rights of [Insert THI Lessee Subsidiary] under
the Master Lease.
10
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller hereby represents and warrants to Purchaser that:
7.1 Corporate Organization; Good Standing; Corporate Information. Such
Seller is a corporation, duly organized, validly existing and in good standing
under the laws of the state set forth opposite its name on Exhibit B hereto, and
it has the corporate power and authority to develop, own, operate and lease each
Facility, to carry on its businesses as and in the places where such businesses
are now conducted and where such properties are now developed, owned, leased or
operated, and to enter into the transactions and perform its obligations under
this Agreement, the other Transaction Documents and any other documents and
instruments required to be delivered to which it is or is to become a party and
it is duly qualified as a foreign corporation to do business in the jurisdiction
in which the Facilities are located or in which failure so to qualify would
impair its ability to perform its obligations under this Agreement or any other
Transaction Document.
7.2 Authorization; Enforceability. The execution, delivery and performance
by such Seller of this Agreement, the other Transaction Documents and of all of
the documents and instruments contemplated hereby to be executed and delivered
by it are within the legal and corporate power and authority of such Seller and
have been duly authorized by all necessary legal and corporate action of such
Seller. This Agreement is, the other Transaction Documents are, and the other
documents and instruments required hereby to be delivered by it will be, when
executed and delivered, the valid and binding obligations of such Seller,
enforceable against it in accordance with their respective terms.
7.3 No Violation or Conflict. The execution, delivery and performance of
this Agreement, the Transaction Documents and all of the other documents and
instruments contemplated hereby to be executed and delivered by such Seller does
not and will not conflict with or violate any material Law, judgment, or any
order or decree binding on it or the Articles of Incorporation or By-Laws of
such Seller. Except as indicated on Schedule 7.3(a) hereto, no notice to, filing
or registration with, or authorization, consent or approval of, any person,
entity or governmental or regulatory agency is necessary or required by such
Seller in connection with the execution and delivery of this Agreement, the
Transaction Documents and all of the other documents and instruments
contemplated hereby to be executed and delivered by such Seller or the
consummation by such Seller of the transactions contemplated hereby or the
performance by such Seller of its obligations hereunder. Except as indicated on
Schedule 7.3(b) hereto, since January 1, 1995, such Seller has received no
written notice from any governmental or regulatory agency having jurisdiction
over such Seller's Facility (a) claiming any violation of any Law (which
violation has not been cured or otherwise remedied), or (b) requiring or calling
attention to the need for any work, repairs, construction, alterations or
installation in connection with the Facilities owned by it which is or may be
required in order
11
to comply with any Law (which work, repairs, construction, alterations or
installation has not been completed).
7.4 Assets. The Personal Property, Real Property and Intangibles constitute
all of the assets used in the operation of the Facility owned by it. Such Seller
owns good, valid and clear title to all of the Personal Property owned by it and
to all the other assets, if any, owned by it and used in the operation of the
Facility owned by it, and also including, but not limited to, all assets owned
by such Seller that are reflected in the Financial Statements of the Facilities
related to the Facility owned by it and all assets acquired by it since the date
thereof related to the Facility owned by it (except for assets that have been
sold or otherwise disposed of in the ordinary course of business), free and
clear of any and all mortgages, liens, encumbrances, charges, claims,
restrictions, pledges, security interests or impositions except Permitted Liens.
7.5 No Litigation. Except as listed on Schedule 7.5 hereto, and the matters
set forth on Schedule 7.3(b) and on Schedule 7.22 hereto, there is no
litigation, arbitration proceeding, governmental investigation, citation, suit,
action proceeding or claim of any kind pending or threatened, against it or the
Facility owned by it that relates to such Facility or any portion thereof or the
ability of such Seller to perform its obligations under this Agreement or under
any other Transaction Documents. The matters described on Schedule 7.5 hereto,
if adversely determined, considered in the aggregate, would not have a material
adverse effect on the business or financial condition of such Seller or the
Facility owned by it or on any material portion of the assets of such Seller or
the Facility owned by it and would not preclude such Seller from performing its
obligations under this Agreement and under any other Transaction Documents.
7.6 Personal Property and Improvements. Except as provided on Schedule 7.6
hereto, the Personal Property and Improvements used in the operation of the
Facility owned by it, as of the Effective Date, are (a) in sufficient operating
condition and in a state of maintenance and repair to support current operating
conditions at the Facility owned by it and (b) the Improvements have no
structural or other defects, including, but not limited to, defects in plumbing,
heating, air conditioning, foundation or electrical wiring and are adequate and
suitable for the purpose for which they are presently being used.
7.7 Real Property and Improvements. Such Seller owns good, indefeasible and
insurable title to the Real Property, free and clear of any and all mortgages,
liens, encumbrances, charges, claims, restrictions, pledges, security interest
or impositions except the Permitted Liens. There are no existing or impending
Improvement liens or special assessments to be made, or which have been made,
against the Real Property or Improvements by any governmental authority. Neither
the Improvements, nor the use thereof, any Personal Property therein, nor the
operation or maintenance thereof, violate any restrictive covenant or encroach
on any property owned by others. No condemnation or similar proceeding is
12
pending, nor, has such Seller or the Facility, received any written notice of
any condemnation or similar proceeding, threatened or contemplated that would
preclude or impair the use of the Real Property, the Improvements or Personal
Property or any portion thereof by Purchaser for the purposes for which it is
currently used.
7.8 Zoning. There exists no judicial, quasi-judicial, administrative or
other proceeding which might adversely affect the validity of the current zoning
of the Real Property and Improvements, nor is there any threatened action or
proceeding which could result in the modification and termination of any such
zoning.
