AGREEMENT OF SALE AND PURCHASE
between
OMEGA HEALTHCARE INVESTORS, INC., as Seller
and
XXXXX HEALTHSYSTEM PHILADELPHIA, INC., as Buyer
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT made this 12th day of May, 2000, by and
between OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation, having an
address at 000 Xxxxxxx Xxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 ("Seller") and
XXXXX HEALTHSYSTEM PHILADELPHIA, INC., a Pennsylvania corporation, having an
address at c/o Tenet Healthcare, Center Square-West Tower, 0000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Buyer").
W I T N E S S E T H :
In consideration of the covenants and provisions contained
herein, the parties agree as follows:
1. Agreement to Sell and Purchase. Seller agrees to sell to Buyer, and
Buyer agrees to purchase from Seller, subject to all of the terms and conditions
of this Agreement, the Seller's leasehold interest as tenant in the four (4)
ground leases and as landlord in the four(4) operating leases, each dated
October 27, 1993, by and between Seller on the one hand and The Graduate
Hospital or Graduate Health System, Inc. on the other (each "GHS")(predecessor
in interest to Allegheny Hospitals, Centennial, which was the predecessor in
interest to Buyer) relating to four (4) separate parcels of property located in
the City of Philadelphia, Commonwealth of Pennsylvania and consisting of the
following:
(1) Real Property. The Seller's leasehold interest as tenant under the
ground leases, attached hereto as Exhibit A (the "Ground Leases"), and the
Seller's leasehold interest as landlord under the operating leases, attached
hereto as Exhibit B (the "Operating Leases"), relating to those certain tracts
of land more fully described on Exhibit C to this Agreement containing the
following improvements and further described as follows:
(i) The Ground Leases and Operating Leases, each dated October 27,
1993, and originally by and between Seller and GHS and described as follows:
(1) A four (4) floor medical office
building located at 000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx ("520 Xxxxx 00xx
Xxxxxx");
(2) A thirteen (13) floor medical
office (commonly known as Pepper Pavilion)
building located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx ("1800 Lombard
Street");
(3) A six (6) floor medical office
building located at 0000 Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Pennsylvania ("0000 Xxxxx
Xxxxxx"); and
(4) A five (5) floor parking garage,
located at 0000 Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx ("0000 Xxxxx Xxxxxx") (520
Xxxxx 00xx Xxxxxx, 0000 Xxxxxxx Xxxxxx, 0000
Xxxxx Xxxxxx and 0000 Xxxxx Xxxxxx are
herein collectively called the "Locations"
and individually a "Location").
(ii) The estate for years in each Location heretofore conveyed to
Seller by GHS.
The real property shall include all appurtenances thereto, as
well as Seller's interest, if any, in the personal property, equipment and site
improvements located at each Location and all right, title and interest of
Seller, if any, in and to any land lying in the bed of any street, opened or
proposed, abutting each Location, and all right, title and interest of Seller,
if any, in and to any unpaid award for the taking by eminent domain of Seller's
interest in the Ground Leases and Operating Leases or for damage to the land
covered by the Ground Leases by reason of change of grade of any street. The
foregoing, together with the Ground Leases and the Operating Leases shall
hereinafter be referred to collectively as the "Real Property."
(2) Personal Property. All fixtures, furniture, equipment, supplies
and other personal property, if any, owned by Seller and attached or
appurtenant to, or located in or on, or used in connection with the Real
Property, together with Seller's right, title and interest, if any, in and to
all intangible personal property used in the ownership, operation or maintenance
of the Real Property (collectively, the "Personal Property").
(3) Property. The Real Property and the Personal Property are
sometimes collectively referred to as the "Property".
2. Purchase Price.
Amount and Method of Payment. The purchase price (the "Purchase Price")
for the Property, subject to adjustments as provided in this Agreement, shall
be Thirty-Four Million Dollars ($34,000,000), and shall be paid to Seller at
Closing by wire transfer of immediately available funds.
3. Closing.
(1) Place of Closing. The closing and settlement of this transaction
("Closing") shall take place at the offices of Wolf, Block, Xxxxxx and
Xxxxx-Xxxxx LLP, 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
or pursuant to an escrow agreement mutually satisfactory to Seller and Buyer.
(2) Closing Date. Closing and funding shall occur at
11:00 a.m.(EST) on May 31, 2000, or on such other date as the parties shall
jointly designate in writing (the "Closing Date").
