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EXHIBIT 10.44
PURCHASE AGREEMENT
by and between
NHP INCORPORATED, a Delaware corporation
(as "Purchaser")
and
PROPERTY RESOURCES CORPORATION,
a New York corporation
(as "Seller")
November 12, 1996
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PURCHASE AGREEMENT
Table of Contents
ARTICLE I
DEFINITIONS 1
ARTICLE II
PURCHASE AND SALE OF INTERESTS 8
2.1 Purchase, Sale and Assumption of Assets and
Liabilities 8
2.2 Employment of Certain Seller Employees 9
2.3 Purchase Price 13
2.4 Closing 13
2.5 Post-Closing Adjustments 14
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY 14
3.1 Organization; Standing and Power 14
3.2 Capitalization 15
3.3 Authority; Noncontravention 15
3.4 Approvals 15
3.5 Litigation 16
3.6 Absence of Liabilities 16
3.7 Material Contracts and Obligations 16
3.8 Compliance 17
3.9 Licenses, Permits and Authorizations 17
3.10 Environmental Matters 17
3.11 Appropriateness of Payments 17
3.12 Powers of Attorney 18
3.13 Banking 18
3.14 Disclosures 18
3.15 Social Services Payments 18
3.16 Physical Inspection Reports 18
3.17 Litigation or Insurance Claims 18
ARTICLE IV
REPRESENTATIONS AND WARRANTIESCONCERNING MANAGEMENT RIGHTS 18
4.1 Management Documents 18
4.2 Termination of the Management Agreements 19
4.3 The Company as Property Manager 19
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4.4 True and Complete Agreements 19
ARTICLE V
REPRESENTATIONS AND WARRANTIESCONCERNING SELLER 19
5.1 Delivery of Good Title; Condition of Purchased Assets 19
5.2 Authority; Noncontravention 20
5.3 Approvals 20
5.4 Compliance 21
5.5 Litigation 21
5.6 Taxes 21
5.7 Financial Statements 21
5.8 Organization and Standing 21
5.9 Property 22
5.10 Solvency 22
5.11 Lease 22
ARTICLE VI
REPRESENTATIONS AND WARRANTIESCONCERNING PURCHASER 22
6.1 Organization; Standing and Power 22
6.2 Authority; Noncontravention 23
6.3 Litigation 23
6.4 SEC Reports 23
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF PURCHASER 24
7.1 Accuracy of Representations and Warranties 24
7.2 Restraints or Prohibitions 24
7.3 Compliance with Covenants 24
7.4 Approvals 24
7.5 Litigation 24
7.6 No Material Adverse Change 24
7.7 Opinion of Counsel 25
7.8 Certificates and Documents 25
7.9 Additional Agreements 25
7.10 Issuance of REOL Economic Interest 26
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF SELLER 26
8.1 Accuracy of Representations and Warranties 26
8.2 Restraints or Prohibitions 26
8.3 Compliance with Covenants 27
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8.4 Approvals 27
8.5 Litigation 27
8.6 Opinion of Counsel 27
8.7 Certificates and Documents 27
8.8 Additional Agreements 28
8.9 SCHEDULEs 28
ARTICLE IX
COVENANTS OF SELLER AND THE COMPANY 28
9.1 Inspection 28
9.2 Conduct of Business Pending the Closing 28
9.3 Approvals 29
9.4 Competing Offers; Merger or Liquidation 29
ARTICLE X
OTHER COVENANTS AND INDEMNITIES 29
10.1 Reasonable Efforts and Certain Obligations 29
10.2 Seller as General Partner 30
10.3 Information 30
10.4 Deferred Payment 30
10.5 Consistent Reporting 30
ARTICLE XI
REMEDIES FOR BREACHES OF THIS AGREEMENT 30
11.1 Investigations; Survival of Representations and
Warranties and Covenants 30
11.2 Indemnification 31
11.3 Certain Indemnification Matters 32
11.4 Defense 33
11.5 Remedies 34
11.6 Equitable Relief 34
11.7 Recovery 34
11.8 Offset 34
ARTICLE XII
TERMINATION, AMENDMENT AND WAIVER 35
12.1 Termination 35
12.2 Effect of Termination 35
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ARTICLE XIII
MISCELLANEOUS 36
13.1 Expenses 36
13.2 Successors and Assigns 36
13.3 Notices 36
13.4 Brokers 37
13.5 Entire Agreement 37
13.6 Amendments and Waivers 37
13.7 No Third Party Beneficiaries 38
13.8 Counterparts 38
13.9 Headings 38
13.10 Severability 38
13.11 Governing Law 38
13.12 Arbitration 38
13.13 Recitals, SCHEDULEs and Annexes 39
13.14 Construction 39
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PURCHASE AGREEMENT THIS PURCHASE AGREEMENT
(this "Agreement") is made and entered into as of November 12, 1996, by and
between NHP Incorporated, a Delaware corporation (the "Purchaser"), and Property
Resources Corporation, a New York corporation (the "Seller").
RECITALS
WHEREAS, Seller and its affiliates are the owners of one hundred percent
(100%) of the total outstanding membership interests in NHP/PRC Management
Company LLC, a Delaware limited liability company (the "Company"), which
operates pursuant to that certain Operating Agreement dated November 6, 1996;
and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, (a) certain membership interests in the Company
representing fifteen percent (15%) of the total outstanding membership interests
in the Company (the "Interests"), and (b) certain "Purchased Assets"
(hereinafter defined) relating to the business to be conducted by the Company,
in accordance with the terms more particularly set forth in this Agreement; and
WHEREAS, the parties hereto believe that the transactions contemplated
hereby will provide mutual benefits to both Purchaser and Seller.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in and for all purposes of this Agreement, unless otherwise
indicated, each of the following terms shall have the respective meanings set
forth below.
"Affiliate" or "Affiliates" as the case may be shall mean with respect to a
Person, any other Person that: (i) directly or indirectly controls or has the
power to control the Person; (ii) is directly or indirectly controlled by the
Person; (iii) is directly or indirectly controlled by a third party or parties
that also controls or has the power to control the Person; or (iv) is an
Immediate Family Member. For the purposes of this definition, the term
"control" and its variations shall mean the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or by contract
or otherwise. The parties hereto acknowledge and agree that Purchaser and
Seller shall not be deemed to be Affiliates of one another.
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"Amendment of Management Agreement" shall mean the amendment to the
Management Agreements executed on or prior to the Closing Date.
"Ancillary Agreements" shall mean the "Management Documents" (hereinafter
defined), the Assignment and Assumption Agreement by and between Seller and
Purchaser and the Equipment Sharing Agreement by and between Seller and
Purchaser.
"Approvals" shall mean any approvals, authorizations, qualifications,
designations, declarations, consents, licenses, franchises, orders and other
permits of, notices to, registrations or filings with, or waivers from, legal,
judicial, governmental, quasi-governmental or regulatory authorities, agencies
or other federal, state or local, domestic or foreign governmental entity or any
other Person.
"Assumed Liabilities" means all Liabilities relating to the Business, of
every kind and nature, whether known, unknown, contingent, absolute, determined,
indeterminable or otherwise arising after the Closing Date in connection with
(a) the performance after the Closing Date of all contracts, agreements, and
commitments which are in the aggregate less than One Thousand Dollars
($1,000.00) and relating primarily to the Business as of the Closing Date; (b)
the performance after the Closing Date of that certain lease of real property,
dated as of August 1, 1993, between ▇▇▇▇▇ ▇▇▇▇▇▇▇ Houses II Associates and PRC
Management Corporation (the "Lease"); (c) all employee Liability, employee
benefits, compensation and severance of the Transferred Employees, specifically
set forth in Section 2.2 hereof; and (d) as set forth in SCHEDULE A hereto.
"Business" means property management business relating to the management of
the Properties and the business as manager under the "Management Agreements"
(hereinafter defined).
"Business Day" shall mean any day of the week other than a Saturday,
Sunday, a federal holiday or any other day on which banking institutions in the
State of New York or the Commonwealth of Virginia are authorized by law or by
executive order to be closed.
"Certificate of Principals" shall have the meaning set forth in Section
2.4.
"Closing" shall have the meaning set forth in Section 2.4.
"Closing Date" shall have the meaning set forth in Section 2.4.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall mean NHP/PRC Management Company LLC, a Delaware limited
liability company.
"Contingent Consideration" shall have the meaning set forth in Section 2.5.