7.9 Leases. Schedule 1.7 hereto contains an accurate and complete list of
each lease of Personal Property to which such Seller or any Facility owned by it
is a party or by which such Seller or the Facility owned by it is bound.
7.10 Liabilities. (a) The Seller's Liabilities include all liabilities of
such Seller in connection with the Facility owned by it for money borrowed or
credit purchases, other than obligations that will be discharged prior to
Closing, (b) such Seller is not in material default under any obligation
included in the Sellers' Liabilities, and no event has occurred or is
contemplated by it, that would constitute a material default, or an event that
with the giving of notice or passage of time or both would constitute a default
thereunder, and (c) such Seller has paid, and through the Effective Date shall
pay, all amounts due and payable to the Effective Date under the terms of each
obligation included in the Sellers' Liabilities.
7.11 Taxes. All tax returns required under applicable Law relating to the
Facilities owned by such Seller to have been filed by or on behalf of it have
been filed. All taxes of such Seller and taxes with respect to the Facility
owned by it for all periods covered by such returns have been paid or adequately
provided for. No unpaid deficiencies for any such taxes have been officially
asserted or assessed against such Seller or the Facility owned by it.
7.12 Contracts. Schedule 1.8 hereto constitutes a true and complete list of
all Contracts to which such Seller or the Facility owned by it is a party or by
which such Seller or the Facility owned by it is bound. With respect to those
Contracts or leases listed on Schedule 1.8 hereto, [THI Lessee Subsidiary] may
continue such Contracts and leases, as provided for in the Master Lease, and
such Seller shall defend, indemnity and hold harmless Purchaser from and against
any and all covenants, duties and obligations under such Contracts and leases,
including, without limitation, any and all costs and expenses arising out of or
in connection with any such covenants, duties and obligations. [THI TO PROVIDE
ADDITIONAL LANGUAGE TO FOLLOW]
7.13 Intentionally Omitted.
13
7.14 Financial Statements of the Facility owned by such Seller. (a) The
Financial Statements of the Facility owned by such Seller, taken as a whole,
fairly presents the financial position and, if applicable, the results of
operations of the Facility owned by such Seller as of the dates thereof and the
periods then ended and were prepared in accordance with generally accepted
accounting principles consistently applied and (b) the Final Financial
Statements when delivered will present fairly the financial position and the
results of operations of the Facility owned by such Seller as of the Effective
Date and the period then ended and will be prepared in accordance with generally
accepted accounting principles consistently applied.
7.15 No Adverse Change. Except as set forth in Schedule 7.15 hereto, since
January 1, 1998 there has not been: (a) any material adverse change in the
financial condition or business of the Facility owned by such Seller, or any
material adverse change in the net operating income of the Facility owned by
such Seller, (b) any material loss, damage, condemnation or destruction to the
Facility owned by such Seller, (c) any labor dispute or disturbance, litigation
or any event or condition that could materially adversely affect the operation
of the Facility owned by such Seller, (d) any borrowings by such Seller in
connection with the Facility owned by such Seller, or (e) any sale, transfer or
other disposition of assets of the Facility owned by such Seller other than in
the ordinary course of business.
7.16 Employment Agreements and Benefits. (a) Schedule 7.16 hereto is a true
and complete list of all agreements or contracts relating to the compensation
and other benefits of present and former employees, salesmen, individual
consultants, individuals and other individual agents of such Seller relating to
the Facility owned by such Seller, including all collective bargaining
agreements and all pension, retirement, bonus, stock option, profit sharing,
health, disability, life insurance, hospitalization, education or other similar
plans or arrangements (whether or not subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), true and complete copies of which,
including any trust, insurance or other funding agreements (or true and complete
descriptions of which, in the case of oral agreements) have been delivered to
Purchaser, (b) such Seller has not contributed to or maintained any
"multiemployer plan", as defined in Section 3(37) of ERISA, in respect of
present or former employees at the Facility owned by such Seller, and (c) except
as set forth in Schedule 7.16 hereto, no such agreements require Purchaser to
assume or make payments with respect to any employment, compensation, fringe
benefit, pension, profit sharing or deferred compensation plan in respect of any
employee or former employee or the dependent or beneficiary of any employee or
former employee of such Seller although such Seller will have such liabilities
in accordance with the terms of such arrangements to the extent such liabilities
exist. [THI TO PROVIDE ADDITIONAL LANGUAGE TO FOLLOW]
7.17 Insurance. (a) Schedule 7.17 hereto (i) contains an accurate and
complete list of all material policies of property, fire and casualty, product
liability, workers' compensation and other forms of insurance owned or held by
such Seller in connection with the Facility owned by such Seller and (ii)
includes for each such policy its type, term, limits and
14
retentions, deductibles, name of insurer, and (b) all such policies are in full
force and effect with all premiums billed or otherwise due having been paid in
full.
7.18 Compliance with the Law.
(a) Except as set forth on Schedule 7.3(b) and Schedule 7.22 hereto,
the use, maintenance and operation of the Facility owned by such Seller does not
violate or conflict in any material respect with any Law.
(b) The Permits constitute all permits, consents, waivers, exemptions,
orders, certificates of need, licenses and governmental agency authorizations,
registrations and approvals necessary for the development, construction,
ownership, licensure, use, maintenance and operation of the Facility owned by
such Seller in compliance with all applicable Laws (as such Facility is being
operated on the Effective Date). Except as shown on Schedule 1.31 hereto, all
such Permits are in full force and effect, have been duly obtained, made, given
or taken and are being complied with in all material respects, subject to
approvals required in connection with the transactions contemplated by this
Agreement and the other Transaction Documents.