4. Condition of Title.
(1) Title to Real Property. Title to the Real Property shall be good
and marketable and free and clear of all liens, restrictions, easements,
encumbrances, leases, tenancies (other than as provided for in the Ground
Leases and the Operating Leases and any subleases made by the lessee under
the Operating Leases) and other title objections, except for the Permitted
Encumbrances (as hereinafter defined), and shall be insurable as such and
as provided in this Agreement by Chicago Title Insurance Company (the "Title
Company") pursuant to an ALTA Owner's Policy of Title Insurance (the "Owner's
Policy of Title Insurance"). The term "Permitted Encumbrances" shall mean: (i)
any lien or other encumbrance that encumbers the Buyer's fee title to the land
covered by each Ground Lease (as distinguished from Seller's interests under
each Ground Lease and Operating Lease); (ii) the items set forth on Exhibit D to
this Agreement; (iii) any items deemed permitted encumbrances pursuant to
Section 5(c) hereof; (iv) as to the leasehold estate under each Ground Lease,
the terms and conditions of the respective Ground Lease and the rights of Buyer
as lessee under the respective Operating Lease; and (v) as to the lessor's
interest in each Operating Lease, the rights of Buyer as lessee thereunder.
The premium for the Owner's Policy of Title Insurance and such endorsements
will be paid by Buyer. Title to the Real Property shall be such that Title
Company will commit to the Owner of the fee simple estate in each Location to
insure such estate free and clear of any right, title or interest of Seller
under the Ground Leases or as holder of an estate for years, upon presentation
by Buyer and (if different) Seller's assignee at Closing of instruments of
termination.
(2) Title to Personal Property. Title to the Personal Property, if any,
shall be good and marketable and free and clear of all liens, security interests
and other encumbrances. Seller shall pay at or before Closing all sums required
to free the Personal Property, if any, of any interest of any party and shall
cause to be filed at or before Closing any termination statement, release,
discharge or other document required to remove of record any encumbrance upon
the Personal Property, if any, held by any party.
(3) Commitment to Insure. Within one (1) business day after
the date of this Agreement, Buyer shall order a commitment to insure with
respect to the Real Property from the Title Company, such commitment to show
that title to Seller's leasehold interest in the Real Property is vested in
Seller, and to commit to insure title to the Real Property as required by
Section 5(a). If the commitment to insure discloses that title to the Real
Property is subject to any defect, encumbrance or other title objection other
than the Permitted Encumbrances, or if Buyer is unable to obtain such commitment
to insure, Buyer shall have the right to give to Seller written notice
specifying such defect, encumbrance or other title objection, or inability to
obtain such commitment to insure, and Seller shall (subject to the remaining
provisions of this subparagraph) use its diligent efforts to correct such
defect, encumbrance or other title objection and obtain the commitment to insure
from a reputable title insurance company acceptable to Buyer, all by the date
which is ten (10) days following Buyer's notice specifying the defect.
Notwithstanding anything in this Section 5(c) to the contrary, Seller shall not
be deemed to have any obligation to correct any defect, encumbrance or other
title objection or to obtain the commitment, unless Seller expressly undertakes
such an obligation by a written notice to or written notice agreement with Buyer
given or entered into on or prior to the expiration of such 10-day period,
except at Closing, Seller shall be obligated to cure, satisfy and remove any
liens securing a monetary obligation created by Seller and to pay any past due
taxes and assessments against the Property and the same shall not constitute
Permitted Encumbrances. Buyer's sole right with respect to any matter to which
Buyer objects in a timely manner shall be to elect on or before the expiration
of the Inspection Period to terminate this Agreement pursuant to Section 14(c)
hereof.
5. Possession.
(1) Delivery of Possession. Actual sole and exclusive
physical possession of the Property shall be given to Buyer at Closing
unoccupied and free of any leases, claims to or rights of possession, other than
the rights under the Ground Leases and the Operating Leases and the rights of
subtenants, if any, of Buyer under the Operating Leases, by delivery of the keys
to the Property and Seller's assignment of leases, in the form attached as
Exhibit E (the "Assignment"), Seller's xxxx of sale in the form of Exhibit F to
this Agreement duly executed and acknowledged by Seller (the "Xxxx of Sale"),
and any instrument (including any quit claim deed) necessary to terminate and
discharge or vest in Buyer all of Seller's right, title and interest in or to
the Improvements and Seller's estate for years in the Locations.
