EXHIBIT 2.4
November 30, 1998
Xxxxxx X. Xxxxxxx, Xx., President
and Chief Executive Officer
ElderTrust
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxx, President
Genesis Health Ventures
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
Re: Purchase and Sale Agreement (the "Agreement") dated as of June
12, 1998, as amended, by and between ElderTrust Operating
Limited Partnership and Genesis Health Ventures, Inc.
(collectively, "Purchaser") and Cabot Park Limited
Partnership, et. al. (collectively, "Seller
Gentlemen:
This letter will confirm the agreement of Seller and Purchaser further
to amend the Agreement and the Amendment to Agreement also dated as of June 12,
1998, in the following respects, such amendment to become effective
simultaneously with the consummation of the closing of the three (3) MHFA
Facilities and Heritage at North Andover:
1. Heritage at the Falls.
(a) The Closing Date for Heritage at the Falls (the "Falls")
only shall be extended to June 30, 1999 at 10:00 a.m. at the offices of Xxxxxx,
XxXxxxxxx & Fish, LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
16th Floor Conference Center, unless otherwise mutually agreed in writing by the
parties.
(b) Seller acknowledges and consents to Purchaser's assignment
of its rights and obligations under the Agreement to Genesis Health Ventures,
Inc., a Pennsylvania corporation ("Assignee") or to any Affiliate or subsidiary
thereof, or to Genesis ElderCare Partnership of New England, Limited
Partnership. Upon Purchaser's acquisition of North Andover (as defined below)
and the three (3) MHFA facilities, Purchaser shall be released from any and all
obligations to Seller with respect to the Falls, except for those obligations,
if any, which expressly survive any termination or expiration of the Agreement.
(c) Assignee may purchase the Falls on an earlier date upon
twenty (20) days advance written notice to Seller. The parties shall use
reasonable efforts to coordinate the exact timing of the closing to attempt to
pay off the outstanding bonds on a Thursday.
(d) To secure Assignee's performance with respect to the
Falls: (i) Assignee simultaneously has deposited the sum of Eight Hundred
Thousand Dollars ($800,000.00) (the "Cash Deposit") with Xxxxxx, XxXxxxxxx &
Fish, LLP (the "Falls Escrow Agent"), which shall act as "Escrow Agent" with
respect to the Falls Facility pursuant to Section 24(m) of the Agreement, and
(ii) the agreed Management Agreement Termination Fees for the Falls (the "Falls
Management Termination Fees") as set forth on Exhibit A attached hereto shall
only be payable at the time of the purchase of the Falls by Assignee. If
Assignee defaults in its obligations to purchase under the Agreement with
respect to the Falls, the Cash Deposit shall be forfeited to Seller as
liquidated damages pursuant to Section 21(b) of the Agreement and the Falls
Management Termination Fees shall be void and of no effect. Notwithstanding the
foregoing in this Paragraph 1(d), if the sum of the Cash Deposit and the Falls
Management Termination Fees exceed One Million Dollars ($1,000,000.00), then the
maximum liquidated damages hereunder shall be One Million Dollars
($1,000,000.00) and Seller shall pay any excess amount to Assignee. The Falls
Escrow Agent agrees that at all times there shall remain no less than Fifty
Thousand Dollars ($50,000.00) in escrow as part of the Cash Deposit.
(e) Assignee and Seller agree that the purchase price for the
Falls Facility is $16,477,128.00, which is to be allocated as follows: (i)
$15,730,531.00 allocated to the real property, and (ii) $746,597 allocated to
the personal property.
(f) Upon Seller's written request to Assignee and the Falls
Escrow Agent, the Falls Escrow Agent shall pay to Seller from the Cash Deposit:
(1) up to Seventy-Five Thousand Dollars ($75,000.00) in the aggregate to defray
third party costs of this transaction incurred by Seller prior to the date
hereof which are allocable to the Falls (e.g., legal, accounting); (2) the sum
of Twenty-Five Thousand Dollars ($25,000.00) per month; and (3) additional
amounts in excess of Twenty-Five Thousand Dollars ($25,000.00) per month that
the Seller requires to eliminate any cash flow deficits as identified on the
monthly financial statement provided by the manager at the Falls Facility to
Seller or in a notice of default from the mortgage lender for the Falls
Facility. Each request which Seller makes to Escrow Agent shall state the amount
to be withdrawn, the account balance of the Cash Deposit (excluding interest)
and the revised purchase price resulting from such draw (and, in the case of
subparagraph 1(f)(3) above, shall also require applicable third party supporting
documentation). The Falls Escrow Agent may conclusively rely upon the financial
information and documentation submitted by Seller or said manager as aforesaid.