(c) No governmental authority having jurisdiction over the Facility
owned by such Seller has issued any citations with respect to any deficiencies
or other matters that fail to conform to any applicable statute, regulation,
ordinance or bylaw and that have not been corrected as of the date hereof or
that shall not have been corrected on or prior to the Effective Date, except to
the extent that either (i) a waiver has been issued by the appropriate
authority, in which case a copy of such waiver is included on Schedule 7.18(c)
hereto, or (ii) the deficiency or non-conformity will not have a material and
adverse effect on the financial condition or results of the operations of the
Facility owned by such Seller.
(d) Such Seller has not received written or oral notice from any
licensing or certifying agency supervising or having authority over the Facility
owned by such Seller, requiring the Facility to be reworked or redesigned or
additional furniture, fixtures, equipment or inventory to be provided at the
Facility owned by such Seller so as to conform to or comply with any existing
and applicable Law, code or standard, except where the requirement either (i)
has been fully satisfied prior to the Effective Date, (ii) will, as of the
Effective Date, be in the process of being satisfied in the ordinary course of
such Seller's business pursuant to the terms of a plan of correction or other
documentation submitted to and approved by the appropriate authority or (iii)
will, as of the Effective Date, be the subject of a valid written waiver issued
by the applicable licensing or certifying agency.
(e) The Facility owned by such Seller participating in the Medicare or
Medicaid Programs is in compliance with all Conditions and Standards of
Participation in those Programs, except as set forth on Schedule 7.18(e) hereto.
15
7.19 Transactions with Affiliates. Except as set forth on Schedule 7.19(a)
hereto, as of the Effective Date, the Facility owned by such Seller shall not be
bound by and will not owe any amount or have any contractual obligation or
commitment to any Affiliate (other than compensation for current services not
yet due and payable and reimbursement of expenses arising in the ordinary course
of business). Schedule 7.19(b) hereto describes in reasonable detail all
Affiliate relationships in effect during the three (3) years prior to the date
of this Agreement. "Affiliate" shall mean any employee of such Seller, any
person, firm or corporation that directly or indirectly controls, is controlled
by or is under common control with such Seller.
7.20 Obligations. Except as set forth on Schedule 7.20 hereto, none of the
patients at the Facility owned by such Seller have been given any concession,
rebate or consideration for the rental of any room, which concession, rebate or
other consideration shall not have been paid or delivered prior to the Effective
Date.
7.21 No Broker. Except as set forth on Schedule 7.21 hereto, such Seller
has not incurred any liability for broker's or finder's fees or commissions to
any broker, financial advisor or other intermediary in connection with the
transactions contemplated by this Agreement. Such Seller agrees to pay and to
hold Purchaser harmless from and against any amounts due and payable to any such
adviser not scheduled with respect to the transactions contemplated herein.
7.22 Environmental Compliance. "Hazardous Materials", as used herein, shall
mean, collectively, (a) any petroleum or petroleum product, explosive,
radioactive material, radon gas, asbestos, urea formaldehyde foam insulation,
and PCBs and (b) materials which are now or hereafter become defined as
"hazardous substances", "hazardous wastes", "extremely hazardous substances",
"hazardous materials", "restricted hazardous wastes", "toxic chemicals",
"pollutants", "toxic pollutants", "hazardous air pollutants", "air
contaminants", "hazardous chemicals", or words of similar import under any
applicable Environmental Laws. "Reasonable Inquiry", as used herein, shall mean
Knowledge of environmental issues and the delivery to Purchaser of (i) the Phase
I environmental site assessment reports and Phase I update reports listed on
Schedule 7.22 hereto, (ii) the asbestos survey reports listed on Schedule 7.22
hereto, and (iii) the Phase II environmental reports listed on Schedule 7.22
hereto. Except as set forth on Schedule 7.22 hereto, in connection with the
Facilities, to the best of its Knowledge, after Reasonable Inquiry, such Seller
has complied and is in compliance with all applicable Environmental Laws, and
such Seller has no Knowledge, and has not received notice, (i) that the Facility
owned by it or any property contiguous to the Facility owned by it is in
violation of any Environmental Law and (ii) of any pending or threatened claims
involving the Facility owned by it. Except as set forth on Schedule 7.5 or
Schedule 7.22 hereto, neither such Seller nor any of the Facilities is the
subject of any administrative or judicial action or proceeding pursuant to any
Environmental Laws at the Effective Date in connection with the Facility owned
by it. Promptly upon learning thereof, at or following the
16
Effective Date, such Seller shall provide written notice to Purchaser of any
written notification of (i) the assertion of any claim or any threatened claim
relating to the Facility owned by it under any Environmental Law or (ii) the
assertion of any claim of non-compliance with or violation of any Environmental
Law. Except as set forth on Schedule 7.22 hereto, to the best of such Seller's
Knowledge, after Reasonable Inquiry, no Hazardous Materials have at any time
been generated, used, treated or stored at; transported to or from; or disposed
of, released, emitted, discharged or deposited at or in connection with, the
Facility owned by it in any way contrary to that which is allowed or permitted
under any Environmental Laws.
7.23 No Attachments. There are no attachments, executions, assignments for
the benefit of creditors, receiverships, conservatorship or voluntary or
involuntary proceedings in bankruptcy or pursuant to any debtor relief laws
contemplated being filed by such Seller or pending against such Seller or the
Real Property or Improvements owned by it.