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"Economic Interest" shall have the meaning set forth in Section 7.10.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, judgments,
notices of noncompliance or violation, or to the Knowledge of Seller
investigations or proceedings relating in any way to any Environmental Law or
any permit issued, or any approval given, under any such Environmental Law
("Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any Legal Requirements now 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 environment, health, safety or Hazardous Materials, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended; the Resource Conservation and Recovery Act of
1976, as amended; the Occupational Safety and Health Act, as amended; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.;
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air
Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C.
Section 3803 et seq.; the Oil Pollution Act of 1990, PUB. Law 101-380 and any
state and local or foreign counterparts or equivalents.
"Excluded Assets" refers to Seller's assets other than the Purchased
Assets, including, collectively (a) any cash or cash equivalents of Seller
(including for this purpose all collected funds and items in the process of
collection received in bank accounts associated with Seller through 11:59 p.m.,
Eastern Time, on the Closing Date, but not including cash held in imprest ▇▇▇▇▇
cash accounts of the Business), (b) any rights of Seller or any of its
Affiliates to any Tax refund with respect to periods prior to the Closing Date,
(c) any assets of Seller in any employee benefit plan maintained by Seller or
any of its Affiliates, (d) any property, casualty, workers' compensation or
other insurance policy or related insurance services contract relating to Seller
or any of its Affiliates and any rights of Seller or any of its Affiliates under
such insurance policy or contract, (e) any rights of Seller under this Agreement
or under any other agreement between Seller and Purchaser, (f) any assets of
Seller related primarily to a business other than the Business, (g) all
centralized management information systems, accounting systems and corporate
staff functions, (h) any books, records and information related directly to any
of the Excluded Assets or Excluded Liabilities, and (i) all past, present or
future claims, choses in action and rights or actions by Seller against third
parties directly relating to any Excluded Asset or Excluded Liability.
"Excluded Liabilities" refers to, collectively, all obligations and
Liabilities of Seller and its Affiliates, other than the Assumed Liabilities.
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"Expenses" shall mean the fees, costs and other expenses, including
attorney's, auditor's, broker's, or finder's fees and commissions, incurred by a
party hereto in connection with the transactions contemplated hereby.
"Fair Market Value" shall mean, on any date specified herein the price
obtained by taking the arithmetic mean over a period of twenty (20) consecutive
trading days of the closing price on each such trading day, or if no sales took
place during a trading day, the average of the closing bid and closing asked
prices during such trading day, ending the second trading day prior to such
date: (a) if the NHP Shares are listed or admitted to trading on any national
securities exchange, as officially reported on all national securities exchanges
on which such class of securities are then listed or admitted to trading, (b) if
the NHP Shares are not then listed or admitted to trading on any national
securities exchange, as shown by the NASDAQ National Market System, or (c) if
the NHP Shares are not then quoted in such system, as published by the National
Quotation Bureau, Incorporated or any similar successor organization, then as
reported by any member firm of the New York Stock Exchange selected by
Purchaser. If the NHP Shares are not then listed or admitted to trading on any
national securities exchange and if no closing bid and asked prices thereof are
then so quoted or published in the over-the-counter market, "Fair Market Value"
shall mean the fair value per share of NHP Shares, as determined on a fully
diluted basis in good faith by an independent securities brokerage firm or
Standard & Poor's Corporation (as selected in good faith by the Board of
Directors of Purchaser), as of a date which is fifteen (15) days preceding the
date as of which the determination is to be made and in such an event, any and
all costs of such valuation shall be equally shared by Seller and Purchaser.
"GAAP" shall mean generally accepted accounting principles, consistently
applied.
"HAP Contracts" shall mean the HUD Housing Assistance Payments contracts by
and between HUD and the Partnerships, pertaining to each Property.
"Hazardous Material" shall mean (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
electric fluid containing levels of polychlorinated biphenyls and radon gas; (b)
any chemicals, materials or substances defined as or included in the definition
of "hazardous substances," "hazardous waste," "hazardous materials," "extremely
hazardous waste," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants," or "pollutants," or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
governmental or regulatory entity or which poses a threat to health or safety.
"HUD" shall mean the United States Department of Housing and Urban
Development or any successor organization.
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"Immediate Family" shall mean a Person's immediate family which shall
exclusively include the Person's estate, spouse, children (including natural,
adopted and stepchildren) and grandchildren or trust exclusively for the benefit
of any of the foregoing.
"Indefinite Term Warranties" shall have the meaning set forth in Section
11.1.
"Indemnified Purchasers" shall have the meaning set forth in Section
11.2(a).
"Indemnified Sellers" shall have the meaning set forth in Section 11.2(b).
"Interests" shall mean fifteen percent (15%) of the total outstanding
membership interests in the Company.
"Knowledge" shall mean the actual knowledge of the Persons set forth on
SCHEDULE B, after Seller's inquiry of such Persons.
"Lease" shall have the meaning set forth in the definition of Assumed
Liability.
"Legal Requirements" shall mean any federal, state, county, local or
foreign statute, law, rule, regulation, ordinance, code, handbook, written
policy, rule of common law, order, decree, judgment or other legal, judicial,
regulatory, governmental or quasi-governmental requirement (including, by way of
example only, any Environmental Law).
"Liabilities" shall mean any liabilities or obligations, direct or
indirect, whether accrued, absolute, contingent or otherwise; Legal Requirements
of general applicability shall not be deemed to be "Liabilities".
"Lien" or "Liens" shall mean all liens of any type whatsoever (including,
but not limited to, judgment and mechanics' liens, regardless of whether
liquidated), mortgages, assessments, security interests, easements, claims,
pledges, trusts (constructive or other), deeds of trust, options or other
charges, encumbrances or restrictions; Legal Requirements of general
applicability which do not arise out of a breach or failure to perform any
obligations, shall not be deemed to be "Liens".
"Management Agreement" or "Management Agreements" shall mean all of those
certain management agreements, as amended from time to time, entered into by
Seller and each of the Partnerships, and subsequently assigned to the Company,
in connection with the performance of Property management. The Management
Agreements as in effect on the date of this Agreement, including all fees
received or entitled to be received and other benefits derived therefrom,
including, without limitation, all social services fees, management fees and
bookkeeping fees, are specifically described on SCHEDULE C hereto, which is
incorporated herein by this reference.
"Management Documents" shall have the meaning set forth in Section 4.1.
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"Management Period" shall mean with respect to any Property, the period
which commences after eighteen (18) months after the expiration date of the
related HAP Contracts and ends on the fifteen (15) year anniversary of the
Closing Date.
"Management Rights" shall mean the right to receive management fees, income
and other benefits arising from or connected to: (a) the Management Agreements;
and (b) the managing of any Properties as set forth in the Management Continuity
Agreement.
"Material Adverse Effect" shall mean with respect to any Person, any loss,
damage or other circumstance, occurrence, breach of representation or warranty
or other event that could reasonably be expected to have a material adverse
effect on the business, property, assets, liabilities or condition (financial or
otherwise) of such Person, individually or taken as a whole.
"NHP Shares" shall have the meaning set forth in Section 2.3(b).
"Operating Agreement" shall mean the Amended and Restated Operating
Agreement of the Company to be executed on the Closing Date substantially in the
form of SCHEDULE D.
"Partnership" or "Partnerships" shall mean the New York limited
partnerships which own or control the Properties, as set forth in SCHEDULE E
hereto, which is incorporated herein by this reference.
"Permitted Liabilities" shall have the meaning set forth in Section 3.6.
"Permitted Lien(s)" shall mean with respect to any asset (i) any
imperfection of title with respect to an asset which does not materially
interfere with the present occupancy or use of such asset and the continuation
of the present occupancy or use of such asset, and if not reflected on the title
reports attached hereto as SCHEDULE 5.9, does not materially impair the value of
such asset and shall not cause a material breach of any mortgage on or security
interest in the Property; (ii) such covenants, conditions, restrictions,
easements, encroachments or encumbrances that are not created pursuant to
mortgages or other financing or security documents, and any other state of
facts, which do not, individually or in the aggregate, materially interfere with
the present occupancy or use of such asset, and if not reflected on the title
reports attached hereto as SCHEDULE 5.9 do not materially impair the value of
such asset; (iii) mechanic's, materialmen's or similar liens with respect to
amounts not yet due and payable or which are being contested in good faith
through appropriate proceedings, and if in excess of Five Thousand Dollars
($5,000.00), and not reflected on SCHEDULE 5.9, as to any one Property in the
aggregate, have been bonded or for which there is an adequate cash reserve in
accordance with GAAP which liens in excess of Five Thousand Dollars ($5,000.00)
are set forth on SCHEDULE F attached hereto and incorporated herein; (iv) liens
for Taxes not yet due and payable or which are being contested in good faith
through appropriate proceedings, for which there is an adequate cash reserve
established therefore in accordance with GAAP, such contested claims being set
forth on SCHEDULE F attached hereto and incorporated herein; (v) liens on the
subject leased
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property securing rental payments under capital lease arrangements, which are
not in default; and (vi) the Management Documents affecting such asset.
