EXHIBIT 2.4
FACILITIES PURCHASE AGREEMENT
AMONG
MONARCH PROPERTIES, LP,
INTEGRATED HEALTH SERVICES, INC.
AND
THE ENTITIES LISTED ON ATTACHED EXHIBIT A
DATED AS OF DECEMBER 31, 1998
TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS......................................................2
1.1 Agreement........................................................2
1.2 Bills of Sale....................................................2
1.3 Closing..........................................................2
1.4 Closing Date.....................................................2
1.5 Consent and Subordination Agreement. ...........................2
1.6 Contracts........................................................2
1.7 Deeds............................................................3
1.8 Deferred Maintenance Adjustment..................................3
1.9 Effective Date...................................................3
1.10 Environmental Laws...............................................3
1.11 Environmental Remediation........................................3
1.12 Escrow Agent.....................................................3
1.13 Escrow Agreement.................................................3
1.14 Facilities.......................................................4
1.15 Facility Franchise Agreement.....................................4
1.16 Facility Management Agreement....................................4
1.17 Facility Sublease................................................4
1.18 Final Financial Statements; Final Balance Sheet..................4
1.19 Financial Statements of the Facilities...........................4
1.20 Franchisor.......................................................4
1.21 Guaranty.........................................................4
1.22 IHS..............................................................5
1.23 IHS Indemnity....................................................5
1.24 Improvements.....................................................5
1.25 Intangible Property..............................................5
1.26 Knowledge........................................................5
1.27 Law..............................................................5
1.28 Loan Facility....................................................5
1.29 MAI Appraisal....................................................5
1.30 Manager..........................................................5
1.31 Master Franchise Agreement.......................................6
1.32 Master Lease.....................................................6
1.33 Master Management Agreement......................................6
1.34 Monarch..........................................................6
1.35 Permits..........................................................6
1.36 Permitted Liens..................................................6
1.37 Personal Property................................................6
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Section Page
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1.38 Pledge Agreements................................................6
1.39 Purchase Price...................................................7
1.40 Real Property....................................................7
1.41 Release..........................................................7
1.42 Security Agreement...............................................7
1.43 Sellers' Liabilities.............................................7
1.44 Sellers' Assets..................................................7
1.45 Seller Licenses..................................................7
1.46 Survey...........................................................7
1.47 Title Commitment.................................................8
1.48 Title Company....................................................8
1.49 Title Insurance Policy...........................................8
1.50 Transaction Documents............................................8
1.51 UCC Search Report................................................8
ARTICLE II PURCHASE AND SALE................................................8
2.1 Agreement to Sell and Buy........................................8
2.2 No Assumption of Liabilities.....................................9
2.3 "As Is" Purchase.................................................9
ARTICLE III PURCHASE PRICE...................................................9
3.1 Payment of Purchase Price........................................9
3.2 Earn-out Payments .........................................9
ARTICLE IV CLOSING.........................................................14
ARTICLE V TRANSACTION COSTS AND EXPENSES..................................15
5.1 Transfer Taxes; Sales Taxes.....................................15
5.2 MAI Appraisals..................................................15
5.3 Title Insurance.................................................15
5.4 Surveys/UCC Search Reports......................................15
5.5 Environmental Reports/Remediation...............................15
5.6 Attorneys' Fees.................................................15
5.7 Recording Costs.................................................15
5.8 Releases........................................................15
5.9 Deferred Maintenance Adjustment.................................15
5.10 Fee; Commitment Fee.............................................16
5.11 Other Items.....................................................16
TABLE OF CONTENTS
Section Page
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ARTICLE VI POSSESSION......................................................16
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF SELLERS.......................16
7.1 Corporate Organization; Good Standing; Corporate Information....16
7.2 Authorization; Enforceability...................................17
7.3 No Violation or Conflict........................................17
7.4 Assets..........................................................17
7.5 No Litigation...................................................18
7.6 Personal Property and Improvements..............................18
7.7 Real Property and Improvements..................................18
7.8 Zoning..........................................................18
7.9 Leases..........................................................19
7.10 Liabilities.....................................................19
7.11 Taxes...........................................................19
7.12 Contracts.......................................................19
7.13 Contracts and Leases............................................19
7.14 Financial Statements of the Facilities..........................19
7.15 No Adverse Change...............................................19
7.16 Employment Agreements and Benefits..............................20
7.17 Insurance.......................................................20
7.18 Compliance with the Law.........................................20
7.19 Transactions with Affiliates....................................21
7.20 Obligations.....................................................21
7.21 No Broker.......................................................22
7.22 Environmental Compliance........................................22
7.23 No Attachments..................................................22
7.24 No Options......................................................23
7.25 Seller Licenses.................................................23
7.26 Disclosure......................................................23
ARTICLE VIII REPRESENTATIONS AND WARRANTIES OF IHS...........................23
8.1 Status of IHS...................................................23
8.2 Validity or Conflicts...........................................23
8.3 Authority.......................................................24
8.4 Truth of Representations........................................24
ARTICLE IX REPRESENTATIONS AND WARRANTIES OF PURCHASER.....................24
9.1 Organization....................................................24
9.2 Authorization; Enforceability...................................24
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9.3 No Violation or Conflict........................................24
9.4 No Broker.......................................................24
ARTICLE X CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
PURCHASER.......................................................25
10.1 Compliance with this Agreement..................................25
10.2 Proceedings and Instruments Satisfactory........................25
10.3 No Litigation...................................................26
10.4 Representations and Warranties..................................26
10.5 Deliveries at the Closing.......................................26
10.6 Regulatory Approvals............................................27
10.7 Default.........................................................27
10.8 Approvals.......................................................28
10.9 Loan Facility...................................................28
ARTICLE XI CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS..............28
11.1 Compliance with this Agreement..................................28
11.2 Proceedings and Instruments Satisfactory........................28
11.3 No Litigation...................................................28
11.4 Representations and Warranties..................................28
11.5 Deliveries at the Closing.......................................29
11.6 Restraints......................................................29
11.7 Regulatory Approvals............................................29
11.8 Approvals.......................................................29
ARTICLE XII ADDITIONAL COVENANTS AND INDEMNIFICATIONS.......................29
12.1 Transfer Taxes and Fees.........................................29
12.2 Cooperation.....................................................30
12.3 Additional Instruments..........................................30
12.4 Publicity.......................................................30
12.5 Confidentiality.................................................30
ARTICLE XIII MISCELLANEOUS...................................................35
13.1 Entire Agreement; Amendment.....................................35
13.2 Governing Law...................................................35
13.3 Assignment......................................................35
13.4 Notices.........................................................35
13.5 Counterparts; Headings..........................................36
13.6 Interpretation..................................................36
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13.7 Severability....................................................36
13.8 No Reliance.....................................................37
13.9 Binding.........................................................37
13.10 Survival........................................................37
13.11 Allocation of Purchase Price....................................37
13.12 Dispute Attorneys' Fees and Expenses............................37
FACILITIES PURCHASE AGREEMENT
THIS FACILITIES PURCHASE AGREEMENT (this "Agreement"), is made and entered
into as of the 31st day of December, 1998, among Monarch Properties, LP, a
Delaware limited partnership, with principal offices at 0000 Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxx, Xxxxxxx 00000 ("Purchaser"), Integrated Health Services,
Inc., a Delaware corporation, with principal offices at 00000 Xxx Xxx Xxxxxxxxx,
Xxxxxx Xxxxx, Xxxxxxxx 00000 ("IHS") 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 corporations that are each wholly owned by IHS. Sellers also
are the respective 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
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 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.
1.2 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.