7.24 No Options. As of the Effective Date, there are no options, contracts
or other obligations outstanding for the sale, exchange or transfer of any of
the Real Property, Personal Property or Improvements owned by it or any portion
thereof or business operated therein.
7.25 Seller Licenses. Such Seller has all Seller Licenses applicable to the
Facility owned by it. Schedule 7.25 hereto contains true and correct copies of
the licenses issued most recently by the applicable health care authorities with
respect to the operation of the Facility owned by it. such Seller has not
received written or verbal notice (a) that any action or proceeding has been
initiated or is proposed to be initiated by the appropriate state or federal
agency having jurisdiction thereof, to revoke, withdraw or suspend any of the
Seller Licenses applicable to the Facility owned by it in either the Medicare or
Medicaid Programs or (b) of any judicial or administrative agency judgment or
decision not to renew any of the Seller Licenses applicable to the Facility
owned by it or (c) of any licensure or certification action of any other type
applicable to the Facility owned by it.
7.26 Disclosure. Such Seller has provided to Purchaser access to all
relevant documents, materials and information in its possession or control
relative to the Facility owned by it. Such Seller has not withheld any documents
or information that are material to the condition, assets, liabilities,
businesses, operations and prospects of such Seller or the Facility owned by it.
Such Seller has disclosed or provided information to Purchaser with respect to
all facts that are material to the condition, assets, liabilities, businesses,
operations and prospects of such Seller or the Facility owned by it. No
representation or warranty of such Seller contained in this Agreement (which
shall include any Exhibit or Schedule hereto) and no certificate or document
furnished to Purchaser pursuant to the provisions hereof, contains any untrue
statement of a material fact which is untrue in any material respect or omits to
state a material fact necessary in order to make the statements contained
therein not misleading.
17
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF XXXXXX
Xxxxxx represents and warrants to Purchaser that:
8.1 Status of Xxxxxx. Xxxxxx is a corporation that is duly organized,
validly existing and in good standing under the laws of the State of [Insert].
8.2 Validity of Contracts. This Agreement is, and all of the Transaction
Documents to be executed by Xxxxxx pursuant hereto will be, the valid
obligations of Xxxxxx, enforceable in accordance with their respective terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
The execution of this Agreement and the applicable Transaction Documents have
been approved by all required corporate action on the part of Xxxxxx and does
not and will not result in a breach of the terms and conditions of, nor
constitute a default under or violation of, the Certificate of Incorporation and
By-Laws of Xxxxxx or any Law, regulation, court order, mortgage, note, bond,
indenture, agreement, license or other instrument or obligation to which Xxxxxx
is now a party or by which any of its assets may be bound or affected.
8.3 Authority. Xxxxxx has full power and authority to execute and deliver
this Agreement and the applicable Transaction Documents to which it is a party.
8.4 No Broker. Except as set forth on Schedule 8.4 hereto, Xxxxxx has
incurred no liability for broker's or finder's fees or commissions to any broker
or other intermediary in connection with the transactions contemplated by this
Agreement. Xxxxxx agrees to pay and to hold Purchaser harmless from and against
any amounts due and payable to any such adviser not scheduled with respect to
the transactions contemplated herein.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF THI
THI represents and warrants to Purchaser that:
9.1 Status of THI. THI is a corporation that is duly organized, validly
existing and in good standing under the laws of the State of Delaware.
9.2 Validity of Contracts. This Agreement is, and all of the Transaction
Documents to be executed by THI pursuant hereto will be, the valid obligations
of THI, enforceable in accordance with their respective terms, except as the
enforceability thereof may be limited by
18
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). The execution of this Agreement and the
applicable Transaction Documents have been approved by all required corporate
action on the part of THI and does not and will not result in a breach of the
terms and conditions of, nor constitute a default under or violation of, the
Certificate of Incorporation and By-Laws of THI or any Law, regulation, court
order, mortgage, note, bond, indenture, agreement, license or other instrument
or obligation to which THI is now a party or by which any of its assets may be
bound or affected.
9.3 Authority. THI has full power and authority to execute and deliver this
Agreement and the applicable Transaction Documents to which it is a party.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to each of the other parties
hereto that:
10.1 Organization. Purchaser is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has full power and authority to enter into and perform its obligations under
this Agreement, the other Transaction Documents and any other documents and
instruments required hereby to be delivered to which it is or is to become a
party.
10.2 Authorization; Enforceability. The execution, delivery and performance
by Purchaser of this Agreement, the other Transaction Documents and all of the
documents and instruments contemplated hereby are within the power of Purchaser
and have been duly authorized by all necessary action of Purchaser. This
Agreement is, the other Transaction Documents are, and the other documents and
instruments required hereby to be delivered by Purchaser will be, when executed
and delivered, the valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms.
10.3 No Violation or Conflict. The execution, delivery and performance of
this Agreement, the other Transaction Documents and all of the documents and
instruments contemplated hereby to be executed and delivered by Purchaser does
not and will not conflict with or violate the Limited Partnership Agreement of
Purchaser or any material Law, judgment, order or decree binding on Purchaser.
10.4 No Broker. Except as set forth on Schedule 10.4 hereto, Purchaser has
incurred no liability for broker's or finder's fees or commissions to any broker
or other intermediary in connection with the transactions contemplated by this
Agreement. Purchaser
19
agrees to pay and to hold such Seller and THI harmless from and against any
amounts due and payable to any such adviser not scheduled with respect to the
transactions contemplated herein.