"Permitted Material" means Hazardous Material used or Released in material
compliance with Environmental Laws in the ordinary course of the operations of
the Partnerships' business, including, without limitation, fuel oil and cleaning
solvents, and Hazardous Materials included in the improvements located on the
Properties, including, without limitation, any currently existing asbestos, lead
paint, and urea formaldehyde foam insulation.
"Person" shall mean all natural persons, corporations, business trusts,
associations, companies, partnerships, joint ventures, organizations,
governmental entities and any other entities.
"Plan" shall have the meaning set forth in Section 2.2(b)(3)(i).
"Property" or "Properties" shall mean all of the properties owned or
controlled by the Partnerships and identified on SCHEDULE E hereto, which is
incorporated herein by this reference.
"Purchase Price" shall mean ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Dollars (US$1,350,000), to be paid by Purchaser to Seller as
consideration for the purchase of the Interests and the Purchased Assets in the
manner set forth herein.
"Purchased Assets" shall mean the assets owned or held by Seller and used
in the conduct of the management of the Properties pursuant to the Management
Agreements, as more specifically set forth in SCHEDULE G hereto, which is
incorporated herein by this reference.
"Purchaser" shall mean NHP Incorporated, a Delaware corporation.
"Release" shall mean disposing, transporting, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
seeping, placing, purging and the like, into or upon any land or water or air,
or otherwise entering into the environment.
"REOL" shall mean Real Estate On Line, a New York limited liability
company, which is a computer property listing service.
"Representations and Warranties" shall mean the representations and
warranties set forth in Articles III, IV, V and VI hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall mean Property Resources Corporation, a New York corporation.
"Subcontract Agreement" or "Subcontract Agreements" shall have the meaning
set forth in Section 2.4.
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"Tax Returns" shall mean any returns, declarations, reports, claims for
refunds, or information returns or statements relating to Taxes by any
applicable tax jurisdiction (including any schedules, attachments or
amendments).
"Tax" or "Taxes" shall mean any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Section 59A), customs, duties, capital Interests, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of any kind whatsoever
imposed on the Company or for which the Company is liable, including any
interest, penalty, or addition thereto, whether disputed or not.
"Transferred Employee" shall have the meaning set forth in Section 2.2(a).
ARTICLE II
PURCHASE AND SALE OF INTERESTS
2.1 PURCHASE, SALE AND ASSUMPTION OF ASSETS AND LIABILITIES.
(a) On the terms and subject to the conditions set forth in
this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and
deliver to Purchaser, and Purchaser or its designee shall purchase from Seller,
all of Seller's right, title and interest in and to the Interests, free and
clear of all Liens and Liabilities, other than (i) Permitted Liens, (ii) Assumed
Liabilities, (iii) Liabilities arising under the Operating Agreement, and (iv)
any restrictions on future transfers of a general nature arising under federal
and state securities laws or in the Operating Agreement.
(b) On the terms and subject to the conditions set forth in
this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and
deliver to Purchaser, and Purchaser or its designee shall purchase from Seller,
all of Seller's right, title and interest in and to the Purchased Assets, free
and clear of all Liens and Liabilities other than Permitted Liens and Assumed
Liabilities, and excluding the Excluded Assets.
(c) On the terms and subject to the conditions set forth in
this Agreement, at the Closing, Purchaser will assume and become responsible for
all of the Assumed Liabilities, and shall not assume nor be responsible for the
Excluded Liabilities.
(d) Except as specifically set forth in Sections 2.1 and 2.2,
Purchaser neither assumes nor shall be deemed to assume, under this Agreement or
otherwise by reason of the transactions contemplated hereby, any liabilities,
obligations or commitment of Seller of any nature whatsoever. Without limiting
the generality of the foregoing, and without limiting the obligations of
Purchaser under Sections 2.1(c) and 2.2, Purchaser shall neither assume nor be
liable for any liability or obligation of Seller arising out of any collective
bargaining agreement, insurance,
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pension, retirement, deferred compensation, incentive bonus or profit sharing or
employee benefit plan or trust, or any litigation, proceeding or claim by any
Person arising out of the management of any of the Properties or the performance
or failure to perform any of the Management Agreements on or before the Closing
Date, whether or not such litigation, proceeding or claim is pending, threatened
or asserted before, on or after the Closing Date.
2.2 EMPLOYMENT OF CERTAIN SELLER EMPLOYEES.
(a) Purchaser shall offer to hire, effective as of the Closing
Date, the employees of Seller specifically set forth on SCHEDULE 2.2, hereto
incorporated herein by reference (those Seller employees accepting such
employment offer shall be known as the TRANSFERRED EMPLOYEES), provided,
however, that Purchaser may, IN ITS SOLE DISCRETION DELETE NAMES OF EMPLOYEES OF
SELLER FROM SCHEDULE 2.2 from and after the execution of this Agreement, but
within five (5) Business Days after the Closing Date.
(b) Terms of employment offered by Purchaser are as follows:
(1) Except as expressly provided in this Section 2.2,
Purchaser shall not assume any obligations or liabilities associated with any
Seller employee benefit plan, and the terms of the Transferred Employees'
employment shall be upon the terms and conditions as Purchaser, in its sole
discretion, shall determine. Upon request of Purchaser, Seller shall provide
Purchaser reasonable access to and copies of data (including computer data)
regarding ages, dates of hire, compensation, job description, employee
evaluation and accrued sick leave of the Transferred Employees and, subject to
applicable law, such other personnel records as Purchaser may reasonably
request. Purchaser shall be responsible for any obligations or Liabilities to
the Transferred Employees which may accrue under the Worker Adjustment
Retraining Notification Act from and after the Closing Date, to the extent that
a new employer such as Purchaser would customarily be obligated or Liable at
law.
(2) Transferred Employees' current salaries shall
continue at their present rate as set forth on SCHEDULE 2.2 and will be reviewed
for any adjustments after the Closing Date in accordance with Purchaser's
customary practices.
(3) Benefits eligibility shall be as follows:
(i) Purchaser shall recognize a Transferred
Employee's original hire date with Seller for purposes of length of service
eligibility for all benefits with the exception of participation and vesting in
Purchaser's 401(k) retirement savings plan (the PLAN).
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(ii) Except as provided in subsection (i)
above, Transferred Employees shall become eligible for benefits upon
commencement of employment with Purchaser in accordance with the terms of the
applicable benefit plans maintained by Purchaser.
(4) The following health and life insurance benefits
shall be offered to the Transferred Employees effective as of the Closing Date:
(i) All Transferred Employees who currently
have health insurance with Seller will be immediately covered by Purchaser's
health insurance plan insured by Northwestern National Life Insurance Company.
Any Transferred Employee who has satisfied Seller's health insurance plan's pre-
existing condition clause will be deemed to have satisfied Purchaser's health
insurance plan's pre-existing condition clause.
(ii) Open enrollment will be in effect upon
commencement of a Transferred Employee's employment with Purchaser. Therefore,
a Transferred Employee may change from individual to dependent coverage without
proof of good health of the dependents, and a Transferred Employee who was
previously eligible, but previously declined, health insurance coverage may
enroll without proof of good health; provided that with respect to the
foregoing, Purchaser's pre-existing condition clauses will be in effect.
(iii) Life insurance in an amount equal to twice
a Transferred Employee's annual salary will become effective simultaneously with
health insurance effectiveness. Purchaser shall pay the total cost of this
benefit.
(5) Vacation Leave
(i) Transferred Employees shall not receive
credit for accrued but unused vacation leave on the Closing Date under
Purchaser's vacation policy. Transferred Employees shall accrue 10 days
vacation leave each year through 4 years of service (as calculated pursuant to
3(i)), and, thereafter, 15 days each year with a maximum of 160 hours carryover
annually.
(ii) Vacation leave shall not be available for
use until the completion of 6 months of service, as calculated pursuant to 3(i),
to include service with Seller.
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(iii) Vacation leave shall not vest until the
completion of one year of service. Therefore, any used vacation time during a
Transferred Employee's first year of employment shall be deducted from such
Transferred Employee's final paycheck if employment ends prior to the completion
of one year of service with Purchaser.