1.3 Closing. "Closing" shall mean the closing held 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.
1.4 Closing Date. "Closing Date" shall mean December 31, 1998.
1.5 Consent and Subordination Agreement. "Consent and Subordination
Agreement" shall mean the consent and subordination agreement to be executed
among Manager, Franchisor, Lyric Holdings, the Subsidiaries of Lyric Holdings to
which the Facilities are to be subleased and Purchaser, pursuant to which
certain management and franchise fees payable under the Facility Management
Agreement and Facility Franchise Agreement are subordinated to Purchaser's
rights under the Master Lease upon an Event of Default under the Master Lease.
1.6 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 operation of any of the Facilities (a) to which Sellers
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 1.6 hereto.
1.7 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
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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.
1.8 Deferred Maintenance Adjustment. "Deferred Maintenance Adjustment"
shall mean, with respect to each Facility, the amount set forth opposite such
Facility's name on Schedule 1.8 hereto to cover the potential costs to be
incurred after the Effective Date in making the repairs or modifications
required at such Facility and described on Schedule 1.8 hereto.
1.9 Effective Date. "Effective Date" shall mean January 1, 1999.
1.10 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.
1.11 Environmental Remediation. "Environmental Remediation" shall mean,
with respect to each Facility, the work described opposite such Facility's name
on Schedule 1.8 hereto to be performed after the Closing for the investigation
and/or remediation of the environmental conditions at such Facility described on
Schedule 1.8 hereto.
1.12 Escrow Agent. "Escrow Agent" shall mean Fidelity National Title
Insurance Company of New York.
1.13 Escrow Agreement. "Escrow Agreement" shall mean the escrow agreement
among Sellers, Lyric Holdings, Purchaser and Escrow Agent pursuant to which the
Deferred Maintenance Adjustment is to be held and disbursed.
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1.14 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".
1.15 Facility Franchise Agreement. "Facility Franchise Agreement" shall
mean the facility franchise agreement, in form and substance satisfactory to
Purchaser, to be executed by each Seller and Franchisor, pursuant to which
Franchisor grants to such Seller the right to use Franchisor's names, marks,
systems and proprietary information.
1.16 Facility Management Agreement. "Facility Management Agreement" shall
mean the facility management agreement, in form and substance satisfactory to
Purchaser, to be executed by each Seller and Manager, pursuant to which Manager
agrees to manage the Facility leased by such Seller pursuant to the Facility
Sublease.
1.17 Facility Sublease. "Facility Sublease" shall mean the facility
sublease, in form and substance satisfactory to Purchaser, executed and
delivered by Lyric III and each Seller, concurrently with the Closing, pursuant
to which Lyric III subleases to each Seller, and each Seller subleases from
Lyric III, the respective Facilities.
1.18 Final Financial Statements; Final Balance Sheet. "Final Financial
Statements" shall mean the unaudited Financial Statements of the Facilities as
of December 31, 1998, 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, all of which Seller agrees to deliver to Purchaser on or
before April 15, 1999. "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 September 30, 1998, previously delived to Purchaser.
1.20 Franchisor. "Franchisor" shall mean Integrated Health Services
Franchising Co., Inc., a Delaware corporation, with principal offices at 00000
Xxx Xxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000, which is a Subsidiary of IHS.
1.21 Guaranty. "Guaranty" shall mean the guaranty, in form and substance
satisfactory to Purchaser, executed and delivered by Lyric to Purchaser
concurrently with the execution and delivery of the Master Lease and the
Facility Subleases, pursuant to which Lyric guarantees to Purchaser the payment
and performance by Lyric III and the respective Sellers of their respective
obligations under the Master Lease and the Facility Subleases.
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1.22 IHS. "IHS" shall mean Integrated Health Services, Inc., a Delaware
corporation, with principal offices at 00000 Xxx Xxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxxxx 00000.
1.23 IHS Indemnity. "IHS Indemnity" shall mean the indemnity agreement, in
form and substance satisfactory to Purchaser, to be executed by IHS and
Purchaser, pursuant to which IHS agrees to indemnify Purchaser with respect to
certain environmental matters in respect of the Facilities.
1.24 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.
1.25 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 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 1.25 hereto, but excluding any right to
use the name "Integrated" or the name "Integrated Health Services".
1.26 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 or management level
employee of such party, with respect to a partnership, or (c) actual knowledge
of the person with respect to a natural person.
1.27 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.
1.28 Loan Facility. "Loan Facility" shall mean the loan evidenced by the
Loan Agreement, dated as of December 30, 1998, between Purchaser and GMAC
Commercial Mortgage Corporation.
1.29 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.
1.30 Manager. "Manager" shall mean IHS Facility Management, Inc., a
Delaware corporation, with principal offices at 00000 Xxx Xxx Xxxxxxxxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000, which is a Subsidiary of IHS.
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1.31 Master Franchise Agreement. "Master Franchise Agreement" shall mean
the amended and restated master franchise agreement, in form and substance
satisfactory to Purchaser, to be executed by Franchisor and Lyric, pursuant to
which Franchisor grants to Lyric the right to use Franchisor's names, marks,
systems and proprietary information.
1.32 Master Lease. "Master Lease" shall mean the master lease, in form and
substance satisfactory to Purchaser, executed and delivered by Purchaser and
Lyric III, concurrently with the Closing, pursuant to which Purchaser leases to
Lyric III, and Lyric III leases from Purchaser, the respective Facilities.
1.33 Master Management Agreement. "Master Management Agreement" shall mean
the amended and restated master management agreement, in form and substance
satisfactory to Purchaser, to be executed by Lyric and Manager, pursuant to
which Manager agrees to manage the Facilities.
1.34 Monarch. "Monarch" shall mean Monarch Properties, LLC, a Delaware,
limited liability company, with principal offices at 0000 Xxxxxxx Xxx Xxxxxxxxx,
Xxxxxx, Xxxxxxx 00000.
1.35 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 1.35 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, and
approval by, the health care facilities branch, pursuant to the relevant state
nursing home licensure act, as in effect on the Effective Date.
1.36 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 1.36 hereto.
1.37 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 or leased by Sellers on the
Closing Date.
1.38 Pledge Agreements. "Pledge Agreements" shall mean, collectively, (a)
the pledge agreement, executed and delivered from Lyric Health Care LLC
("Lyric") to Monarch LP, pursuant to which Lyric pledged to Purchaser the stock
of Lyric Health Care Holdings III, Inc. ("Lyric III") and (b) the pledge
agreement, executed and delivered from Lyric III to Monarch LP, pursuant to
which Lyric III pledged to Monarch LP the stock or partnership interests of
Sellers.
1.39 Purchase Price. "Purchase Price" shall mean the sum of $184,300,000.
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1.40 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.
1.41 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.
1.42 Security Agreement. "Security Agreement" shall mean the security
agreement, in form and substance satisfactory to Monarch LP, pursuant to which
Sellers and Lyric III grant to Purchaser a security interest in the Personal
Property and Intangible Property in order to secure the obligations of Lyric III
under the Master Lease and each Seller under the Facility Subleases.
1.43 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 1.43 hereto or (b) except for
liabilities arising from operation of the Facilities on or prior to the Closing
Date, arising under the Contracts.
1.44 Sellers' Assets. "Sellers' Assets" shall mean, collectively, the
Facilities and the Intangible Property.
1.45 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.
1.46 Survey. "Survey" shall mean, with respect to a Facility, a survey that
is (a) certified to Purchaser, the applicable Seller, Lyric III 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.