ARTICLE XI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
Each and every obligation of Purchaser to be performed on the Closing Date
shall be subject to the satisfaction as of the Closing Date of the following
express conditions precedent (it being the understanding of the parties that any
of such conditions may be waived by Purchaser):
11.1 Compliance with this Agreement. Sellers shall have performed and
complied in all material respects with all of their obligations under this
Agreement that are to be performed or complied with by it prior to or on the
Closing Date, including, but not limited to, the payment of all costs, fees and
expenses that Sellers or THI are required to pay pursuant to this Agreement.
11.2 Proceedings and Instruments Satisfactory. All proceedings, corporate
or other, to be taken by Sellers, Xxxxxx and THI in connection with the
transactions contemplated by this Agreement, the other Transaction Documents and
any other documents incident thereto, shall be reasonably satisfactory in form
and substance to Purchaser and Purchaser's counsel, and Sellers, Xxxxxx and THI
shall have made available to Purchaser and Purchaser's counsel (or Purchaser
shall have obtained itself prior to the Closing Date or waived the necessity for
receipt thereof prior to the Closing Date) for examination the originals or true
and correct copies of all documents that Purchaser and Purchaser's counsel may
reasonably request in connection with the transactions contemplated by this
Agreement and the other Transaction Documents, including, but not limited to:
(a) an MAI Appraisal for each of the Facilities;
(b) a Title Commitment for each of the Facilities;
(c) acceptable engineering, architectural and Phase I environmental site
assessments for each of the Facilities;
(d) a Survey for each of the Facilities;
(e) a UCC Search Report for each of the Facilities;
(f) the Seller Licenses for each of the Facilities;
20
(g) valid permanent Certificates of Occupancy, if required under the Law,
for each of the Facilities, as well as any other licenses or Permits
required to be obtained from applicable governmental authorities with
respect to the use and occupancy of each of the Facilities;
(h) for each Seller and Xxxxxx, Articles of Incorporation, Certificates of
Good Standing and, for each Seller, Certificates of Authority to
Transact Business in the state in which each Facility owned by such
Seller is located;
(i) for THI, Articles of Incorporation, Certificates of Good Standing and
Certificates of Authority to Transact Business;
(j) certified resolutions of the Board of Directors of each Seller and
Xxxxxx and certified resolutions of the Board of Directors of THI, in
each case authorizing and approving the execution, delivery and
performance of each Seller's, Xxxxxx'x and THI's obligations under
this Agreement and the other Transaction Documents; and
(k) the opinions of THI's, Xxxxxx'x and each Seller's counsel, in a form
reasonably acceptable to Purchaser.
11.3 No Litigation. Except as provided on Schedule 11.3 hereto, no
investigation, suit, action or other proceeding shall be instituted, threatened
or pending before any court or governmental agency or body that seeks restraint,
prohibition, damages or other relief in connection with this Agreement, the
other Transaction Documents or the consummation of the transactions contemplated
by this Agreement and the other Transaction Documents.
11.4 Representations and Warranties. The representations and warranties
made by each Seller, Xxxxxx and THI in this Agreement and the other Transaction
Documents shall be true and correct in all material respects at and as of the
Closing Date.
11.5 Deliveries at the Closing. Seller and THI shall have, or shall cause
to have, delivered to Purchaser the following documents, each properly executed
and dated as of the Closing Date:
(a) this Facilities Purchase Agreement;
(b) the Deeds;
(c) the Bills of Sale;
(d) the Master Lease;
21
(e) a memorandum of lease in recordable form with respect to the Master
Lease;
(f) the Consent and Subordination Agreement;
(g) the Escrow Agreement;
(h) the Facility Management Agreement;
(i) the Guaranty;
(j) the Security Agreement;
(k) the Non-Competition Agreement; and
(l) any such other documents, instruments or certificates as Purchaser and
Purchaser's counsel shall reasonably request in connection with the
transactions contemplated by this Agreement and the other Transaction
Documents.
11.6 Regulatory Approvals. All required licenses, authorizations,
registrations, Permits and approvals from federal and state regulatory agencies
with jurisdiction over each of the Facilities to permit the transactions
contemplated by this Agreement and the other Transaction Documents shall have
been obtained or completed to the reasonable satisfaction of Purchaser and any
and all conditions to the effectiveness thereof shall have been satisfied.
11.7 Default. Each Seller, Xxxxxx and THI shall not be in default, where
said default cannot be cured by the Closing Date, under any mortgage, contract,
lease or other agreement to which each Seller, Xxxxxx and THI is a party or by
each which each Seller, Xxxxxx and THI is bound and that materially affects of
relates to the Real Property, the Personal Property or any of the Facilities.
11.8 Approvals. The Board of Directors of Monarch and the requisite lenders
under Monarch's senior credit facility shall have approved the transactions
contemplated by this Agreement and the Transaction Documents.
22
ARTICLE XII
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF SELLERS
Each and every obligation of Sellers to be performed on the Closing Date
shall be subject to the satisfaction as of the Closing Date of the following
express conditions precedent (it being the understanding of the parties that any
of such conditions may be waived by Sellers):
12.1 Compliance with this Agreement. Purchaser shall have performed and
complied in all material respects with all of its obligations under this
Agreement and the other Transaction Documents that are to be performed or
complied with by it prior to or on the Closing Date, including, but not limited
to, the payment of the Purchase Price by Purchaser.
12.2 Proceedings and Instruments Satisfactory. All proceedings, corporate
or other, to be taken by Purchaser in connection with the transactions
contemplated by this Agreement, the other Transaction Documents and any other
documents incident thereto, shall be reasonably satisfactory in form and
substance to Sellers and Sellers' counsel, and Purchaser shall have made
available to Sellers and Sellers' counsel (or Sellers shall have obtained
themselves prior to the Closing Date or waived the necessity for receipt thereof
prior to the Closing Date) for examination the originals or true and correct
copies of all documents that Sellers and Sellers' counsel may reasonably request
in connection with the transactions contemplated by this Agreement and the other
Transaction Documents.