6. Apportionments.
(1) (i) Base Monthly Rent. Base monthly rent paid by Buyer
as tenant under the Operating Leases shall be apportioned pro rata between
Seller and Buyer on a per diem basis as of the Closing Date, with all base
monthly rent for the Closing Date for Buyer's account. If after the Closing Date
it is determined that Seller collected any prepaid rents or other charges which
were not credited to Buyer at Closing as required by this Section, Seller shall
pay such sums to Buyer upon notice from Buyer.
(1) Any credit due to Buyer pursuant to this Section 6(a)
shall be applied as a credit against the Purchase Price, and any credit due to
Seller pursuant to this Section 6(a) shall be paid by Buyer to Seller at Closing
as an addition to the Purchase Price.
(2) Escrow Agreements. The total sum of the amounts, including
interest, held by Bank One Trust Company ("Bank One") pursuant to the four (4)
escrow agreements, each dated December 17, 1999, by and among Seller, Buyer and
Bank One attached hereto as Exhibit G (the "Escrow Agreements"), which escrow
accounts and their initial principal amounts are listed as follows: (1)
---------------------------------------- ------------------------------------- -------------------------------------
Operating Lease Escrow Account Initial Principal
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
000 Xxxxx 00xx Xxxxxx 850048303 $ 37,500
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
0000 Xxxxxxx Xxxxxx 850048300 $450,000
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
0000 Xxxxx Xxxxxx 850048302 $199,200
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
0000 Xxxxx Xxxxxx 850048301 $187,500
---------------------------------------- ------------------------------------- -------------------------------------
together with all interest earned thereon as of the Closing Date, shall be
credited to Buyer at Closing and applied as a credit against the Purchase Price.
At Closing, Buyer shall give to Bank One written notice, in form reasonably
satisfactory to Seller and to Bank One, directing Bank One to deliver to Seller,
at Closing, the amounts then held in such escrow accounts, including all
interest earned thereon as of the Closing Date.
(3) Transfer and Sales Taxes. The Seller and the Buyer
shall equally divide the costs at Closing of all realty transfer taxes, if any,
and Buyer shall pay any recordation fees imposed on any documents to be filed of
record to reflect the transaction contemplated by this Agreement. Seller and
Buyer acknowledge and agree that the Personal Property, if any, to be
transferred hereunder is not being sold in the normal course of Seller's trade
or business, and agree to execute the appropriate exemption certificates for the
purpose of obtaining sales tax exemptions with respect to the transfer of the
Personal Property, if necessary.
7. Representations and Warranties of Seller. Seller makes the following
representations and warranties to Buyer, which representations and warranties
are true and correct as of the date of this Agreement, and shall be true and
correct at and as of the Closing Date in all material respects as though such
representations and warranties were made both at and as of the date of this
Agreement, and at and as of the Closing Date.
(1) Seller has not received any written notice ("Defect Notice"), from
any predecessor of Buyer as lessee under the Operating Leases, from any
governmental agency or from any insurance company which has issued a policy
with respect to the Property or from any board of fire underwriters (or other
body exercising similar functions) claiming any defects or deficiencies in the
Property or suggesting or requesting the performance of any repairs, alterations
or other work to the Property.
(2) There are no management, service, equipment, supply, security,
maintenance, construction, or other agreements of Seller with respect to or
affecting the Property, which will bind or affect Buyer after Closing.
8. Survival.
(1) Surviving Representations and Warranties. The representations
and warranties of Seller set forth in Section 8 shall remain in effect for a
period of twelve (12) months following the Closing Date and recovery may occur
thereafter as to each breach as to which Buyer shall have given to Seller
written notice within such twelve (12) month period.
9. Operations Prior to Closing. Between the date of the execution of this
Agreement and Closing:
(a) Compliance with Obligations. Seller shall comply in all
material respects with all of the obligations of Seller under the Ground Leases,
the Operating Leases, the Escrow Agreements and any other agreements and
contractual arrangements of Seller affecting the Property.
10. Environmental Matters. Seller represents and warrants to Buyer that (a)
Seller has not received written notice of any or threatened civil, criminal
or administrative proceeding relating to environmental laws or contaminants on,
over, under, from or affecting the Property; (b) Seller has not received any
written notice of violation or potential liability regarding the Property or
activities thereon relating to environmental law or contaminants on, over,
under, from or affecting the Property; and (c) Seller has not entered into any
consent order, consent decree, administrative order, judicial order or
settlement relating to environmental laws or contaminants on, over, under,
migrating from or affecting the Property.