1.47 Title Commitment. "Title Commitment" shall mean, with respect to a
Facility, a title insurance commitment, issued by the Title Company, dated after
the date of this Agreement and committing the Title Company to insure
Purchaser's fee simple title to the applicable Facility, subject only to the
Permitted Liens, in the amount of the portion of the Purchase Price
7
allocated to such Facility pursuant to Section 13.12 hereof, together with
legible copies of all recorded documents referred to therein.
1.48 Title Company. "Title Company" shall mean Fidelity National Title
Insurance Company of New York.
1.49 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 Closing,
that insures Purchaser's fee simple title to the applicable Facility, subject
only to the Permitted Liens. Each Title Insurance Policy shall include the
following endorsements (unless waived by the Purchaser), 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.
1.50 Transaction Documents. "Transaction Documents" shall mean this
Agreement, the Master Lease, the Facility Subleases, the Memorandum of Lease,
the Memoranda of Sublease, the Guaranty, the Security Agreement, the Escrow
Agreement, the IHS Indemnity, the Pledge Agreements and all other agreements
related thereto executed and delivered by the parties to this Agreement.
1.51 UCC Search Report. "UCC Search Report" shall mean a UCC search report
in the name of the applicable Seller and Facility conducted at the state and
county level in the state in which the applicable Facility is located and, if
different, in the state in which the applicable Seller is organized and in the
state in which the applicable Seller's 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,
IHS, or the Facilities whatsoever, including, without limitation, those of
Sellers with respect to Sellers' Assets.
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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
3.1 Payment of Purchase Price. A portion of the Purchase Price in an amount
as set forth on Schedule 3.1 hereto shall be payable on the Closing Date by wire
transfer in accordance with wire transfer instructions to be provided by IHS and
Sellers. The Purchase Price shall be allocated among the Facilities as set forth
in Section 13.11 hereof. 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.
3.2 Earn-out Payments.
(a) In addition to the amount of the Purchase Price payable under
Section 3.1, above, the Purchaser shall make an earn-out payment to IHS in
accordance with this Section 3.2 upon a Transfer (as defined in Section 3.2(i),
below) of any Facility.
(b) The parties have established a designated value (the "Designated
Value") for each Facility, and have listed same on Schedule 3.2 hereto. The
Designated Value established for each Facility is based upon such Facility's
allocated portion of a presupposed base resale price of $138,000,000 for all of
the Facilities in the aggregate.
(c) If at any time, or from time to time, after the Closing there is a
Transfer of any one or more of the Facilities, then Purchaser shall pay to IHS,
in the manner as provided in subsection (f) below, an earn-out fee in respect of
each Facility so Transferred, calculated as follows:
(i) if the Net Proceeds (as defined in Section 3.2(i), below) in
respect of the Transfer of such Facility are more than the Designated
Value for such Facility but not more than one hundred thirty-three and
one-third (133 1/3%) percent of the Designated Value for such
Facility, then the Purchaser shall pay an earn-out fee to IHS in an
amount equal to (x) $93,750 (the "Facility Fee"), plus (y) ninety
(90%) percent of the portion of such Net Proceeds that is in excess of
the Designated Value for such Facility; and
(ii) if the Net Proceeds in respect of the Transfer of such
Facility exceed one hundred thirty-three and one-third (133 1/3%)
percent of the Designated Value for such Facility, then the Purchaser
shall pay an earn-out fee to IHS in an amount equal to (x) the
Facility Fee, plus (y) ninety (90%) percent of
9
the portion of such Net Proceeds that is more than the Designated
Value for such Facility but is not more than one hundred thirty-three
and one-third (133 1/3%) percent of the Designated Value for such
Facility, plus (z) twenty (20%) percent of the portion of such Net
Proceeds that is more than one hundred thirty-three and one-third (133
1/3%) percent of the Designated Value for such Facility.
(d) The maximum cumulative earn-out payments required to be made under
this Section 3.2 shall not exceed, in the aggregate, $67,600,000 (the "Maximum
Earn-Out Payment").
(e) If more than one Facility is Transferred in a single transaction
(or if the Transfer occurs by reason of a transaction described in Sections
3.2(i)(vi)(3) or 3.2(i)(vi)(4), or Section 3.2(j), below) then the earn-out
payment required to be made under this Section 3.2 shall be calculated on an
aggregate basis with respect to all of the Facilities Transferred in such single
transaction. In this regard, the earn-out payment required to be made upon the
closing of such transaction shall be determined by reference to the sum of the
Designated Values for all of the Facilities Transferred, and shall be calculated
based upon the aggregate Net Proceeds realized on the Transfer of all such
Facilities. A Facility Fee shall be paid with respect to each Facility
Transferred. Any Transfer pursuant to subsections (i)(vi)(3) or (i)(vi)(4),
below, shall be deemed to be a Transfer of all of the Facilities.
(f) Until the Maximum Earn-Out Payment shall have been paid, the
Purchaser shall give IHS not less than fifteen (15) days prior written notice of
the scheduled closing date of any Transfer. Such notice (a "Transfer Notice")
shall include a calculation of the earn-out fee to be paid to IHS hereunder.
Payment of the earn-out fee in respect of the Transfer of any Facility shall be
made at the closing of the transaction pursuant to which such Transfer is made,
notwithstanding that any portion of the Net Proceeds in respect of such Transfer
may be required to be paid over time in accordance with the agreements governing
such Transfer. If payment of any portion of the Net Proceeds in respect of a
Transfer is contingent upon future events or conditions, the earn-out payment
required to be made hereunder shall be calculated and paid based upon the
maximum possible contingent payment allowable under the agreements governing
such Transfer. Any payments required to be made under this Section 3.2 shall be
made in cash, by wire transfer of immediately available funds, to an account
specified by IHS in writing.
(g) In the event that any earn-out becomes payable to IHS under this
Section 3.2, and another Transfer occurs thereafter, the earn-out (if any)
becoming payable to IHS in respect to such subsequent Transfer shall be in an
amount equal to the difference between (i) the earn-out that would have been
payable pursuant to subsection (e), above, on an aggregate basis, as if such
subsequent Transfer was part of a single transaction that included all prior
Transfers, and (ii) all earn-out payments theretofore made.
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(h) Notwithstanding anything herein to the contrary, in the event
that, at the time of any Transfer of a Facility, there shall have occurred an
Event of Default as defined in the Master Lease, then, and in such event, any
earn-out becoming payable to IHS with respect to such Transfer shall be reduced
by the sum of the following:
(i) Damages, as set forth in Section 16.5 of the Master Lease;
(ii) all interest costs incurred by Purchaser in respect of any
debt financing undertaken by Purchaser in order to cure the Event of
Default under the Maser Lease; and
(iii) two (2x) times the dollar amount of any equity securities
issued by Purchaser in order to cure the Event of Default under the
Master Lease.
(i) For purposes of this Section 3.2, the following capitalized terms
have the following meanings:
(i) "Allocable Loan Amount" means, with respect to any Facility,
that portion of the original principal amount of the Loan Facility (as
defined in Section 1.28) that has been allocated to such Facility as
indicated on Schedule 3.2 hereto.