12.3 No Litigation. Except as provided on Schedule 12.3 hereto, no
investigation, suit, action or other proceeding shall be threatened or pending
before any court or governmental agency that seeks restraint, prohibition,
damages or other relief in connection with this Agreement, the other Transaction
Documents or the consummation of the transactions contemplated by this Agreement
and the other Transaction Documents.
12.4 Representations and Warranties. The representations and warranties
made by Purchaser in this Agreement and the other Transaction Documents shall be
true and correct in all material respects at and as of the Closing Date.
12.5 Deliveries at the Closing. Purchaser shall have, or shall cause to
have, delivered to Sellers, Xxxxxx and THI the following documents, each
properly executed and dated as of the Closing Date:
(a) the agreements identified in subparagraphs (a) through (k) of Section
11.5 hereof;
23
(b) Certificate of Formation, Certificate of Good Standing and Certificate
of Authority to Transact Business of Purchaser;
(c) certified resolutions of Monarch and Purchaser, authorizing and
approving the execution, delivery and performance of Purchaser's
obligations under this Agreement and the other Transaction Documents;
and
(d) any such other documents, instruments or certificates as Sellers and
Sellers' counsel shall reasonably request in connection with the
transactions contemplated by this Agreement and the other Transaction
Documents.
12.6 Restraints. No action or proceeding before a court or any other
governmental agency or body of or in the United States shall have been
instituted or threatened to restrain or prohibit the consummation of the
transactions contemplated by this Agreement or the other Transaction Documents.
12.7 Regulatory Approvals. All required authorizations, registrations,
Permits and approvals from federal and state regulatory agencies with
jurisdiction over each of the Facilities to permit the transactions contemplated
by this Agreement and the other Transaction Documents shall have been obtained
or completed to the reasonable satisfaction of Sellers.
12.8 Approvals. The Board of Directors of Sellers, Xxxxxx and THI shall
have approved the transactions contemplated by this Agreement and the
Transaction Documents.
ARTICLE XIII
ADDITIONAL COVENANTS AND INDEMNIFICATIONS
13.1 Transfer Taxes and Fees. [Sellers or THI] shall pay all fees, transfer
taxes or assessments, if any, charged to grantors, lessors, sub-lessors,
transferors or assignors under applicable Law in connection with the
transactions contemplated by this Agreement and the other Transaction Documents.
13.2 Cooperation. The parties hereto shall cooperate in all respects in
connection with the giving of any notices to any governmental authority or
self-regulatory organization or securing the permission, approval,
determination, consent or waiver of any governmental authority or other party
required in connection with the consummation of the transactions contemplated by
this Agreement and the other Transaction Documents.
13.3 Additional Instruments. At any time and from time to time after the
Closing, at Purchaser's reasonable request and without further consideration,
Sellers shall execute and deliver such other instruments of sale, transfer,
conveyance, assignment and confirmation and
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take such other action as Purchaser may reasonably deem necessary to consummate
the transactions contemplated by this Agreement and the other Transaction
Documents. At any time and from time to time after the Closing, at the
reasonable request of Sellers and without further consideration, Purchaser shall
execute and deliver such other instruments and take such other action as Sellers
may reasonably deem necessary to consummate the transactions contemplated by
this Agreement and the other Transaction Documents.
13.4 Publicity. All general notices, releases, statements and
communications to employees and patients of Purchaser, Sellers and each of the
Facilities relating to the transactions contemplated by this Agreement shall be
made only at such times and in such manner as may be mutually agreed upon by
Purchaser, Sellers, Xxxxxx and THI. All general notices, releases, statements
and communications to the general public and the press relating to the
transactions contemplated by this Agreement shall be made only with such content
and at such times and in such manner as may be mutually agreed upon by
Purchaser, Sellers, Xxxxxx and THI; provided, however, that each party shall be
entitled to make a public announcement of the transaction if, in the opinion of
its counsel, such announcement is required to comply with the Law.
13.5 Confidentiality. Purchaser shall not disclose to any person or company
or use for its own benefit any material information related to the ownership or
operation of the Facilities by Sellers, including customer or patient-related
information, without Sellers' express prior written permission except for
disclosure by Purchaser to its counsel, its lenders and their counsel and
appropriate regulatory agencies, except any such information that is now or
hereafter becomes available to the public without breach of any confidentiality
agreement.