The foregoing amounts paid from the Cash Deposit shall be set off against the
purchase price for the Falls if closing occurs hereunder; if closing under the
Falls does not occur and Assignee is otherwise entitled to a refund of the Cash
Deposit, then the Falls Escrow Agent shall immediately refund to Assignee the
portion of the Cash Deposit in its possession, and Seller shall immediately
refund to Assignee any drawdowns on the Cash Deposit. If Seller fails or refuses
to refund such amounts to Assignee, then Assignee shall be entitled to seek
redress against National Development Associates of New England Limited
Partnership for the entire unpaid amount pursuant to the terms and provisions of
a certain guaranty in the form attached hereto as Exhibit B (the "NDNE
Guaranty").
(g) Except as provided in Section 1(h) below, Assignee shall
not have the right to purchase the Falls unless, on or before the Closing Date,
ET Sub-Heritage Andover, L.L.C. pays in full all of its obligations under the
North Andover Purchase Money Promissory Note described in Section 2 below.
(h) If, prior to the Closing Date, there is a monetary default
or other material default under the mortgage loan documentation affecting the
Falls Facility attributable to reasons other than Seller's own actions or
omissions, Seller may, by written notice to Assignee (the "Acceleration
Notice"), require Assignee to accelerate the Closing Date hereunder and to
purchase the Falls within sixty (60) days of the Acceleration Notice, in which
case the provisions of Section 1(g) above shall be inapplicable to this
transaction as a condition precedent to such closing. If Assignee thereafter
fails to purchase the Falls within the foregoing sixty (60) day period after
receipt of the Acceleration Notice, then Assignee's purchase right hereunder
shall immediately become null and void, and so long as the conditions precedent
to closing described in Section 1(l) below are satisfied, then the entire Cash
Deposit shall be disbursed to Seller, Seller shall be relieved of its obligation
to pay the Falls Management Termination Fees and neither party shall have any
further obligation to the other with respect to the purchase and sale of the
Falls Facility, unless the parties otherwise agree in writing to an extension of
the foregoing sixty (60) day period for closing.
(i) If Assignee is adjudicated as bankrupt or if it files a
voluntary petition for relief under the U.S. Bankruptcy Code, then Seller may
require Assignee to purchase the Falls within thirty (30) days of notice from
Seller. If Assignee fails to purchase, then Seller may terminate this Agreement,
in which case Seller shall retain the Cash Deposit and be released of any
obligation to pay the Management Termination Fees for the Falls, collectively as
the liquidated and agreed-upon damages, and neither Assignee nor Seller shall
have any further liability to the other under the Agreement.
(j) Notwithstanding Sections 1(b)(ii) and 24(k) of the
Agreement, until Assignee purchases the Falls, Seller may continue to operate
the same and to use the name "Heritage at the Falls" in all marketing and
related activities relating to the Falls.
(k) Seller and Assignee, in anticipation of a closing
scheduled for this date, acknowledge that, as of the date hereof, they have
agreed upon the form of the conveyancing documents, including the Amended and
Restated Reciprocal Easement Agreement, a copy of which is attached hereto as
Exhibit C.
(l) Assignee acknowledges that the remaining conditions
precedent to closing which will need to be satisfied contemporaneously with the
closing of the Falls Facility will be limited to the following: (i) the delivery
of good and marketable and insurable title as provided in Section 5 of the
Agreement, provided that Assignee acknowledges that it is satisfied with the
current status of title as negotiated by Purchaser during the term of the
Agreement, (ii) the satisfaction of those matters set forth in Sections
8(b)(ii), (iv), (vi) and (vii) of the Agreement, and (iii) Seller's compliance
with its continuing obligations under the Agreement, including, without
limitation, the delivery of closing documents as set forth in the Agreement.
(m) The provisions of this Agreement shall be paramount to
those of the Termination Fee Agreement (as defined in Section 2(a) below) and
shall govern.