(ii) "Consideration" means the total consideration paid or
delivered upon the consummation of a Transfer, including cash, the
face value of all debt securities, the fair market value of all equity
securities, the fair market value of any other property, and the value
of long-term liabilities and short-term liabilities assumed or
guaranteed as part of the Transfer. The fair market value of any
equity securities included in the Consideration shall be determined as
follows:
(1) if the securities are traded on a national exchange, by
the average closing sales price of such securities for the thirty
(30) trading day period immediately before the date payment is
made to IHS (but if there were not reported transactions on any
trading day during such period, then the mean of the closing bid
and asked prices on such trading day shall be used), and
(2) if such securities are traded over-the-counter and
quoted through the National Association of Securities Dealers
Automated Quotation System (NASDAQ) by the mean of the closing
bid prices of such securities for the thirty (30) trading day
period immediately before the date payment is made to IHS, as
quoted in the National Quotation Bureau pink sheets;
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provided, however, that in the event that the agreements
governing such Transfer provide for a method of valuing any
securities paid or delivered as Consideration, then that basis of
valuation shall be used in computing the fair market value of
such securities. In the event that a Transfer is conducted by
means of a Long-Term Lease, "Consideration" shall mean the total
consideration (as described above) to be paid for entire term of
such Long-Term Lease (including the amount of any non-refundable
purchase option deposit), discounted to present value at a rate
of 12.521% per annum, giving effect to monthly compounding. In
the event that a Transfer is conducted by means of a mortgage,
loan or other borrowing, as described in subsection (i)(vi)(2)
above, "Consideration" shall mean the sum of the Net Proceeds of
such loan plus the then outstanding principal balance of the
Allocable Loan Amount for the Facility subject of such loan.
(iii) "Long-Term Lease" means, with respect to any Facility, a
lease of such Facility for a term of 30 years or more, or any other
lease, irrespective of stated duration, which contains an option to
purchase the subject Facility for less than the fair market value of
such Facility, determined as of the commencement date of the lease.
(iv) "Net Proceeds" means, with respect to any Transfer, the
total amount of Consideration paid or delivered in connection with
such Transfer (or deemed to have been paid or delivered pursuant to
Section 3.2(j), below), after the payment (or setting aside for
payment) of all debts and liabilities of the Facility(ies) Transferred
(including, without limitation, the portion of any obligations for
money borrowed which is allocable to such Facility(ies)), and the
costs and expenses incurred in connection with the Transfer and which
are properly allocable to such Facility(ies). However, in the case of
any Transfer of the type as described in Section 3.2(i)(vi)(3) or
Section 3.2(i)(vi)(4), "Net Proceeds" shall mean the amount as
determined pursuant to the preceding sentence, multiplied by a
fraction, the numerator of which is an amount equal to 133 1/3% of the
Designated Value for the Facilities, and the denominator of which is
an amount equal to the sum of the said numerator amount plus the total
of all purchase prices paid for all other facilities (if any) then
owned directly or indirectly by the entity which in the case of a
Transfer described in Section 3.2(i)(vi)(3), is the issuer of the
stock being issued or transferred, or in the case of a Transfer as
described in Section 3.2(i)(ii)(4), is the entity (either the
Purchaser or any Purchaser Parent) which merged or consolidated with
another entity.
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(v) "Purchaser Parent" means Monarch Properties, LLC, or any
other entity which owns directly, or indirectly through one or more
subsidiaries, at least 40% of the issued equity interests of
Purchaser.
(vi) "Transfer" means any of the following events:
(1) any sale, transfer, or Long-Term Lease (defined below)
by Purchaser of all or substantially all of the assets of any
Facility;
(2) any mortgage, loan, refinancing or other borrowing
secured by the assets of any Facility, the Net Proceeds of which,
when added to the then outstanding principal balance of the
Allocable Loan Amount for such Facility, exceed the Designated
Value for such Facility;
(3) any sale of shares of stock, share exchange or similar
transaction or event, or series of sales of shares of stock,
share exchanges or similar transactions or events, pursuant to
which the Purchaser is, or any stockholders of Purchaser are,
entitled to receive Consideration (defined below); or
(4) any consolidation or merger of Purchaser or any
Purchaser Parent with or into another entity or any merger of
another entity into Purchaser or any Purchaser Parent (in which
consolidation or merger the shareholders of Purchaser or the
Purchaser Parent receive Consideration).
(j) Notwithstanding any other provision of this Section 3.2, in the
event that Purchaser or any Purchaser Parent (the "Issuer") completes an initial
public offering of its securities pursuant to an effective registration
statement under the Securities Act of 1933, as amended (an "IPO"), the following
shall apply:
(i) such offering shall be deemed to be a Transfer of the type as
described in Section 3.2(i)(vi)(3) for which Purchaser has received
Consideration in an amount equal to the sum of (A) the offering price
per share (net of any underwriter's commissions and discounts, and net
of any underwriter's reimbursable expenses) of the securities included
in such IPO (the "IPO Price"), multiplied by the total issued and
outstanding shares of the Issuer's securities immediately after such
IPO, and (B) the IPO Price multiplied by the number of all such shares
that are issuable pursuant to any warrants, options or other rights
for the purchase of the Issuer's securities that are exercisable at
the time of the closing of the IPO for a price which is less than the
IPO price, less the exercise price in respect of such warrants,
options and other purchase rights; and
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(ii) Upon payment in full of the earn-out (if any) becoming due
in respect of the Net Proceeds deemed to be received by Purchaser in
connection with the IPO or a transaction described in Section
3.2(i)(vi)(4), no further earn-out amounts shall become payable by
Purchaser under this Agreement.
(k) If any controversy should arise between the parties hereto in
connection with the performance, interpretation or application of Section 3.2 of
this Agreement, including, but not limited to the amount of Net Proceeds
attributable to any one or more Transfers, or the fair market value of any
securities delivered as part of the Consideration in connection with any
Transfer, IHS and/or the Purchaser may serve upon the other a written notice
stating that such party desires to have the controversy reviewed by an
arbitrator. If the parties cannot agree within fifteen (15) days from the
service of such notice upon the selection of such arbitrator, an arbitrator
shall be designated by the American Arbitration Association upon written request
of either party hereto. Arbitration of any such controversy shall be conducted
in accordance with the Commercial Arbitration Rules then in force of the
American Arbitration Association and the decision and award of the arbitrator so
selected shall be binding upon IHS and the Purchaser. The arbitration will be
held in New York City. As a condition precedent to the appointment of any
arbitrator both parties shall be required to make a good faith effort to resolve
the controversy which effort shall continue for a period of thirty (30) days
prior to any demand for arbitration. The cost of any such arbitration shall be
shared equally by the parties. Each party shall pay its own costs incurred as a
result of its participation in any such arbitration.
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, Sellers, Purchaser, IHS,
Lyric and Lyric III shall deliver the documents pursuant to Sections 10.5 and
11.5 hereof.
ARTICLE V
TRANSACTION COSTS AND EXPENSES
The costs of the transaction and the expenses related to the ownership and
operation of the Sellers' Assets shall be paid as follows:
5.1 Transfer Taxes; Sales Taxes. Sellers 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. Sellers 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.
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5.2 MAI Appraisals. Sellers shall pay the cost of the MAI Appraisals
delivered by Sellers to Purchaser.
5.3 Title Insurance. Sellers shall pay the cost of the Title Commitments
and the premium for the Title Insurance Policies (including any leasehold
policies desired by Sellers) for the respective Facilities.
5.4 Surveys/UCC Search Reports. Sellers shall pay the cost of the Surveys
and the UCC Search Reports for the respective Facilities.
5.5 Environmental Reports/Remediation. Sellers 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 1.12 hereto. Sellers shall cause the
Phase I environmental assessments and any additional assessments or reports
provided by Sellers to be certified to the Purchaser for reliance by Purchaser
thereon.
5.6 Attorneys' Fees. Sellers shall pay its own attorneys' fees and the
reasonable and documented attorneys' fees, costs and disbursements of Purchaser
and Sellers.
5.7 Recording Costs. Sellers shall pay all recording fees relating to the
recording of the deeds.
5.8 Releases. Sellers 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, each Seller shall
deposit into escrow with the Escrow Agent the Deferred Maintenance Adjustment
attributable to the Facility currently owned by it.