11. Casualty; Destruction.
(1) Destruction. If at any time prior to the Closing Date any
material portion of the Property is destroyed or damaged as a result of fire or
any other casualty ("Casualty"), Buyer shall have the right, at its sole option,
of (i) terminating this Agreement (by written notice to Seller given within ten
(10) days after such Casualty) or (ii) proceeding with the Closing. If a
Casualty occurs less than ten (10) days prior to Closing, at the option of Buyer
or Seller, Closing shall be postponed to a date not earlier than ten (10) days
after the Casualty. If Buyer does not terminate this Agreement, the proceeds of
any insurance with respect to the Property paid between the date of this
Agreement and the Closing Date, together with an amount equal to Seller's
deductible under the Policy, less sums properly expended by Seller in
restoration, shall be paid to Buyer at the time of Closing and all unpaid claims
and rights in connection with losses to the Property shall be assigned to Buyer
at Closing without in any manner affecting the Purchase Price.
12. Eminent Domain. If at any time prior to the Closing Date: a
Taking affects all or any material part of the Property, or if any proceeding
for a Taking is commenced, or if notice of the contemplated commencement of a
Taking is given, Seller shall promptly give written notice ("Taking Notice")
thereof to Buyer. Buyer shall have the right, at its sole option, of terminating
this Agreement by written notice to Seller within ten (10) days after receipt by
Buyer of the Taking Notice. If a Taking Notice is given to Buyer less than ten
(10) days prior to Closing, at the option of Buyer or Seller, Closing shall be
postponed to a date not earlier than ten (10) days after Buyer's receipt of the
Taking Notice. If Buyer does not terminate this Agreement, the Purchase Price
shall be reduced by the total of any awards or damages received by Seller and
Seller shall, at Closing, be deemed to have assigned to Buyer all of Seller's
right, title and interest in and to any awards or damages to which Seller may
have become entitled or may thereafter be entitled by reason of any exercise of
the power of eminent domain or condemnation with respect to or for the Taking of
the Property or any portion thereof. For purposes of this Section 13, a taking
shall be considered to be "material" if the value of the portion of the Property
taken materially adversely affects the ability to operate the remainder of the
Property for its intended use.
13. Conditions of Buyer's Obligations.
(1) Conditions. The obligations of Buyer under this Agreement are
subject to the satisfaction at the time of Closing of each of the following
conditions (any one of which may be waived in whole or in part in writing by
Buyer at or prior to Closing):
(1) all of the representations and warranties by Seller set forth
in this Agreement shall be true and correct at and as of the Closing
Date in all material respects as though such representations and warranties
were made both at and as of the date of this Agreement and at and as of the
Closing Date;
(2) Seller shall have performed in all material respects all
covenants, agreements and conditions required by this Agreement to be
performed by Seller prior to or as of the Closing Date;
(2) Failure of Condition. In the event any of the conditions
set forth in Section 14(a) are not satisfied as of the Closing Date and Buyer
has not previously waived such condition in writing, Buyer shall have the right
(in addition to all other rights and remedies available to Buyer under this
Agreement), at Buyer's sole option (by written notice to Seller) to (i)
terminate Buyer's obligations under this Agreement, or (ii) complete Closing
notwithstanding the unsatisfied condition, or (iii) adjourn the Closing for not
more than thirty (30) days, during which period Seller may, but shall not be
obligated to, satisfy any unsatisfied conditions within Seller's power to
satisfy, or (iv) if such condition is not fulfilled by reason of Seller's
intentional act or omission and can be remedied by the payment of an
ascertainable sum, Buyer may complete Closing and deduct such sum from the
Purchase Price.
14. Items to be Delivered at Closing.
(1) By Seller. At Closing, Seller shall deliver to Buyer the following:
(1) Assignment of Leases. An Assignment of the Ground Leases
and the Operating Leases, duly executed and acknowledged by Seller, assigning to
Buyer or Buyer's assignee all of the lessor's and Seller's rights, title and
interest in the Ground Leases and Operating Leases.
(2) Xxxx of Sale. The Xxxx of Sale.
(3) Deeds or other Discharge of Estate for Years. Any instrument
(including any quit claim deed) necessary to terminate and discharge or to vest
in Buyer all of Seller's right, title and interest in the ownership of the
Improvements and Seller's estate for years in the Locations.
(4) Resolutions; Title Company Affidavits, Etc.; Such resolutions
and certificates as the Title Company shall require to evidence the due
authorization of the execution and performance of this Agreement and the
documents to be delivered pursuant hereto.