13.6 Indemnifications.
(a) Sellers, Xxxxxx and THI, jointly and severally, shall indemnify
and hold harmless Purchaser and its partners, officers, directors, shareholders,
employees, agents, and assigns (collectively, the "Purchaser Indemnified
Parties"), from any and all liabilities, obligations, losses, demands,
judgments, actions, suits, causes of action, claims, proceedings,
investigations, citations, matters, damages, penalties, sanctions, costs,
expenses, and disbursements (including, without limitation reasonable attorneys'
and consultants' fees and expenses), whether or not subject to litigation
(hereinafter collectively referred to as the "Claims") of any kind or character
imposed upon, arising out of, in connection with, incurred or in any way
attributed or relating to the following:
(i) the ownership, use, operation, possession, or management of each
of the Facilities prior to the Effective Date;
(ii) the breach or failure of any representation, warranty or covenant
made by Sellers, Xxxxxx or THI that is contained in this Agreement or
25
contained in any other certificates, agreements or Transaction Documents to
which Sellers, Xxxxxx or THI is a party;
(iii) any and all Claims relating to any current or former employee,
consultant or independent contractor of the Sellers or any of the
Facilities, including, but not limited to, (A) the termination or discharge
of any current or former employee, consultant, or independent contractor of
Sellers or any of the Facilities, (B) Claims under federal, state, or local
laws, rules or regulations, related to wages, hours, fair employment
practices, unfair labor practices, or other terms and conditions of
employment and claims arising under the Worker Adjustment and Retraining
Notification Act or any analogous state statute, (C) matters arising from
any severance policy, claim, agreement or contract or (D) any and all
Claims with respect to the matters provided for in Section 7.16 herein;
(iv) any and all Claims that relate to information provided by or on
behalf of any of the Sellers, Xxxxxx or THI concerning the Facilities,
Sellers' Assets, Sellers, Xxxxxx or THI and their respective affiliates, to
third parties which was used or relied upon to effect the transactions
contemplated in this Agreement and by the other Transaction Documents;
(v) other than for the liens, claims or encumbrances necessary to
effect the transactions contemplated in this Agreement and the other
Transaction Documents, any mortgage, pledge, lien, or encumbrance made on
any of the Sellers' Assets, the Facilities or assets relating to any of the
Facilities or the Sellers' Assets, and any claims asserted therefrom, other
than and except for the Permitted Liens;
(vi) any and all Claims with respect to any qualified or non-qualified
retirement or benefit plans or arrangements involving any current or former
employee, consultant or independent contractor of the Sellers or any of the
Facilities;
(vii) any and all Claims with respect to admission agreements, patient
contracts, or agreements with patients or others at any of the Facilities;
(viii) any deficiencies or inaccuracies relating to patient funds and
accounts associated therewith at any of the Facilities;
(ix) any Claims arising out of Sellers' failure to have kept or
maintained patient records and other related records at any of the
Facilities in accordance with applicable Law;
26
(x) any sums due by any of the Sellers for Medicare and Medicaid
adjustments arising from the operation of any of the Facilities conveyed
pursuant to this Agreement;
(xi) any action or proceeding by an appropriate state or federal
agency having jurisdiction thereof, to revoke, withdraw or suspend any of
the Seller Licenses or Permits of a Seller applicable to the Facility owned
by such Seller or to terminate the participation of the Facility owned by
such Seller in either the Medicare or Medicaid Programs, as a result of or
caused by the transactions contemplated by this Agreement and the other
Transaction Documents, including, but not limited to, the execution and
delivery of the Master Lease; or
(xii) the violation of any Environmental Law or the existence,
presence or Release of any Hazardous Material (collectively, "Environmental
Liability") whether or not the Environmental Liability is based on an event
or condition at or relating to any of the Facilities that commenced or
existed prior to or after the Effective Date.
Sellers, Xxxxxx and THI further covenant and agree to defend the
Purchaser Indemnified Parties on account of said Claims and to pay any judgment
against the Purchaser Indemnified Parties, or any other amount as indicated in
this Section 13.6(a), along with all reasonable costs and expenses relative to
any such Claims, including reasonable and documented attorneys' fees and
expenses; provided, however, that the Purchaser Indemnified Parties shall,
nevertheless, have the right, if they so elect, to participate (with counsel of
their choosing, which counsel must be approved by Sellers, Xxxxxx and THI, which
approval may not be unreasonably withheld) in the defense of any such Claim in
which they may be a party without relieving Sellers, Xxxxxx and THI, of the
obligation to defend the same. To the extent applicable, the Purchaser
Indemnified Parties covenant not to settle or compromise any Claim under this
section without the written consent of Sellers, Xxxxxx and THI, which consent
may not be unreasonably withheld or delayed under the circumstances. Failure to
comply with the preceding covenant shall be deemed a complete waiver of any
rights that the Purchaser Indemnified Parties have or may have under this
Section 13.6(a).
(b) Purchaser shall indemnify and hold harmless Sellers, Xxxxxx and
THI, and their officers, directors, shareholders, employees, agents, and assigns
(the "Seller Indemnified Parties") from any and all liabilities, obligations,
losses, demands, judgments, actions, suits, causes of action, claims,
proceedings, investigations, citations, matters, damages, penalties, sanctions,
costs, expenses, and disbursements (including, without limitation reasonable
attorneys' and consultants' fees and expenses), whether or not subject to
litigation, (hereinafter collectively referred to as the "Claims") of any kind
or character imposed upon, arising out of, in connection with, incurred or in
any way attributed or relating
27
to breach or failure of any representation, warranty or covenant made by
Purchaser that is contained in this Agreement or contained in any other
certificates, agreements or Transaction Documents to which Purchaser is a party.
Purchaser further covenants and agrees to defend the Seller
Indemnified Parties on account of said Claims and to pay any judgment against
the Seller Indemnified Parties, or any other amount as indicated in this Section
13.6(b), along with all reasonable costs and expenses relative to any such
Claims, including attorneys' fees and expenses; provided, however, that the
Seller Indemnified Parties shall, nevertheless, have the right, if they so
elect, to participate (with counsel of their choosing, which counsel must be
approved by Purchaser, which approval may not be unreasonably withheld) in the
defense of any such Claim in which they may be a party without relieving
Purchaser of the obligation to defend the same. To the extent applicable, the
Seller Indemnified Parties covenant not to settle or compromise any Claim under
this section without the written consent of Purchaser, which consent may not be
unreasonably withheld or delayed under the circumstances. Failure to comply with
the preceding covenant shall be deemed a complete waiver of any rights that the
Seller Indemnified Parties have or may have under this Section 13.6(b).