(6) Sick Leave
(i) Transferred Employees shall receive credit
for accrued but unused sick leave as of the Closing Date, up to a maximum of 120
hours, under Purchaser's sick leave policy.
(ii) Transferred Employees shall be eligible to
accrue five (5) sick leave days each year with unlimited carryover.
(iii) Sick leave shall not be available for use
until six (6) months of service with Purchaser are completed as calculated
pursuant to 3(i), to include service with Seller.
(7) The Plan
(i) Each Transferred Employee's hire date with
Purchaser shall be used to determine such Transferred Employee's eligibility,
after one year of service with Purchaser, to participate in the Plan.
(ii) Each Transferred Employee's hire date with
Purchaser shall be used to determine vesting in Purchaser's annual discretionary
contribution, which vesting is presently twenty percent (20%) for each year of
service to one hundred percent (100%) vesting in five (5) years.
(8) Purchaser presently offers participation, and will
offer participation to Transferred Employees, in an Employee Assistance Program
which provides confidential help, by phone or in-person counseling sessions,
with personal, family or work concerns to employees and dependents.
(9) All full time Transferred Employees shall be
eligible to participate in Purchaser's FLEX-FUND program which allows
Transferred Employees, under certain circumstances, to pay with pre-tax dollars
for the care of their dependent children (up to age 13) and/or dependent adults
for whom any such Transferred Employee is fully responsible.
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(10) All Transferred Employees shall be eligible to
join the Washington Telephone Federal Credit Union, a full service non-profit
financial institution.
(c) Notwithstanding anything to the contrary contained
herein, Purchaser acknowledges and agrees that Purchaser shall offer employment
to Seller's social services director, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, at a salary equal
to forty-percent (40%) of such employee's current salary of Thirty Thousand
Eight Hundred Ninety Dollars ($30,890.00), which amount is equal to compensation
for such employee for two (2) days of service per week. Notwithstanding such
employee's part-time status, such employee shall be entitled to the same rights
and benefits as a full-time employee under Section 2.2(b)(4) hereof.
(d) Except as otherwise set forth in this Agreement, neither
Purchaser, nor any of its Affiliates shall assume nor have any direct or
indirect obligation or Liability of any nature, whether matured or unmatured,
accrued or contingent, due or to become due, or otherwise, to any Transferred
Employee or other present or former employee of Seller and its Affiliates or to
any dependent, survivor or beneficiary thereof, arising out of or relating to
such person's employment with Seller or the termination of such employment, and
neither Purchaser nor its Affiliates shall assume nor have any direct or
indirect obligation or Liability of any nature, whether matured or unmatured,
accrued or contingent, due or to become due, or otherwise, arising out of or
relating to the sponsorship by Seller or its Affiliates of any employee benefit
plan, policy, program or arrangement for the benefit of Seller's employees.
(e) Except as otherwise set forth in this Agreement, neither
Seller nor any of its Affiliates shall assume nor have any direct or indirect
obligation or Liability of any nature, whether matured or unmatured, accrued or
contingent, due or to become due, or otherwise, to any Transferred Employee or
other present or former employee of Purchaser and its Affiliates, or to any
dependent, survivor or beneficiary thereof, arising out of or relating to such
person's employment with Purchaser or the termination by Purchaser of any
Transferred Employee's employment after the Closing Date, and neither Seller nor
its Affiliates shall assume nor have any direct or indirect obligation or
liability of any nature, whether matured or unmatured, accrued or contingent,
due or to become due, or otherwise arising out of or relating to the sponsorship
by Purchaser or its Affiliates of any employee benefit plan, policy, program or
arrangement for the benefit of the Transferred Employees.
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2.3 PURCHASE PRICE.
(a) Upon the terms and subject to the conditions of this
Agreement, on the Closing Date Purchaser shall pay to Seller an amount equal to
the Purchase Price less Five Hundred Thousand Dollars ($500,000) in cash; and
(b) Purchaser acknowledges, agrees and covenants that on
January 15, 2002, Purchaser shall pay to Seller in cash, the amount equal to
the Fair Market Value on January 15, 2002 of the number of issued and
outstanding shares of common stock of Purchaser or other securities to which
such common stock has been converted (the "NHP Shares"), corresponding to the
number of NHP Shares which Seller would have owned assuming that Seller had
invested Five Hundred Thousand Dollars ($500,000) in NHP Shares as of the
Closing Date (at a purchase price equal to the Fair Market Value) and had
reinvested all cash dividends and cash distributions in such NHP Shares as of
the payment date therefor, without commission (the "Deferred Payment").
Notwithstanding the foregoing, in lieu of all or a portion of the Deferred
Payment, Purchaser may, in its sole discretion, issue to Seller the NHP Shares
if, but only if: (i) such NHP Shares have been registered under the Securities
Act of 1933, as amended, or any successor statute, and all applicable "blue sky"
laws, (ii) such shares are duly authorized, validly issued, fully paid and
nonassessable, with no personal liability attaching to the ownership thereof,
and (iii) such NHP Shares are freely tradable and are registered on a national
securities exchange or included for listing on the National Association of
Securities Dealers National Market System. If in the period prior to January
15, 2002, the NHP Shares are converted into the right to receive a cash payment,
Purchaser shall as of the payment date for all other shareholders apply the
Deferred Payment, as payment in favor of any outstanding obligations of Seller
(or its Affiliates, excluding the Company) to Purchaser, with any excess being
paid to Seller. On the Closing Date, Purchaser shall provide Seller with a
statement as to the number of NHP Shares as of the Closing Date.
2.4 CLOSING. The closing of the sale and purchase of the Interests
under this Agreement shall take place at the offices of ▇▇▇▇▇▇▇ & Berlin,
Chartered, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ promptly following the
satisfaction of the conditions set forth in Articles VII and VIII, (the
"Closing"). Prior to or simultaneously with the Closing, Seller shall assign,
transfer and deliver to the Company all right, title and interest in and to each
of the Management Agreements, pursuant to the terms of any Assignment of
Management Agreements (substantially in the form of SCHEDULE 2.4(a)), free and
clear of all Liens, other than Permitted Liens. At the Closing, (a) Seller will
deliver to Purchaser, or Purchaser's designee, any other instruments of transfer
duly executed, and such other instruments of transfer, conveyance and assignment
reasonably requested by Purchaser as may be necessary or appropriate to confirm
in Purchaser legal and beneficial title to the Interests and to the Purchased
Assets, (b) Purchaser, or its Affiliates, and Seller shall execute the Operating
Agreement and the Ancillary Agreements to which they are a party, and (c) the
principal shareholders of Seller shall enter into that certain Certificate of
Principals by ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, dated as of the Closing Date (the
"Certificate of Principals"). On or prior to Closing, Seller shall cause the
Company to enter into certain: (i) Amendments to Management Agreements (in the
form attached hereto as SCHEDULE 2.4(b)); (ii) Subcontract Agreements
(collectively, the
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"Subcontract Agreements") with Purchaser (in the form attached hereto as
SCHEDULE 2.4(c)), and with Seller (in the form attached hereto as SCHEDULE
2.4(d)); (iii) Management Continuity Agreements (in the form attached hereto as
SCHEDULE 2.4(e)); (iv) Assignments of Management Continuity Agreement (in the
form attached hereto as SCHEDULE 2.4(f)); and (v) the Operating Agreement (in
the form attached hereto as SCHEDULE D). The date of the Closing is herein
referred to as the "Closing Date." All management fees received and any
reimbursement and fee sharing obligations (set forth on SCHEDULE C attached
hereto and incorporated herein) paid in connection with the Management Documents
shall be allocated by and among Seller and the Company pro rata on the basis of
the number of days Seller and the Company have managed or will manage the
Properties in the period in which the Closing Date occurs.