(5) Conveyance of Awards. All proper instruments for the conveyance
of the awards, if any, referred to in Sections 1(a) and 13.
(6) FIRPTA Affidavit in form attached as Exhibit H
(7) Condominium Matters. If and to the extent that Seller has any
authority over any condominium regime affecting any Property, or if any person
selected by or affiliated with Seller serves as an officer or director of any
such condominium regime, then an instrument of assignment or relinquishment of
such authority and resignations of each such officer or director.
(8) Other Documents. Any other documents required to be
delivered by Seller pursuant to any other provisions of this Agreement.
(2) By Buyer. At Closing, Buyer shall deliver to Seller the following:
(1) Purchase Price. The Purchase Price subject to the adjustments
as provided for in this Agreement.
(2) Assumption of Lease Obligations. The Assignment, duly
executed and acknowledged by Buyer and in proper form for recording,
pursuant to which Buyer assumes the obligations of Seller arising under the
Ground Leases and the Operating Leases from and after the Closing Date.
(3) Other Documents. Any other document required to be delivered
by Buyer pursuant to any other provisions of this Agreement.
15. Litigation Matters. There is currently pending before the United
States Court of Appeals for the Second Circuit, on appeal from the United
States Bankruptcy Court and the United States District Court, an action
by Seller seeking reimbursement for taxes paid by Seller in connection with the
Operating Leases and it is hereby agreed that any amounts owing to Omega as a
result of such action will be assigned to Buyer at Closing by Seller's execution
of the Assignment. Litigation Matters. There is currently pending before the
United States Court of Appeals for the Second Circuit, on appeal from the United
States Bankruptcy Court and the United States District Court, an action by
Seller seeking reimbursement for taxes paid by Seller in connection with the
Operating Leases and it is hereby agreed that any amounts owing to Omega as a
result of such action will be assigned to Buyer at Closing by Seller's execution
of the Assignment.
16. Brokerage. Each party represents and warrants
to the other that it has dealt with no broker, finder or other intermediary
in connection with this sale. Each party agrees to indemnify, defend and
hold harmless the other from and against all claims, demands, causes of action,
loss, damages, liabilities, costs and expenses (including without
limitation reasonable attorneys' fees and court costs) arising from any
claims for commissions made by any broker, finder or other intermediary,
claiming to have dealt with such party.
17. No Other Representations. Buyer acknowledges that neither Seller nor
anyone acting, or purporting to act, on behalf of Seller, has, except as
expressly set forth in this Agreement, made any representation or warranty with
respect to the Property and that, except for such representations and warranties
set forth in this Agreement, Seller shall convey and transfer the Property to
Buyer and Buyer shall accept the Property from Seller in an "as is" "where is"
condition.
18. Assignability. Buyer shall have the right at Buyer's sole
discretion to assign this Agreement and its rights hereunder to any affiliate of
Buyer, or with Seller's consent (not to be unreasonably withheld) to a third
party; and any assignee of Buyer shall be entitled to exercise all of the rights
and powers of Buyer hereunder; provided, however, as a condition to the
effectiveness of any such assignment, such assignee shall assume the obligations
of Buyer hereunder and no such assignment or assumption shall have the effect of
relieving Buyer from its obligations or liability hereunder.
19. FIRPTA.
(1) Parties Who Are Not Foreign. Section 1445 of the
Internal Revenue Code of 1986, as amended (the "Code") provides that a
transferee of a United States real property interest must withhold tax if the
transferor is a foreign person. To inform Buyer that withholding of tax is not
required upon the disposition by Seller of a United States real property
interest, Seller shall deliver to Buyer at Closing, a FIRPTA certificate in the
form of Exhibit H, failing which Buyer may withhold a portion of the Purchase
Price in accordance with the Code.
20. Notices.
(1) Written. All notices, demands, requests or other communications from
each party to the other required or permitted under the term of this Agreement
shall be in writing and, unless and until otherwise specified in a written
notice by the party to whom notice is intended to be given, shall be sent to the
parties at the following respective addresses:
if intended for Seller:
Omega Healthcare Investors, Inc.
000 Xxxxxxx Xxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
Attention: F. Xxxxx Xxxxxxx and Xxxxx Xxxxxx Xxxxxx
if intended for Buyer:
Xxxxx Healthsystem Philadelphia, Inc.
c/o Tenent Healthcare
Center Square-West Tower
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Fax No. (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx Xxxxxx, Esquire
with a copy to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax No. (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esquire
Notices may be given on behalf of any party by its legal counsel.