(c) The indemnities set forth in this Section 13.6 shall remain
operative and in full force and shall survive the execution and performance
hereof and the execution and delivery of this Agreement and the other
Transaction Documents.
13.7 Liability for Representations and Warranties Before the Closing. Until
the execution and delivery of the Closing documents by the parties on the
Closing Date, Purchaser's, Xxxxxx'x, Sellers' and THI's sole remedy for any
breach of Sellers', Xxxxxx'x, THI's or Purchaser's representations and
warranties hereunder shall be to terminate this Agreement, whereupon the parties
hereto shall have no further obligations to each other in respect of this
Agreement.
ARTICLE XIV
MISCELLANEOUS
14.1 Entire Agreement; Amendment. This Agreement and the Transaction
Documents constitute the entire agreement among the parties pertaining to the
subject matter hereof, and supersede all prior and contemporaneous agreements,
understandings, negotiations and discussions of the parties, whether oral or
written, and there are no warranties, representations or other agreements
between the parties in connection with the subject matter hereof, except as
specifically set forth herein or therein. No amendment, supplement,
modification, waiver or termination of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision of this
28
Agreement, whether or not similar, nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
14.2 Governing Law. THIS AGREEMENT AND THE TRANSACTION DOCUMENTS SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ITS CONFLICTS OF LAW PROVISIONS. SELLERS, XXXXXX AND THI CONSENT TO IN
PERSONAM JURISDICTION BEFORE THE STATE AND FEDERAL COURTS OF THE STATE OF NEW
YORK, AND AGREE THAT ALL DISPUTES CONCERNING THIS AGREEMENT MAY BE HEARD, AT
PURCHASER'S OPTION, IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW
YORK. SELLERS, XXXXXX AND THI AGREE THAT SERVICE OF PROCESS MAY BE EFFECTED UPON
SELLERS, XXXXXX AND THI UNDER ANY METHOD PERMISSIBLE UNDER THE LAWS OF THE STATE
OF NEW YORK AND IRREVOCABLY WAIVE ANY OBJECTION TO VENUE IN THE STATE AND
FEDERAL COURTS OF THE STATE OF NEW YORK.
14.3 Assignment. This Agreement and each party's respective rights
hereunder may not be assigned at any time without the prior written consent of
the other parties hereto.
14.4 Notices. All communications, notices and disclosures required or
permitted by this Agreement shall be in writing and shall be deemed to have been
given at the earlier of the date when actually delivered to an officer of the
other party or when deposited in the United States mail, certified or registered
mail, postage prepaid, return receipt requested, by personal delivery or by
overnight courier service with signed receipt, and addressed as follows, unless
and until either of such parties notifies the other in accordance with this
Section of a change of address:
To Sellers and Xxxxxx: Xxxxxx Management Corporation
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
To THI: Trans Healthcare, Inc.
0000 Xxxxxxxx Xxxx - Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
29
Copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
To Purchaser: Monarch Properties, LP
0000 Xxxxxxx Xxx Xxxxxxxxx - Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Copy to: LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Xx., Esq.
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
14.5 Counterparts; Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same Agreement. The Table of Contents
and Article and Section headings in this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof or be used as
interpreting the meaning of this Agreement.
14.6 Interpretation. To the extent any conflict exists between the terms
and conditions of this Agreement and the terms and conditions of any other
Transaction Documents, the terms and conditions of such other Transaction
Documents shall govern and control.
14.7 Severability. If any provision, clause or part of this Agreement, or
the application thereof under certain circumstances, is held invalid, the
remainder of this Agreement, or the application of such provision, clause or
part under other circumstances, shall not be affected thereby.
14.8 No Reliance. No third party, other than a successor by operation of
law or an assignee permitted by this Agreement, is entitled to rely on any of
the representations, warranties and agreements contained in this Agreement and
no party to this Agreement assumes any liability to any third party, other than
an assignee permitted by this Agreement,
30
because of any reliance on the representations, warranties and agreements
contained in this Agreement.
14.9 Binding. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
14.10 Survival. All covenants and agreements of the parties to be performed
in this Agreement and all representations, warranties, covenants and indemnities
of the parties in this Agreement shall survive the Closing Date.
14.11 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Facilities as set forth on Schedule 14.11 hereto. The parties agree
that the Personal Property has nominal value and therefore no amount of the
Purchase Price is being allocated to it. Each party agrees to timely file tax
Form 8594 in accordance with the allocations to which the parties have so
agreed.
14.12 Dispute Attorneys' Fees and Expenses. In the event of a dispute
between the parties to this Agreement with respect to the interpretation of
enforcement of the terms hereof, the prevailing party in any action resulting
therefrom shall be entitled to collect from the other its reasonable and
documented attorneys' fees and expenses, including its attorneys' fees and
expenses on appeal.
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the parties have caused this Facilities Purchase
Agreement to be duly executed and delivered as a sealed instrument as of the day
and year first above written.
PURCHASER:
MONARCH PROPERTIES, LP
By: MP Operating Inc.,
its General Partner
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
---------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
XXXXXX:
XXXXXX MANAGEMENT CORPORATION
By:
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: President
--------------------------------------
SELLERS:
XXXXXX, XXXXXX & XXXXXX
By:
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: Partner
--------------------------------------
32
LAKELAND MANAGEMENT, L.L.C.
By:
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: Member - Manager
--------------------------------------
PIONEER NURSING AND REHAB CENTER, INC.
By:
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: President
--------------------------------------
THI:
TRANS HEALTHCARE, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title: President
--------------------------------------
33