2.5 POST-CLOSING ADJUSTMENTS. For so long as the Company, Purchaser, or
Purchaser's Affiliates continues to provide property management services
applicable to a Property during the Management Period with respect to such
Property, Purchaser shall pay to Seller additional consideration in the
amount(s) more particularly set forth in SCHEDULE 2.5 hereto, which is
incorporated herein by this reference (the "Contingent Consideration"). The
Contingent Consideration shall be calculated annually in arrears effective on
December 31 of each year following the end of the Management Period with respect
to a Property. The Contingent Consideration shall be due on January 10 of the
immediately following year and shall accrue interest at a rate of ten percent
(10%) per annum from the date hereof until the date such Contingent
Consideration is paid to Seller as provided for and reflected in the
calculations set forth in SCHEDULE 2.5, which in no event shall be later than
March 1 (or the next Business Day if March 1 is not a Business Day). Any
Contingent Consideration shall be treated as an adjustment to the Purchase Price
for all foreign, federal, state and local income Tax purposes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
CONCERNING THE COMPANY
Seller hereby represents and warrants to Purchaser as follows:
3.1 ORGANIZATION; STANDING AND POWER. The Company is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware. The Company has all requisite, statutory and
inherent organizational power and authority to own, lease and operate its
properties and to carry on its business as now being conducted and as proposed
to be conducted under the Operating Agreement. The Company is duly qualified as
a foreign entity to do business, and is in good standing, in each jurisdiction
set forth on SCHEDULE 3.1, attached hereto and incorporated herein, which are
all of the jurisdictions where the character of its properties owned or leased
or the nature of its activities makes such qualification necessary except for
where such failure to qualify would not have a Material Adverse Effect. Copies
of the Certificate of Formation and
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Operating Agreement for the Company heretofore delivered to Purchaser are each
accurate and complete.
3.2 CAPITALIZATION. Immediately prior to Closing, Seller, ▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇▇▇ will own beneficially and of record all of the membership
interests of all classes in the Company, and all of such interests are duly and
validly issued, fully paid and non-assessable and free and clear of all Liens,
except for (i) Liens arising under or contemplated by this Agreement or any
Permitted Liens, or (ii) as otherwise disclosed to Purchaser in SCHEDULE 3.2,
attached hereto and incorporated herein. No Person is entitled to any
preemptive or similar right with respect to the issuance of any interests in the
Company, and, except for Purchaser's right to acquire the Interests hereunder,
neither the Company nor Seller has granted any options, warrants or other rights
to purchase or otherwise acquire any interest in the Company. Except for its
operating agreement (and to the extent that such agreement is amended, modified
and/or restated, including by the Operating Agreement), there are no agreements,
undertakings or understandings, written or oral, between the Company and any
holder of its interests, or among any holders of its interests, relating to the
acquisition (including, without limitation, rights of first refusal or
preemptive rights), disposition, or voting of the interests in the Company.
3.3 AUTHORITY; NONCONTRAVENTION. The execution, delivery, and
performance of the Ancillary Agreements to which it is a party, and the
consummation by the Company of the transactions contemplated thereby, have been
approved by all necessary action on the part of the Company under applicable
Legal Requirements and its certificate of formation and operating agreement.
The Ancillary Agreements to which it is a party, when executed and delivered by
the Company, will constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, except as set forth on SCHEDULE 3.3, and as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws of general application that may affect the enforcement of
creditors' rights generally and by general equitable principles. Except as set
forth on SCHEDULE 3.3, the execution, delivery and performance thereof by the
Company will not violate any Legal Requirements applicable to the Company and
will not conflict with or result in any breach of any of the terms, conditions,
or provisions of, or violate or constitute a default under (with or without
notice or passage of time or both) or otherwise give any Person a basis for
accelerated or increased rights of termination or nonperformance under, or
require a consent or waiver under, the Company's Certificate of Formation or
Operating Agreement (each as amended to date and presently in effect) or any
indenture, lease, agreement, Lien or other instrument or arrangement to which
the Company is a party or by which it or any of its properties is bound or
affected, or any Legal Requirement applicable to the Company, where any such
violation, conflict, breach, default, failure to obtain a consent or waiver
would, in the aggregate, reasonably be likely or expected to result in a
Material Adverse Effect on the Company.
3.4 APPROVALS. Except as set forth on SCHEDULE 3.4, no Approval is
required to be obtained on the part of the Company in connection with the
execution and delivery of the Ancillary Agreements, the offer, sale and delivery
of the Interests, the subcontracting of the Management
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Agreements by the Company to Purchaser or PRC (pursuant to the Subcontract
Agreements) or any other transactions to be consummated on or prior to the
Closing, as contemplated by this Agreement.
3.5 LITIGATION. There is no action, suit, arbitration or proceeding,
or judicial, governmental or regulatory inquiry pending, or, to the Knowledge of
Seller, investigation thereof or written threat thereof, or to the Knowledge of
Seller, any unasserted material claims, against the Company, except as disclosed
on SCHEDULE 3.5 hereof (the "Suits"), and in any event, none of the Suits
questions the validity of this Agreement or may otherwise be reasonably expected
to prevent or delay the consummation of the transactions contemplated hereby or
otherwise could be reasonably expected to result, either individually or in the
aggregate, in a Material Adverse Effect on the Company or its Members. There is
no outstanding judgment, order, decree, stipulation, or injunction of any
judicial, governmental or regulatory entity against or affecting the Company or
its assets or its business or any of its officers, directors, or employees, in
their capacity as such, with respect to the Company's business which has
resulted in a Material Adverse Effect.
3.6 ABSENCE OF LIABILITIES. As of the Closing Date, the Company will
not have any Liabilities, except for any "Permitted Liabilities." "Permitted
Liabilities" means liabilities: (a) relating to performance obligations, under
contracts in accordance with the terms and conditions thereof, (b) to return
deposits of third parties held in the ordinary course of business, (c) as
expressly permitted or contemplated by this Agreement, (d) compliance with Legal
Requirements, or (e) as set forth on SCHEDULE 3.6, attached hereto and
incorporated herein.
3.7 MATERIAL CONTRACTS AND OBLIGATIONS. SCHEDULE 3.7(a), attached
hereto and incorporated herein by reference, sets forth a list of all material
agreements, of any nature to which the Company is a party or by which it or its
properties are bound or affected, including without limitation (a) each
agreement that requires or is reasonably expected to require future expenditures
by the Company in excess of Five Hundred Dollars ($500.00) or that might result
in payments to the Company in excess of Five Hundred Dollars ($500.00), (b) all
employment and consulting agreements, employee benefit, bonus, pension, profit
sharing, interests options, interests purchase, and similar plans and
arrangements, and distributor and sales representative agreements and (c) any
agreements with any member, officer, or director of the Company, or any
"affiliate" or "associate" of such persons (as such terms are defined in the
rules and regulations promulgated under the Securities Act), including, without
limitation, any agreement or other arrangement providing for the furnishing of
services by, rental of real or personal property from, or otherwise requiring
payments to, any such Person. The Company has delivered to Purchaser true,
correct and complete copies of all of the foregoing agreements. Except as set
forth on SCHEDULE 3.7(b), each such agreement upon its execution by the Company
will be valid, binding and enforceable against the Company, and, to Seller's
Knowledge, the other parties thereto in accordance with its terms, and is in
full force and effect. Except as set forth on SCHEDULE 3.7(c), neither the
Company nor, to Seller's Knowledge, any other party thereto is in material
breach of or default under any such agreement (and no event has occurred which,
with due notice or lapse of time or both, would constitute such a lapse or
default).
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3.8 COMPLIANCE. The Company has, in all material respects, complied
with all Legal Requirements applicable to its present and proposed business and,
except as set forth on SCHEDULE 3.8, has all governmental and quasi-governmental
Approvals required thereby.
3.9 LICENSES, PERMITS AND AUTHORIZATIONS. Except as set forth in
SCHEDULE 3.9, attached hereto and incorporated herein, the Company has all
material governmental approvals necessary to enable the Company to continue to
conduct its business as currently being conducted or proposed to be conducted.
The Company has not received any notice from any governmental, quasi-
governmental, legal or regulatory agency, authority or other entity to the
effect that the Company is in default or violation under any of its governmental
approvals. Except as set forth in SCHEDULE 3.9, each such material governmental
approval is in full force and effect and the Company is in material compliance
with all of its obligations with respect thereto, and, to the Knowledge of
Seller, no event has occurred which permits, or upon the giving of notice or the
lapse of time or otherwise would permit, revocation, nonrenewal, material
modification, suspension or termination of any of the foregoing.
3.10 ENVIRONMENTAL MATTERS. The Company has complied in all material
respects with all applicable Environmental Laws and the requirements of any
Approvals issued under such Environmental Laws. There are no past, pending or
to the Knowledge of Seller threatened Environmental Claims against or affecting
the Company or any Property owned, encumbered or operated by the Company prior
to the Closing. There are no facts, circumstances, conditions or occurrences
affecting any Property owned, encumbered or operated by the Company prior to the
Closing or on any property adjoining or in the vicinity of any such Property
that would reasonably be expected (i) to form the basis of an Environmental
Claim against the Company or any such Property, or (ii) to cause such Property
to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Property under any applicable Environmental Law.