5.10 Fee; Commitment Fee. At the Closing, Sellers shall pay to Purchaser a
commitment fee equal to an aggregate of $1,380,000..
5.11 Other Items. Purchaser has no duty to operate any Facility from and
after the Closing Date, such operations to be accomplished solely by the
applicable Seller, as sublessee of Lyric III under a Facility Sublease, subject
to the provisions of the Master Lease, or by Manager pursuant to the Facility
Management Agreement. Accordingly, each Seller shall be responsible for (a) all
revenues and expenses attributable to the Facility owned by it, 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 Facility currently owned by it, whether attributable to the period before or
after the Effective Date, (c) all utilities provided to the Facility currently
15
owned by it, 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.
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 Lyric III under the Master Lease and
each Seller under the applicable Facility Sublease.
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 the
Facility owned by it, 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 Facility owned by it is 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
16
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, 1998,
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 Facility owned
by it which is or may be required in order to comply with any Law (which work,
repairs, construction, alterations or installation has not been completed).
7.4 Assets. The Personal Property, the Real Property and the Intangible
Property 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. Schedule 7.4 hereto contains an accurate and
complete list of the material Personal Property owned or leased by such Seller
on the Closing Date used in the operation of the Facility owned by it.
7.5 No Litigation. Except as listed on Schedule 7.5 hereto, and the matters
set forth on Schedule 7.3(b) hereto and on the Phase I environmental site
assessment reports and Phase I update reports obtained by Sellers for the
benefit of Buyer from ATC Associates, Inc. ("ATC") (collectively, the "ATC
Reports"), there is no material litigation, arbitration proceeding, govern
mental 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 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.
17
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 such Seller, as of the Effective Date, are (a) in good
operating condition and in a state of good maintenance and repair, normal wear
and tear excepted, and (b) the Improvements have no structural defects or
material defects to any of their major systems 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 owned by it, 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 owned by it by any
governmental authority. Neither the Improvements owned by it, 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 in any material respect. No condemnation or similar proceeding is
pending, nor has such Seller or the Facility owned by it, 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 owned by it 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 owned by it, nor is there any threatened
action or proceeding which could result in the modification and termination of
any such zoning. There exists no current action or proceeding relating to any
alleged non-compliance with zoning Laws involving the Real Property or
Improvements owned by it.
7.9 Leases. Schedule 1.6 hereto contains an accurate and complete list of
each lease of Personal Property to which such Seller or the Facility owned by it
is a party or by which such Seller or any Facility owned by it is bound.
7.10 Liabilities. (a) The Sellers' 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.
18
7.11 Taxes. All tax returns required under applicable Law relating to the
Facility 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 any Facility owned by it.
7.12 Contracts. Schedule 1.6 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.
7.13 Contracts and Leases. With respect to those Contracts and leases
listed on Schedule 1.7 hereto, such Seller shall 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.
7.14 Financial Statements of the Facilities. (a) The Financial Statements
of the Facilities, taken as a whole, fairly present 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 Closing 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 it,
(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 secured by the Facility
owned by it, 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 it, 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
19
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 it, 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.
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 it and (ii) includes for
each such policy its type, term, limits and 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) hereto and on the ATC
Reports, 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 1.36 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.
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(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 it, requiring such Facility to be reworked or redesigned or additional
furniture, fixtures, equipment or inventory to be provided at such Facility 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 Closing Date, (ii) will, as of the Effective Date, be in the process of
being satisfied 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 Closing Date, be the subject of a valid written waiver issued by
the applicable licensing or certifying agency.
(e) The Facility owned by it and participating in the Medicare or
Medicaid Programs is in material compliance with all Conditions and Standards of
Participation in those Programs, except as set forth on Schedule 7.18(e) hereto.
7.19 Transactions with Affiliates. Except as set forth on Schedule 7.19
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 and
reimbursement of expenses arising in the ordinary course of business).
"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 it 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
review of (i) the ATC Reports, (ii) the asbestos survey reports included in the
ATC Reports, and (iii) any Phase II environmental reports included in the ATC
Reports. Except as set forth in the ATC Reports, in connection with the Facility
owned by
21
such Seller, 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 in
the ATC Reports, neither such Seller nor the Facility owned by it 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 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
in the ATC Reports, 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 such Seller or any
portion thereof or business operated therein.
7.25 Seller Licenses. Except as set forth on Schedule 1.35 hereto, 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 such Seller. Except as disclosed on Schedule 7.3 (b)
hereto, 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 and has not withheld any documents or
information that are material to the condition, assets,
22
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.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF IHS
IHS represents and warrants to Purchaser that:
8.1 Status of IHS. IHS is a corporation that is duly organized, validly
existing and in good standing under the laws of the State of Delaware.
8.2 Validity or Conflicts. This Agreement is, and all of the Transaction
Documents to be executed by IHS pursuant hereto will be, the valid obligations
of IHS, 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 IHS 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 IHS or
any Law, regulation, court order, mortgage, note, bond, indenture, agreement,
license or other instrument or obligation to which IHS is now a party or by
which any of its assets may be bound or affected.
8.3 Authority. IHS has full power and authority to execute and deliver this
Agreement and the applicable Transaction Documents to which it is a party.
8.4 Truth of Representations. The representations and warranties of each
Seller pursuant to Article VII hereof are true and complete in all material
respects.
23
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to each of the other parties
hereto that:
9.1 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.
9.2 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.
9.3 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.
9.4 No Broker. Except as set forth on Schedule 9.4 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 agrees to pay and to hold Sellers, and IHS harmless from
and against any amounts due and payable to any such adviser not scheduled with
respect to the transactions contemplated herein.
ARTICLE X
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
Each and every obligation of Purchaser to be performed on the Effective
Date shall be subject to the satisfaction as of both the Closing Date and the
Effective Date of the following express conditions precedent (it being the
understanding of the parties that any of such conditions may be waived by
Purchaser):
10.1 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
24
complied with by them prior to or on the Closing Date, including, but not
limited to, the payment of all costs, fees and expenses that Sellers are
required to pay pursuant to this Agreement.
10.2 Proceedings and Instruments Satisfactory. All proceedings, corporate
or other, to be taken by Sellers in connection with the transactions
contemplated by this Agreement, the other Transaction Documents and any other
documents incident thereto, shall be reasonably satisfac tory in form and
substance to Purchaser and Purchaser's counsel, and Sellers 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 Sellers' Licenses for each of the Facilities;
(g) valid permanent Certificates of Occupancy, if reasonably available and
required under the Law, for each of the Facilities as well as any
other licenses or Permits reasonably available and required to be
obtained from applicable governmental authorities with respect to the
use and occupancy of each of the Facilities;
(h) for each Seller, Articles of Incorporation, Certificates of Good
Standing and Certificates of Authority to Transact Business in the
state in which each Facility owned by such Seller is located;
(i) for IHS, Articles of Incorporation and Certificate of Good Standing;
(j) certified resolutions of the Board of Directors of each Seller and
certified resolutions of the Board of Directors of IHS, in each case
authorizing and approving the execution, delivery and performance of
Sellers and IHS's obligations under this Agreement and the other
Transaction Documents;
25
(k) the opinions of IHS's and Sellers' local healthcare counsel in each
state where a Facility is located, as special healthcare counsels to
IHS and Sellers, in a form reasonably acceptable to Purchaser; and
(l) the opinion of counsel to IHS and the Sellers, in a form reasonably
acceptable to Purchaser.
10.3 No Litigation. Except as provided on Schedule 10.3 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.
10.4 Representations and Warranties. The representations and warranties
made by Sellers and IHS in this Agreement and the other Transaction Documents
shall be true and correct in all material respects at and as of the Closing Date
and the Effective Date.