2. Heritage at North Andover.
(a) Seller acknowledges that attached hereto as Exhibit A-1 is
a true, correct and complete copy of that certain letter agreement dated
December 11, 1996, as amended by Amendment to Agreement dated June 12, 1998,
between The Multicare Companies, Inc., ADS/Multicare, Inc. and NDNE/ADS entities
(as identified in Exhibit A-1) (the "Termination Fee Agreement") with regard to
the payment of Management Agreement Termination Fees.
(b) Purchaser will acquire Heritage at North Andover ("North
Andover") simultaneously with its acquisition of the MHFA facilities; provided,
however, that the purchase price of $12,407,997.00 required by the Agreement
(subject to adjustments) shall be paid $9,407,997.00 at closing and
$3,000,000.00 by the execution and delivery this date of five (5) Purchase Money
Promissory Notes (collectively, the "PMP Notes") from ET Sub-Heritage Andover,
L.L.C. to the parties and in the amounts listed on Exhibit D in the form
attached hereto as Exhibit E, and the execution and delivery this date of the
Guaranty of Payment from ElderTrust Operating Limited Partnership to the
foregoing parties in the form attached hereto as Exhibit F. North Andover
Assisted Living Limited Partnership (ANAALLP@) shall provide at closing such
additional funds as are required to discharge the existing mortgage liens on
North Andover (the "Shortfall"). If NAALLP or its partners subsequently borrow
funds to reimburse itself or themselves for having funded the Shortfall, the
Purchaser shall execute an acknowledgment of a collateral pledge of one or more
of the PMP Notes and such other documents as may reasonably be required to
evidence such acknowledgment.
(c) (i) The parties hereto agree that: (A) the Management
Agreement Termination Fees for North Andover under Section 4(c) of the
Termination Fee Agreement shall be fixed at $299,245.00 ("North Andover
Management Termination Fees"), (B) shall only be payable by Seller if, as and
when the PMP Notes are paid in full, and (C) with respect to the North Andover
Management Termination Fees, the provisions of this Agreement shall be paramount
to those of the Termination Fee Agreement and shall govern. If the maker and/or
guarantor default in the payment of the PMP Notes, the North Andover Management
Termination Fees shall be void and of no effect. Seller represents that the
North Andover Seller's obligation to pay the North Andover Management
Termination Fees is not and shall not be subject to any condition or defense
other than payment of the PMP Notes.
(ii) Contemporaneously with the closing of
North Andover by ET Sub-Heritage Andover, L.L.C.,
Purchaser shall pay to The Multicare Companies, Inc., the manager of North
Andover, an amount equal to Two Hundred Ninety-Nine Thousand Two Hundred
Forty-Five Dollars ($299,245.00), and the manager of North Andover shall assign
to Purchaser all of its right, title and interest in and to the North Andover
Management Termination Fees.
3. References to Seller. With respect to any matters addressed herein
concerning the Falls, Seller shall refer only to the present owner thereof,
Heritage at the Falls Assisted Living Limited Partnership. With respect to any
matters addressed herein concerning North Andover, Seller shall refer only to
the present owner thereof, North Andover Assisted Living Limited Partnership.
4. Remainder of Agreement. In all other respects, the Agreement remains
in full force and effect and unmodified. This Amendment is intended to take
effect as a sealed instrument.
Very truly yours,
Xxxxxx X. Xxxxxxx, Esquire
Counsel for the Seller and
for the NDNE/ADS Entities
NDNE Assisted Living, Inc.,
as General Partner of the
Seller Partnerships
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, President
ADS Assisted Living, Inc.
ADS North Andover Assisted
Living, Inc., as General
Partner of the Seller Partnerships
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
duly authorized
The foregoing amendment is confirmed and agreed:
ElderTrust Operating Limited Partnership
By: ElderTrust
By: /s/ D. Xxx XxXxxxxx, Xx.
-------------------------------
Name:
Title: Senior Vice President and Chief Financial Officer
Genesis Health Ventures, Inc.
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------
Name:
Title: Vice President
ADS Senior Housing, Inc.
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------
Name:
Title: Vice President
ADS/Multicare, Inc.
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------
Name:
Title: Vice President
The Multicare Companies, Inc.
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------
Name:
Title: Vice President
ACKNOWLEDGED AND AGREED:
Xxxxxx, XxXxxxxxx & Fish, LLP,
as the Falls Escrow Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