(2) Manner of Giving. Each such notice, demand, request or other
communication shall be given (i) against a written receipt of delivery, or (ii)
by registered or certified mail of the United States Postal Service, return
receipt requested, postage prepaid, or (iii) by a nationally recognized
overnight courier service for next business day delivery, or (iv) via telecopier
or facsimile transmission to the facsimile number listed above, provided,
however, that if such communication is given via telecopier or facsimile
transmission, an original counterpart of such communication shall concurrently
be sent in either the manner specified in clause (i) or (iii) above.
(3) Deemed Given. Each such notice, demand, request or other
communication shall be deemed to have been given on the day of consignment with
a nationally recognized overnight air courier service, on the day of delivery in
the case of hand delivery or on the third business day after deposit with the
United States Postal Service, as aforesaid and otherwise on actual receipt
thereof.
21. Miscellaneous.
(1) Captions. The captions in this Agreement are inserted for
convenience of reference only; they form no part of this Agreement and shall not
affect its interpretation.
(2) Not Divisible. The obligations of Buyer to buy and Seller to sell
the Real Property are not divisible and Buyer and Seller will be compelled to
close the transaction contemplated herein only if all of the conditions
provided for herein are satisfied as to all of the Real Property.
(3) Confidentiality. All discussions and any exchange of information
pursuant to this Agreement shall be considered strictly confidential,
except as such information may need to shared with directors, officers,
employees and advisors ("Representatives") of either Seller or Buyer on a "need
to know" basis. Buyer and Seller acknowledge that each is aware and each
agree to advise its Representatives that U.S. securities laws prohibit any
person who has material non-public information about a company from purchasing
or selling securities of such company or from communicating such information to
any other person. Except as required by law, without the prior written consent
of the other, Buyer and Seller each agree to direct its Representatives not to
disclose (a) the fact discussions have or are taking place between Buyer
and Seller, (b) any information or material exchanged between Buyer and
Seller, and (c) information developed in evaluating the transaction that is the
subject of this Agreement. Buyer and Seller hereby agree that all press releases
or public disclosures involving the subject matter of this Agreement shall
require the written approval of both Buyer and Seller.
(4) Successors and Assigns. Subject to the provisions of
Section 18, this Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, personal representatives, successors
and assigns.
(5) Entire Agreement; Governing Law. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof,
supersedes all prior or other negotiations, representations, understandings
and agreements of, by or among the parties, express or implied, oral or
written, which are fully merged herein. Any agreement hereafter made shall
be ineffective to change, modify, discharge or effect an abandonment of this
Agreement unless such agreement is in writing and signed by the party against
whom enforcement of such change, modification, discharge or abandonment
is sought. This Agreement shall be governed by and construed under the laws
of the Commonwealth of Pennsylvania.
(6) Provisions Separable. The provisions of this Agreement
are independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other provision may be invalid or unenforceable in whole or in part.
(7) Gender, etc. Words used in this Agreement, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
(8) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall be binding when one
or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected on this Agreement as the signatories.
The parties agree that facsimile signatures shall have the same legal effect as
original signatures affixed hereto.
(9) Exhibits. All exhibits attached to this Agreement are incorporated
by reference into and made a part of this Agreement as is fully set forth
herein.
(10) No Waiver. Neither the failure nor any delay on the part of either
party to this Agreement to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of any such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(11) Interpretation. No provision of this Agreement is to be
interpreted for or against either party because that party or that party's legal
representative or counsel drafted such provision.
IN WITNESS WHEREOF, intending to be legally bound, the parties
have executed this Agreement as a sealed instrument as of the day and year first
above written.
Witness: SELLER:
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BUYER
XXXXX HEALTHSYSTEM PHILADELPHIA, INC.
By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
LIST OF EXHIBITS
EXHIBIT A - GROUND LEASES
EXHIBIT B - OPERATING LEASES
EXHIBIT C - LEGAL DESCRIPTION OF REAL PROPERTY
EXHIBIT D - PERMITTED TITLE ENCUMBRANCES
EXHIBIT E - ASSIGNMENT AND ASSUMPTION OF GROUND LEASES AND OPERATING
LEASES
EXHIBIT F - XXXX OF SALE
EXHIBIT G - ESCROW AGREEMENTS
EXHIBIT H - FIRPTA AFFIDAVIT