10.5 Deliveries at the Closing. Sellers and IHS 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;
(e) a memorandum of lease in recordable form with respect to the Master
Lease;
(f) the Facility Subleases;
(g) memoranda of sublease in recordable form with respect to each of the
Facility Subleases;
(h) the Consent and Subordination Agreement;
(i) the Escrow Agreement;
(j) the Facility Franchise Agreement;
26
(k) the Facility Management Agreement;
(l) the IHS Indemnity;
(m) the Guaranty;
(n) the Security Agreement;
(o) the Master Franchise Agreement;
(p) the Master Management Agreement; and
(q) any such other documents or instruments as Purchaser and Purchaser's
counsel shall reasonably request in connection with the transactions
contemplated by this Agreement and the other Transaction Documents.
10.6 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.
10.7 Default. Each Seller and IHS 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 such Seller and IHS is a party or by which such
Seller and IHS is bound and that materially affects or relates to the Real
Property, the Personal Property or any of the Facilities.
10.8 Approvals. The Management Committee of Monarch shall have approved the
transactions contemplated by this Agreement and the Transaction Documents.
10.9 Loan Facility. Purchaser shall have obtained the Loan Facility.
ARTICLE XI
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF SELLERS
Each and every obligation of Sellers to be performed on the Effective Date
shall be subject to the satisfaction as of both the Closing Date and the
Effective Date of the following express conditions precedent (it being the
understanding of the parties that any of such conditions may be waived by
Sellers):
27
11.1 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.
11.2 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.
11.3 No Litigation. Except as provided on Schedule 11.3 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.
11.4 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 and the
Effective Date.
11.5 Deliveries at the Closing. Purchaser shall have, or shall cause to
have, delivered to Sellers and IHS the following documents, each properly
executed and dated as of the Closing Date:
(a) the agreements identified in subparagraphs (a) through (q) of Section
10.5 hereof;
(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 or instruments as Sellers and Sellers'
counsel shall reasonably request in connection with the transactions
contemplated by this Agreement and the other Transaction Documents.
28
11.6 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.
11.7 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.
11.8 Approvals. The Board of Directors of each of the Sellers and IHS and
the requisite lenders under IHS's Revolving Credit and Term Loan Agreement shall
have approved the transactions contemplated by this Agreement and the
Transaction Documents.
ARTICLE XII
ADDITIONAL COVENANTS AND INDEMNIFICATIONS
12.1 Transfer Taxes and Fees. Sellers 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.
12.2 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.
12.3 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 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.
12.4 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
29
mutually agreed upon by Purchaser and Sellers. 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 and Sellers; 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.
12.5 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.
12.6 Indemnifications.
(a) Sellers and IHS, jointly and severally, shall indemnify and hold
harmless Purchaser and its partners, members, 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 or IHS that is contained in this Agreement or
contained in any other certificates, agreements or Transaction
Documents to which Sellers or IHS 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
30
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 or IHS concerning the Facilities,
Sellers' Assets, Sellers or IHS 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
before the Effective Date on any of the Sellers' Assets or the
Facilities 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 entered into prior to the Effective
Date with patients or others at any of the Facilities;
(viii) any deficiencies or inaccuracies occurring prior to the
Effective Date with respect 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;
(x) any sums due by any Seller 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 Sellers Licenses or Permits of a Seller applicable to the
Facility owned by such Seller or to terminate the participation of the
Facility owned by any Seller in either the Medicare or Medicaid
Programs, as a result of or caused by the transactions
31
contemplated by this Agreement and the other Transaction Documents,
including, but not limited to, the execution and delivery of the
Master Lease and each of the Facility Subleases;
(xii) the violation of any Environmental Law or the existence,
presence or Release of any Hazardous Material based on an event or
condition at or relating to any Facility that commenced or existed
prior to the Effective Date;
(xiii) any and all Claims that relate to any condition existing
on or prior to the Effective Date involving any Real Property or
Improvements which does not comply with applicable zoning Laws, other
than conditions permitted under duly issued variances and conditions
which were permitted under prior versions of applicable zoning Laws;
(xiv) any and all Claims that relate to the failure of Sellers or
Manager to pay, during the term of any applicable Facility Management
Agreement, any amounts due under any Equipment Lease Facility, as
defined in Article 7 of the Facility Management Agreement, related to
Personal Property located at any of the Facilities; and
(xv) any and all Claims that relate to any litigation,
arbitration proceeding, governmental investigation, citation, suit,
action, proceeding or claim of any kind relating to matters occurring
prior to the Effective Date, including, but not limited to, the
matters disclosed on Schedule 7.5 hereto, involving IHS, any of the
Sellers or any of the Facilities.
Sellers and IHS 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 12.6(a), along with all reasonable costs and expenses relative to any
such Claims, including reasonable and documented attorneys' fees and expenses.
Sellers and IHS shall have the right to assume and control the defense (but not
the settlement) of all Claims under this Section 12.6(a), including the
employment of counsel of their choosing; provided, however, that if, under
applicable codes of professional responsibility, any counsel proposed by Sellers
and IHS might reasonably be expected to have a conflict of interest in
representing Sellers and IHS, as well as the Purchaser Indemnified Parties, then
the selection of such counsel shall be subject to the approval of the Purchaser
Indemnified Parties, which approval may not be unreasonably withheld or delayed.
Sellers and IHS shall pay all costs and expenses relative to the conduct of such
defense, including attorneys' fees and expenses, and the Purchaser Indemnified
Parties shall cooperate fully with Sellers and IHS in connection with the
conduct of such defense. If Sellers and IHS fail to respond or do not admit
responsibility for any Claims under this Section 12.6(a), then the Purchaser
Indemnified Parties may take such necessary steps to defend themselves and all
reasonable and documented costs and expenses
32
therewith, including reasonable and documented attorneys' fees and expenses, may
be included as part of any asserted Claims under this Section 12.6(a). The
Purchaser Indemnified Parties shall, nevertheless, have the right, if they so
elect, to participate (with counsel of their choosing and at their cost and
expense, which counsel must be approved by Sellers and IHS, which approval may
not be unreasonably withheld or delayed) in the defense of any such Claim in
which they may be a party without relieving Sellers and IHS of their obligation
to defend the same. With respect to the settlement or compromise of Claims under
this Section 12.6(a): (A) if the Purchaser Indemnified Parties decline to accept
a bona fide offer of settlement or compromise that is recommended by Sellers and
IHS, then the maximum liability of Sellers and IHS for such Claim shall not
exceed that amount for which Sellers and IHS would have been liable had such
settlement or compromise been accepted and (B) if Sellers and IHS decline to
accept a bona fide offer of settlement or compromise that is recommended by the
Purchaser Indemnified Parties, then Sellers and IHS shall be liable for whatever
outcome results from such Claims; provided, however, that Sellers and IHS may
not settle or compromise any Claims under this Section 12.6(a) without either
the prior written consent of the Purchaser Indemnified Parties or a full and
complete release of the Purchaser Indemnified Parties.
(b) Purchaser shall indemnify and hold harmless Sellers and IHS, 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 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
12.6(b), along with all reasonable costs and expenses relative to any such
Claims, including reasonable and documented attorneys' fees and expenses.