Hazardous Materials have not at any time been generated, used, treated or
stored on, or transported to or from, any Property owned, encumbered or operated
by the Company prior to the Closing where such generation, use, treatment or
storage has violated any Environmental Law. Hazardous Materials have not at any
time been Released on or from any such Property where such Release has violated
any applicable Environmental Law. There are not now any underground storage
tanks located on any Property owned or operated by the Company prior to the
Closing.
3.11 APPROPRIATENESS OF PAYMENTS. Neither the Company nor any of its
members, officers or employees or any other Person acting on behalf of the
Company has (a) used any Company funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (b)
made any direct or indirect unlawful payments to government officials or
employees, including foreign government officials or employees, from Company
funds, (c) established or maintained any unlawful or unrecorded fund of monies
or other assets of the Company, (d) made any false or fictitious entries on the
books of account of the Company, or (e) made or received any bribe, rebate,
payoff, influence payment kickback or other unlawful payment on behalf of or for
the intended benefit of the Company.
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3.12 POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed on behalf of the Company.
3.13 BANKING. SCHEDULE 3.13, attached hereto and incorporated herein by
reference, contains a true and complete list of the names and locations of any
and all financial institutions at which the Company maintains a checking
account, deposit account, securities account, safety deposit box or other
deposit or safekeeping arrangement, the numbers or other identification of all
such accounts and arrangements.
3.14 DISCLOSURES. To Seller's Knowledge there is no information or fact
relating specifically to Seller (or its Affiliates) or any Partnership or
Property (as opposed to any information or fact of general applicability) that
has since the December 31, 1995 financial statements for the Company, the
Partnerships or Seller (and which is not otherwise contained in such financial
statements) had or could reasonably be likely or expected to have a Material
Adverse Effect on the Company, the Partnerships or Seller that has not been
disclosed to Purchaser in writing in a manner which would reasonably put
Purchaser on notice of such fact, information and risk.
3.15 SOCIAL SERVICES PAYMENTS. The Social Service Payments set forth on
SCHEDULE C have been approved by HUD, which approval is still in full force and
effect.
3.16 PHYSICAL INSPECTION REPORTS. There are, as of the date hereof, no
"unsatisfactory" or "below average" physical inspection reports from HUD on any
of the Properties, except as shown on SCHEDULE 5.4.
3.17 LITIGATION OR INSURANCE CLAIMS. There are, as of the date hereof,
no insurance claims or third party litigation which could reasonably be expected
to result in a material loss to PRC.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
CONCERNING MANAGEMENT RIGHTS
Seller hereby represents and warrants to Purchaser as follows:
4.1 MANAGEMENT DOCUMENTS. As of the Closing Date, the Management
Agreements, the Amendment of Management Agreements, the Assignment of
Management Agreements, the Management Continuity Agreements, the Assignments of
Management Continuity Agreement (collectively, the "Management Documents"), the
Subcontract Agreements and the Operating Agreement each will be valid, binding
and enforceable against Seller, each of the Partnerships and the Company which
are parties thereto, as applicable. As of the Closing Date, Seller, each of the
Partnerships and the Company which are parties thereto, as applicable, will not
be in material breach
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of or default or subject to events which solely with the passage of time would
result in such a material breach or default under any such Management Documents
or HAP Contracts and will have performed all obligations required to be
performed under all such Management Documents as of the Closing Date. The
Company shall, as of the Closing Date, have sole ownership of all Management
Rights thereunder, subject to the rights to terminate pursuant to the terms of
certain of the Management Documents. All of the representations, warranties and
covenants set forth in the Management Documents (other than Article IV of the
Assignments of Management Continuity Agreement) are incorporated herein by
reference with the same force and effect as if completely restated herein.
4.2 TERMINATION OF THE MANAGEMENT AGREEMENTS. Neither Seller, nor any
of the Partnerships, nor the Company has taken any action or omitted to take any
commercially reasonable action that has caused (prior to the Closing Date), or
which could reasonably be expected to cause, at any time, the termination or
modification (other than the execution of Amendment of Management Agreement in
the form attached hereto as SCHEDULE 2.4(b) on the Closing Date) of any of the
Management Documents or termination, modification or reduction in payments of or
under the HAP Contracts, other than any such termination or modification which
would not occur but for the occurrence of the matters set forth in Section
1.4(b)(ii) of the form of Management Continuity Agreement attached hereto as
SCHEDULE 2.4(e).
4.3 THE COMPANY AS PROPERTY MANAGER. Seller has not terminated the
Company as property manager under the terms of any of the Management Documents
or modified any such terms.
4.4 TRUE AND COMPLETE AGREEMENTS. On or prior to the Closing Date,
Seller shall have provided Purchaser with copies of each of the Management
Documents and the HAP Contracts and each of such copies is true, complete and
accurate. Except as set forth in SCHEDULE C attached hereto and incorporated
herein, none of the Management Documents or the HAP Contracts has been amended
or modified in any respect. SCHEDULE C is a true, correct and complete list of
all fees, reimbursements and income payable to the Company as management agent
as of the Closing under each of the Management Agreements.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
CONCERNING SELLER
Seller hereby represents and warrants to Purchaser as follows:
5.1 DELIVERY OF GOOD TITLE; CONDITION OF PURCHASED ASSETS. (a) Upon
delivery of the Interests and the Purchased Assets to be sold by Seller
hereunder and payment of the portion of the Purchase Price required to be paid
at Closing pursuant to the terms Section 2.3(a) of this Agreement,
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Purchaser will have good and marketable title to the Interests and the Purchased
Assets as of the Closing free and clear of all Liens and Liabilities, other than
(i) Permitted Liens, (ii) Assumed Liabilities, (iii) Liabilities arising under
the Operating Agreement, and (iv) other restrictions on future transfers of a
general nature arising under federal and state securities laws or in the
Operating Agreement.
(b) Purchased Assets are in good operating condition and repair
(ordinary wear and tear excluded), have been properly maintained in accordance
with recognized commercially reasonable industry practices, are available for
immediate use by the Purchaser in connection with the Company's proposed
business, are in material compliance with all Legal Requirements, and, together
with assets which are subject to the Equipment Sharing Agreement, by and between
Seller and Purchaser, are all of the material assets used by Seller or its
agents, if any, in connection with the services provided in connection with the
management of the Properties.
5.2 AUTHORITY; NONCONTRAVENTION. The execution, delivery, and
performance by Seller of this Agreement and the Ancillary Agreements executed by
Seller in connection herewith, and the consummation by Seller of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action on the part of Seller. This Agreement and the
Ancillary Agreements to which Seller is a party when executed and delivered by
Seller, will constitute legal, valid and binding obligations of Seller,
enforceable in accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws of general application that may affect the
enforcement of creditors' rights generally and by general equitable principles.
Except as set forth on SCHEDULE 5.2, the execution and performance of the
transactions contemplated by this Agreement and the Ancillary Agreements
executed by Seller in connection herewith, and compliance with their provisions
by Seller will not violate any Legal Requirement applicable to Seller and will
not conflict with or result in any breach of any of the terms, conditions, or
provisions of, or violate or constitute a default under (with or without notice
or passage of time or both) or otherwise give any Person a basis for accelerated
or increased rights of termination or nonperformance under, or require a consent
or waiver under, its Certificate of Incorporation or By- Laws (each as amended
to date and presently in effect) or any indenture, lease, agreement, Lien or
other instrument or arrangement to which Seller is a party or by which it or any
of its properties is bound or affected or any Legal Requirement applicable to
Seller, where any such violation, conflict, breach, default, failure to obtain a
consent or waiver would, in the aggregate, reasonably be likely or expected to
result in a Material Adverse Effect on Seller.
5.3 APPROVALS. Except as set forth on SCHEDULE 5.3, no Approval is
required to be obtained on the part of Seller in connection with Seller's
execution and delivery of this Agreement, the offer, sale, and delivery of the
Interests and the Purchased Assets, the assignment of the Management Agreements
to the Company, the Subcontract Agreements by the Company to Purchaser or the
other transactions to be consummated as of or subsequent to the Closing Date, as
contemplated by this Agreement and the Ancillary Agreements.
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5.4 COMPLIANCE. Except as set forth on SCHEDULE 5.4, Seller, and the
Partnerships have, in all material respects, complied with all Legal
Requirements applicable to the management of the Properties and the performance
of their obligations under the Management Documents and the HAP Contracts, and
have all governmental or quasi-governmental Approvals required thereby.