Purchaser shall have the right to assume and control the defense (but not the
settlement) of all Claims under this Section 12.6(b), including the employment
of counsel of their choosing; provided, however, that if, under applicable codes
of professional responsibility, any counsel proposed by Purchaser might
reasonably be expected to have a conflict of interest in representing Purchaser,
as well as the Seller Indemnified Parties, then the selection of such counsel
shall be subject to the approval of the Seller Indemnified Parties, which
approval may not be unreasonably withheld or delayed. Purchaser shall pay all
costs and expenses relative to the conduct of such defense, including attorneys'
fees and expenses, and the Seller Indemnified Parties shall cooperate fully with
Purchaser in connection with the conduct of such defense. If Purchaser fails to
respond or does not admit responsibility for any Claims under this
33
Section 12.6(b), then the Seller Indemnified Parties may take such necessary
steps to defend themselves and all reasonable and documented costs and expenses
therewith, including reasonable and documented attorneys' fees and expenses, may
be included as part of any asserted Claims under this Section 12.6(b). The
Seller Indemnified Parties shall, nevertheless, have the right, if they so
elect, to participate (with counsel of their choosing and at their own cost and
expense, which counsel must be approved by Purchaser, which approval may not be
unreasonably withheld or delayed) in the defense of any such Claim in which they
may be a party without relieving Purchaser of its obligation to defend the same.
With respect to the settlement or compromise of Claims under this Section
12.6(b): (A) if the Seller Indemnified Parties decline to accept a bona fide
offer of settlement or compromise that is recommended by Purchaser, then the
maximum liability of Purchaser for such Claim shall not exceed that amount for
which Purchaser would have been liable had such settlement or compromise been
accepted and (B) if Purchaser declines to accept a bona fide offer of settlement
or compromise that is recommended by the Seller Indemnified Parties, then
Purchaser shall be liable for whatever outcome results from such Claims;
provided, however, that Purchaser may not settle or compromise any Claims under
this Section 12.6(b) without either the prior written consent of the Seller
Indemnified Parties or a full and complete release of the Seller Indemnified
Parties.
(c) The indemnities set forth in this Section 12.6 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.
ARTICLE XIII
MISCELLANEOUS
13.1 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 Agreement, whether or not similar, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
13.2 Governing Law. THIS AGREEMENT AND THE TRANSACTION DOCUMENTS SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH LAWS OF THE STATE OF NEW YORK. SELLERS
AND IHS CONSENT TO IN PERSONAM JURISDICTION BEFORE THE STATE AND FEDERAL COURTS
OF THE STATE OF NEW YORK, AND AGREE THAT ALL DISPUTES CONCERNING
34
THIS AGREEMENT MAY BE HEARD, AT PURCHASER'S OPTION, IN THE STATE AND FEDERAL
COURTS LOCATED IN THE STATE OF NEW YORK. SELLERS AND IHS AGREE THAT SERVICE OF
PROCESS MAY BE EFFECTED UPON SELLERS AND IHS 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.
13.3 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.
13.4 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 IHS and any Seller: Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Copy to: Blass & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, 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
35
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
13.5 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.
13.6 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.
13.7 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.
13.8 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, because of any reliance on the
representations, warranties and agreements contained in this Agreement.
13.9 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.
13.10 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.
13.11 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Facilities as set forth on Schedule 13.11 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.
36
13.12 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
37
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.
MONARCH PROPERTIES, LP
By: MP Operating, LLC, its General Partner
By: MP Operating, Inc., its Manager
By: (Seal)
-----------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Financial Officer
--------------------------
INTEGRATED HEALTH SERVICES, INC.
By: (Seal)
---------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Senior Vice President
------------------------------
SELLERS:
BETHAMY LIVING CENTER
MANAGEMENT COMPANY, THE GENERAL
PARTNER OF BETHAMY LIVING CENTER
LIMITED PARTNERSHIP
BRIAR HILL, INC.
CEDARCROFT HEALTH SERVICES, INC.
IHS ACQUISITION NO. 103, INC.
IHS ACQUISITION NO. 114, INC.
IHS ACQUISITION NO. 121, INC.
IHS ACQUISITION NO. 124, INC.
IHS ACQUISITION NO. 125, INC.
IHS ACQUISITION NO. 127, INC.
IHS ACQUISITION NO. 128, INC.
IHS ACQUISITION NO. 129, INC.
IHS ACQUISITION NO. 131, INC.
IHS ACQUISITION NO. 132, INC.
IHS ACQUISITION NO. 133, INC.
S-1
IHS ACQUISITION NO. 134, INC.
IHS ACQUISITION NO. 136, INC.
IHS ACQUISITION NO. 138, INC.
IHS ACQUISITION NO. 139, INC.
IHS ACQUISITION NO. 140, INC.
IHS ACQUISITION NO. 168, INC.
IHS ACQUISITION NO. 170, INC.
IHS ACQUISITION NO. 171, INC.
IHS ACQUISITION NO. 174, INC.
INTEGRATED OF AMARILLO, INC.
INTEGRATED HEALTH SERVICES AT
BRIARCLIFF HAVEN, INC.
INTEGRATED HEALTH SERVICES AT
CENTRAL FLORIDA, INC.
INTEGRATED HEALTH SERVICES AT
COLORADO SPRINGS, INC.
INTEGRATED HEALTH SERVICES AT
HANOVER HOUSE, INC.
MANCHESTER INTEGRATED HEALTH,
INC.
REST HAVEN NURSING CENTER
(WHITEMARSH), INC.
By: (Seal)
---------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Senior Vice President
------------------------------
S-2
EXHIBIT A
SELLERS
-------
-------------------------------------------------------------------------------------------------------------------
SELLER NAME STATE OF INCORPORATION FACILITY D/B/A/
-------------------------------------------------------------------------------------------------------------------
Integrated Health Services at Delaware Integrated Health Services of
Colorado Springs, Inc. Colorado Springs
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 103, Inc. Delaware Horizon Healthcare & Specialty
Center
-------------------------------------------------------------------------------------------------------------------
Integrated Health Services at Delaware Integrated Health Services of Vero
Central Florida, Inc. Beach
-------------------------------------------------------------------------------------------------------------------
Briar Hill, Inc. Florida Integrated Health Services of Florida
at Auburndale
-------------------------------------------------------------------------------------------------------------------
Bethamy Living Center Limited Florida Integrated Health Services of Florida
Partnership at Clearwater
-------------------------------------------------------------------------------------------------------------------
Integrated Health Services at Delaware Integrated Health Services of Florida
Central Florida, Inc. at Fort Xxxxxx
-------------------------------------------------------------------------------------------------------------------
Integrated Health Services at Georgia Integrated Health Services of Atlanta
Briarcliff Haven, Inc. at Briarcliff Haven
-------------------------------------------------------------------------------------------------------------------
Cedarcroft Health Services, Inc. Pennsylvania Integrated Health Services of St.
Louis at Big Bend Xxxxx
-------------------------------------------------------------------------------------------------------------------
Manchester Integrated Health, Inc. Pennsylvania Integrated Health Services of New
Hampshire at Manchester
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 121, Inc. Delaware Ruidoso Care Center
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 125, Inc. Delaware Meadowview Care Center
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 124, Inc. Delaware Washington Square
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition Xx. 000, Xxx. Xxxxxxxx XXX - Xxxxxxx Xxxx
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 127, Inc. Delaware Midwest City Nursing
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 114, Inc. Delaware Xxxxxxx Xxxxx
-------------------------------------------------------------------------------------------------------------------
Rest Haven Nursing Center Pennsylvania Integrated Health Services at
(Whitemarsh), Inc. Whitemarsh
-------------------------------------------------------------------------------------------------------------------
Integrated of Amarillo, Inc. Texas Amarillo Specialty Hospital
-------------------------------------------------------------------------------------------------------------------
Integrated of Amarillo, Inc. Texas Integrated Health Services of
Amarillo
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 128, Inc. Delaware Doctors Healthcare Center
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
SELLER NAME State of Incorporation Facility d/b/a/
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 140, Inc. Delaware Harbor View Care Center
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition Xx. 000, Xxx. Xxxxxxxx Xxxxxxxx Xxxxxxx
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 132, Inc. Delaware Heritage Gardens
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 138, Inc. Delaware Heritage Manor Longview
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 129, Inc. Delaware Heritage Manor Plano
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 133, Inc. Delaware Heritage Place of Grand Prairie
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 131, Inc. Delaware Horizon Healthcare - El Paso
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 170, Inc. Delaware HSH- Corpus Christi
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 171, Inc. Delaware HSH- El Paso
-------------------------------------------------------------------------------------------------------------------
Integrated Health Services at Delaware Mountain View Place
Hanover House, Inc.