5.5 LITIGATION. There is no action, suit, or proceeding, or
governmental inquiry or Environmental Claim pending, or, to Seller's Knowledge,
any investigation thereof or threat thereof, against Seller, except as set forth
in SCHEDULE 5.5 attached hereto and incorporated herein (the "PRC Suits"), and
in any event, no PRC Suit questions the validity of this Agreement, any
Ancillary Agreement or the right of Seller to enter into or perform its
obligations under this Agreement or any Ancillary Agreement or will have a
Material Adverse Effect on the Business, Seller or the Company.
5.6 TAXES. Seller has filed or has obtained presently effective
extensions with respect to all Federal, state, county, local, and foreign tax
returns that are required to be filed by it, such returns are true and correct
and all taxes shown thereon to be due have been timely paid with exceptions not
material to Seller. There are no present open audits concerning any Federal,
state or local income Tax Returns of Seller by the Internal Revenue Service,
and no controversy with respect to taxes of any type is pending or, to the
Knowledge of Seller, threatened in writing. Seller has attached hereto as
SCHEDULE 5.6, incorporated herein by reference, a true and complete list of all
Taxes applicable to the Properties for the tax year 1996, including, without
limitation, the total amount of Taxes assessed on the Properties and a list of
the J-51 tax abatements setting forth the amount(s) and duration or term of such
abatements.
5.7 FINANCIAL STATEMENTS. (a) Seller has furnished to Purchaser a
complete and correct copy of the annual financial statements for 1993, 1994, and
1995, more particularly set forth in SCHEDULE 5.7(a), attached hereto and
incorporated herein, for Seller and each of the Partnerships prepared in
accordance with the books and records of Seller and each such Partnership,
respectively, present fairly the financial condition, results of operations and
changes in financial position of Seller and the Partnerships, respectively, as
at the dates and for the periods indicated, and, except as noted therein, have
been prepared in accordance with GAAP applied on a consistent basis during the
periods covered thereby and prior periods and, except as set forth on SCHEDULE
5.7(c) there has been no material adverse change in the financial condition of
Seller as of the date hereof and as of the Closing Date since December 31, 1995.
(b) SCHEDULE 5.7(b), attached hereto and incorporated herein,
is a true, correct and complete report in all material respects for each
Partnership of all expenditures made for appliance upgrades and replacements for
the periods indicated therein.
5.8 ORGANIZATION AND STANDING. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York.
Each of the Partnerships is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of New York. Each of
Seller and the Partnerships has all requisite corporate or partnership power, as
applicable, and authority to own, lease and operate its properties and to carry
on its business as now
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being conducted. Copies of Seller's Articles of Incorporation and Bylaws and
all of the Certificates of Limited Partnership and Limited Partnership
Agreements for the Partnerships heretofore delivered to Purchaser, as set forth
in SCHEDULE 5.8 attached hereto and incorporated herein (together with any other
organizational documents and amendments or modifications thereto for Seller and
the Partnership) are each true, accurate and complete and represents a complete
list of Seller's and the Partnerships' organizational documents.
5.9 PROPERTY. Each of the Partnerships has good and marketable title
to all of its Properties and such Properties are free and clear of all Liens,
except (i) as set forth in SCHEDULE 5.9, attached hereto and incorporated herein
by reference, and (ii) for the Permitted Liens. Except for Permitted Materials,
Hazardous Materials have not at any time been generated, used, treated or stored
on, or transported to or from, any Property owned, encumbered or operated by the
Company prior to the Closing where such generation, use, treatment or storage
has violated any Environmental Law. Except for Permitted Materials, Hazardous
Materials have not at any time been Released on or from any such Property where
such Release has violated any applicable Environmental Law. There are not now
any underground storage tanks located on any Property owned or operated by the
Company prior to the Closing.
5.10 SOLVENCY. None of Seller or the Partnerships is insolvent as of
the date hereof and as of the Closing Date, as determined in accordance with
Section 101(32) of the Federal Bankruptcy Code.
5.11 LEASE. Seller has delivered to Purchaser a true, correct and
complete copy of the Lease as currently in effect. The Lease is valid, binding
and enforceable against Seller in accordance with its terms, except as limited
by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws of general application that may affect the
enforcement of creditors' rights generally and by general equitable principles.
Seller has complied in all material respects with the Lease and is not in
default thereunder. Seller has not granted or been granted any written waiver
or forbearance with respect to the Lease, and to Seller's Knowledge, the
landlord under the Lease is not in default under the Lease. Except as set fort
in SCHEDULE 5.11, Seller has all requisite power and authority to assign its
rights under the Lease to Purchaser in accordance with this Agreement, and such
assignment will not affect the validity, enforceability or continuity of the
Lease.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
CONCERNING PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
6.1 ORGANIZATION; STANDING AND POWER. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Purchaser has all
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requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, and to execute, deliver and
perform its obligations under this Agreement and any of the Ancillary
Agreements executed by Purchaser in connection herewith and to consummate the
transactions contemplated hereby and thereby. Copies of Purchaser's Certificate
of Incorporation and Bylaws (together with any other organizational documents
and amendments or modifications thereto) heretofore delivered to Seller are
true, complete and accurate.
6.2 AUTHORITY; NONCONTRAVENTION. The execution, delivery, and
performance by Purchaser of this Agreement and any Ancillary Agreements executed
by Purchaser in connection herewith, and the consummation by Purchaser of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action on the part of Purchaser. This Agreement and any
Ancillary Agreement to which Purchaser is a party when executed and delivered by
Purchaser will constitute a legal, valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws of general application that may affect the enforcement of
creditors' rights generally and by general equitable principles. The execution
of and performance of the transactions contemplated by this Agreement and any
Ancillary Agreements executed by Purchaser in connection herewith and
compliance with their provisions by Purchaser will not violate any Legal
Requirements applicable to Purchaser and will not conflict with or result in any
breach of any of the terms, conditions, or provisions of, or violate or
constitute a default under (with or without notice or passage of time or both)
or otherwise give any Person a basis for accelerated or increased rights of
termination or nonperformance under, or require a consent or waiver under, its
Certificate of Incorporation or By- Laws (each as amended to date and presently
in effect) or any indenture, lease, agreement, Lien or other instrument or
arrangement to which Purchaser is a party or by which it or any of its
properties is bound or affected, where any such violation, conflict, breach,
default, failure to obtain a consent or waiver would in the aggregate,
reasonably be likely or expected to result in a Material Adverse Effect on
Purchaser.
6.3 LITIGATION. There is no action, suit, or proceeding, or
governmental inquiry, pending, or, to Purchaser's actual knowledge, any
investigation or threat thereof, against Purchaser, that questions the validity
of this Agreement, any Ancillary Agreement or the right of Purchaser to enter
into or perform its obligations under this Agreement, any Ancillary Agreement to
which Purchaser is a party or which will have a Material Adverse Effect on the
Business.
6.4 SEC Reports. Purchaser has furnished Seller with true and correct
copies (with exhibits) of its most recent annual report. As of their respective
dates, the Form 10-K and all Form 10-Qs filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, since the
completion of the fiscal year (collectively, the "SEC Reports"), did not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, except any statement or omission therein which
has been corrected or otherwise disclosed or updated in a subsequent filing with
the SEC prior to the date hereof. Since January 1, 1995, the Company has
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filed with the SEC all reports and registration statements and all other filings
required to be filed by the Company with the SEC under the rules and regulations
of the SEC.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF PURCHASER
The obligations of Purchaser to consummate the transactions contemplated by
this Agreement are subject to the fulfillment, or the waiver by Purchaser, of
each of the following conditions on or before the Closing Date:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each representation
and warranty contained in Articles III, IV and V shall be true and correct in
all material respects on and as of the Closing Date with the same effect as
though such representation and warranty had been made on and as of that date.
7.2 RESTRAINTS OR PROHIBITIONS. There shall not be instituted and
pending or threatened any action or proceeding by or before any judicial,
governmental or regulatory entity (i) challenging the acquisition of the
Interests or the Purchased Assets by Purchaser or otherwise seeking to restrain
or prohibit the consummation of the transactions contemplated hereby or (ii)
seeking to prohibit the direct or indirect ownership or operation by Purchaser
of all or a material portion of the business or assets of the Company, or to
compel Purchaser or the Company to dispose of or hold separate all or a material
portion of the business or assets of the Company or Purchaser.
7.3 COMPLIANCE WITH COVENANTS. Seller shall have materially complied
with all covenants and agreements and satisfied all conditions on its part to be
performed or satisfied pursuant to the terms of this Agreement and each
Ancillary Agreement on or prior to the Closing Date.