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 139, Inc. Delaware Parkwood Place
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 174, Inc. Delaware Plano Specialty Hospital
-------------------------------------------------------------------------------------------------------------------
IHS Acquisition No. 136, Inc. Delaware Silver Springs Nursing and
Rehabilitation Center
-------------------------------------------------------------------------------------------------------------------
EXHIBIT B
DESCRIPTION OF FACILITIES
-------------------------
-----------------------------------------------------------------------------------------------------------------------------------
FACILITY NAME ADDRESS BEDS SUBTENANT NAME STATE OF
INCORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 3625 Parkmoor Village 155 Integrated Health Delaware
of Colorado Springs Colorado Springs, Colorado Services at Colorado
80917 Springs, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Horizon Healthcare & 0000 X. Xxxx Xxxx 158 IHS Acquisition No. Delaware
Specialty Center Xxxxxxx Xxxxx, Xxxxxxx 00000 103, Inc.
(HHC- Daytona) 000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 0000 00xx Xxxxxx 110 Integrated Health Delaware
of Vero Beach Xxxx Xxxxx, Xxxxxxx 00000 Services at Central
000-000-0000 Florida, Inc.
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 000 Xxx Xxxxxx Xxxxx Xxxx 120 Briar Hill, Inc. Florida
of Florida at Auburndale Xxxxxxxxxx, Xxxxxxx 00000
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 0000 Xxxxxxxx Xxxxxx 150 Bethamy Living Center, Florida
of Florida at Clearwater Xxxxxxxxxx, Xxxxxxx 00000 Limited Partnership
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 000 Xxxxx 00xx Xxxxxx 107 Integrated Health Delaware
of Florida at Xxxx Xxxxxx Xxxx Xxxxxx, Xxxxxxx 00000 Services at Central
000-000-0000 Florida, Inc.
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 0000 Xxxxxxxxxx Xxxx 128 Integrated Health Georgia
of Atlanta at Briarcliff Xxxxxxx, Xxxxxxx 00000 Services at Briarcliff
Haven 404-875-6456 Haven, Inc.
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx 000 Xxxxxx Xxxx 99 IHS Xxxxxxxxxxx Xx. Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000 114, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
FACILITY NAME ADDRESS BEDS SUBTENANT NAME STATE OF
INCORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 000 Xxxxxxxx Xxx. 176 Cedarcroft Health Pennsylvania
of Xx. Xxxxx xx Xxx Xxxx Xxxxxx Xxxx, Xxxxxxxx 00000 Services, Inc.
Xxxxx 000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 000 Xxxxxxx Xxxx Xxxx 68 Manchester Integrated Pennsylvania
of New Hampshire at Manchester, New Hampshire Health, Inc.
Manchester 03102
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Ruidoso Care Center 5th & D Street 73 IHS Acquisition No. Delaware
Ruidoso, New Mexico 121, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx Xxxx Xxxxxx 00 Xxxx Xxxxxx 100 IHS Acquisition No. Delaware
Xxxxxxx, Xxxx 00000 125, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xx. XX 96 IHS Acquisition No. Delaware
Xxxxxx, Xxxx 00000 124, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
HSH - Midwest City 0000 Xxxxxxxx Xxxxxx 31 IHS Acquisition No. Delaware
Xxxxxxx Xxxx, Xxxxxxxx 00000 168, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Midwest City Nursing 0000 Xxxxxxxx Xxxxxx 106 IHS Acquisition No. Delaware
Xxxxxxx Xxxx, Xxxxxxxx 00000 127, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 0000 Xxxxx Xxxx 244 Rest Haven Nursing Pennsylvania
at Whitemarsh Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Center (Whitemarsh),
610-825-6560 Inc.
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Amarillo Specialty 0000 Xxxx Xxxxx Xxxxx 30 Integrated of Amarillo, Texas
Hospital Xxxxxxxx, Xxxxx 00000 Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
FACILITY NAME ADDRESS BEDS SUBTENANT NAME STATE OF
INCORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
Doctors Healthcare Center 0000 Xxxxx Xxxx Xxxxx 325 IHS Acquisition No. Delaware
Dallas, Texas 128, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Harbor View Care Center 0000 Xxxxx Xxxxxx 116 IHS Acquisition Xx. Xxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000 140, Inc.
(Nueces County)
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Heritage Estates 201 Sycamore School Road 152 IHS Acquisition No. Delaware
Ft. Xxxxx, Xxxxx 00000 134, Inc.
(Tarrant County)
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx Drive 150 IHS Acquisition No. Delaware
Xxxxxxxxxx, Xxxxx 00000 132, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Heritage Manor Longview 000 Xxxxxxxx Xxxxx 150 IHS Acquisition No. Delaware
Xxxxxxxx, Xxxxx 00000 138, Inc.
(Xxxxx County)
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Heritage Manor Plano 0000 Xxxx Xx. 186 IHS Acquisition No. Delaware
Xxxxx, Xxxxx 00000 129, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Heritage Place of Grand 000 Xxxxx Xxxxxx 166 IHS Acquisition No. Delaware
Prairie Xxxxx Xxxxxxx, Xxxxx 00000 133, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Horizon Healthcare -El 0000 X. Xxxxxx Xxxxxx. 182 IHS Acquisition Xx. Xxxxxxxx
Xxxx Xx Xxxx, Xxxxx 00000 131, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
FACILITY NAME ADDRESS BEDS SUBTENANT NAME STATE OF
INCORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
HSH- Corpus Christi 0000 Xxxxx Xxxxxx 31 IHS Acquisition Xx. Xxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000 170, Inc.
(Nueces County)
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
XXX- Xx Xxxx 0000 X. Xxxxxx Xxxxxx 00 IHS Acquisition No. Delaware
Xx Xxxx, Xxxxx 00000 171, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Integrated Health Services 0000 Xxxx Xxxxx Xxxxx 120 Integrated of Amarillo, Texas
of Amarillo Xxxxxxxx, Xxxxx 00000 Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxx Xxxxx 0000 Xxxxxxxxx Xxxx 187 Integrated Health Delaware
Xx Xxxx, Xxxxx 00000 Services at Hanover
915-544-2002 House, Inc.
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxx 000 X. Xxxxx 000 XXX Xxxxxxxxxxx Xx. Xxxxxxxx
Xxxxxx, Xxxxx 00000 139, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Plano Specialty Hospital 0000 Xxxx Xxxx 30 IHS Acquisition No. Delaware
(HSH- Plano) Xxxxx, Xxxxx 00000 174, Inc.
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
Silver Springs Nursing and 00000 Xxxx Xxxxx Xxxxx 150 IHS Acquisition No. Delaware
Rehabilitation Center Xxxxxxx, Xxxxx 00000 136, Inc.
(Xxxxxx County)
000-000-0000
000-000-0000 (fax)
-----------------------------------------------------------------------------------------------------------------------------------