7.4 APPROVALS. All required Approvals, listed on SCHEDULE 7.4, shall
have been obtained and shall be in full force and effect.
7.5 LITIGATION. No suit, action, investigation or other proceeding
shall be pending or threatened in writing by or before any court or governmental
or regulatory entity which could reasonably be expected to adversely affect the
consummation of the transactions contemplated hereby or result in a Material
Adverse Effect on the Company.
7.6 NO MATERIAL ADVERSE CHANGE. No act, event or condition shall have
occurred after the date hereof which Purchaser determines in its sole discretion
has had a Material Adverse Effect on the Company.
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7.7 OPINION OF COUNSEL. Purchaser shall have received opinions from
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and Hirschen & Singer, counsel for Seller, dated the
Closing Date, addressed to Purchaser, substantially in the form attached hereto
and incorporated herein as SCHEDULE 7.7.
7.8 CERTIFICATES AND DOCUMENTS. Seller shall have delivered or made
available to counsel to Purchaser:
(a) The Certificate of Incorporation of Seller, the Certificate
of Formation of the Company and Certificates of Limited Partnership of the
Partnerships, each as amended and in effect prior to the Closing Date, certified
by the appropriate governmental authority;
(b) Certificates, as of the most recent practicable dates, as
to the good standing of Seller, and the Company and certified Certificates of
Formation of the Partnerships issued by the appropriate governmental authority
confirming such good standing or formation on or immediately prior to the
Closing Date;
(c) By-laws of Seller, the Operating Agreement of the Company
and Limited Partnership Agreements of the Partnerships, certified by an
authorized officer as of the Closing Date; and
(d) Resolutions of the Board of Directors of Seller, the
members of the Company and the Corporate General Partner of the Partnerships,
authorizing and approving this Agreement and the transactions contemplated
hereby, certified by an authorized officer as of the Closing Date.
7.9 ADDITIONAL AGREEMENTS. The following agreements shall have been
executed and delivered to Purchaser by all parties thereto other than Purchaser,
in substantially the form set forth as Exhibits to this Agreement:
(a) Non-recourse Promissory Note by Seller for the benefit of
Purchaser (the "Note");
(b) Assignment delivered by Seller for the benefit of Purchaser
and securing the Note (the "Assignment");
(c) Put-Call Option Agreement by and between Seller and NHP
Incorporated (the "Put Call");
(d) Real Estate On-Line Listing and Option Agreement of even
date herewith by and among Seller, the Company and Purchaser (the "Listing
Agreement");
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(e) Operating Agreement of Aptek Management Company LLC by and
between Seller and NHP Management Company (the "Third Party LLC Agreement");
(f) Operating Agreement of Aptek Maintenance Services LLC by
and between Seller and NHP Maintenance Company (the "Maintenance LLC
Agreement");
(g) Contingent Stock Issuance Agreement of even date herewith,
by and between Seller and Purchaser (the "Contingent Stock Agreement");
(h) Non-Compete Agreement by and between Seller and Purchaser
(the "Non-Compete Agreement");
(i) Agency Agreement by and between Seller and Purchaser (the
"Agency Agreement");
(j) Certificate of Principals; and
(k) Contingent Payment Agreement executed by Seller for the
benefit of Purchaser (the "Contingent Payment Agreement").
7.10 ISSUANCE OF REOL ECONOMIC INTEREST. Seller shall assign (or
arrange for the assignment of), and the Company shall receive a five percent
(5%) interest in REOL (the "Economic Interest"), which Economic Interest shall
entitle the Company inter alia to the right to share in the profits and losses
of, and the right to receive distributions from REOL as set forth in REOL's
operating agreement and the Listing Agreement and any securities issued with
respect thereto by way of an equity dividend or split or in connection with a
recapitalization, merger, consolidation or other reorganization or otherwise.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of Seller to consummate the transactions contemplated by
this Agreement are subject to fulfillment, on or before the Closing Date, of the
following conditions:
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties of Purchaser contained in Article VI shall be
true and correct in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made on and
as of that date.
8.2 RESTRAINTS OR PROHIBITIONS. There shall not be instituted and
pending or threatened in writing any action or proceeding by or before any
judicial, governmental or regulatory entity (I)
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challenging the sale of the Interests or the Purchased Assets by Seller or
otherwise seeking to restrain or prohibit the consummation of the transactions
contemplated hereby or (ii) seeking to prohibit the direct or indirect ownership
or operation by Seller of all or a material portion of the business or assets of
the Company, or to compel Seller or the Company to dispose of or hold separate
all or a material portion of the business or assets of the Company or Seller.
8.3 COMPLIANCE WITH COVENANTS. Purchaser shall have materially
complied with all covenants and agreements and satisfied all conditions on its
part to be performed or satisfied pursuant to the terms of this Agreement and
each Ancillary Agreement on or prior to the Closing Date.
8.4 APPROVALS. All required Approvals, including from any judicial,
governmental or regulatory entity, landlord or other Person, necessary for the
consummation of the transactions contemplated hereby, shall have been obtained
and shall be in full force and effect.
8.5 LITIGATION. No suit, action, investigation or other proceeding
shall be pending or threatened in writing by or before any court or governmental
or regulatory entity which could reasonably be expected to adversely affect the
consummation of the transactions contemplated hereby or result in a Material
Adverse Effect on the Company.
8.6 OPINION OF COUNSEL. Seller shall have received an opinion from
▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for Purchaser, dated the Closing Date,
addressed to Seller, substantially in the form attached hereto and incorporated
herein, as SCHEDULE 8.6.
8.7 CERTIFICATES AND DOCUMENTS. Purchaser shall have delivered or made
available to counsel to Seller, upon such counsel's request;
(a) The Certificate of Incorporation of Purchaser, as amended
and in effect as of the Closing Date, certified by the appropriate governmental
authority;
(b) Certificates, as of the most recent practicable dates, as
to the good standing of Purchaser, issued by the appropriate governmental
authority confirming such good standing on or immediately prior to the Closing
Date;
(c) By-laws of Purchaser, certified by an authorized officer as
of the Closing Date; and
(d) Resolutions of the Board of Directors of Purchaser,
authorizing and approving all matters in connection with this Agreement and the
transactions contemplated hereby, certified by an authorized officer as of the
Closing Date.
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8.8 ADDITIONAL AGREEMENTS. The loan evidenced by the Note has been
extended and the following agreements shall have been executed and delivered to
Seller by all parties thereto other than Seller, in substantially the form set
forth as Exhibits to this Agreement:
(a) the Put-Call;
(b) the Listing Agreement;
(c) Third Party LLC Agreement;
(d) Maintenance LLC Agreement;
(e) Contingent Stock Agreement;
(f) Non-Compete Agreement; and
(g) Agency Agreement.
8.9 SCHEDULES. The SCHEDULEs to be delivered by Purchaser to Seller
prior to the Closing Date shall be in form and substance acceptable to Seller in
its sole discretion and the SCHEDULEs to be delivered by Seller to Purchaser
prior to the close of business on November 20, 1996 shall be in form and
substance acceptable to Purchaser in its sole discretion. This provision shall
be of no further force and effect after November 20, 1996.
ARTICLE IX
COVENANTS OF SELLER AND THE COMPANY
Seller hereby covenants to Purchaser as follows:
9.1 INSPECTION. From the date hereof, until the earlier of the Closing
Date or the termination of this Agreement pursuant to Article XII, Seller shall
permit Purchaser, and any authorized representative thereof, to visit and
inspect the properties of Seller, each of the Partnerships and the Company (if
any), including their respective organizational and financial records, and to
discuss their businesses and finances with officers of Seller and/or the
Company, during normal business hours following reasonable notice and as often
as may be reasonably requested (in connection with the foregoing). Purchaser
and each of its authorized representatives shall treat and hold as confidential
such information in accordance with the terms and provisions of that certain
Confidentiality Agreement, entered into as of December 5, 1995, between
Purchaser and Seller, which Confidentiality Agreement shall remain in full force
and effect.
9.2 CONDUCT OF BUSINESS PENDING THE CLOSING. Seller covenants and
agrees that from the date hereof until the earlier of the Closing Date or the
termination of this Agreement pursuant to
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Article XII, it shall cause the Company not to conduct any business of any kind
other than: (a) the express obligations of this Agreement; (b) entering into and
performing under the terms of the Management Documents and the Operating
Agreement; (c) holding a five percent (5%) membership interest in REOL; and (d)
seeking all required Approvals.
9.3 APPROVALS. Each of Purchaser and Seller shall, prior to the
Closing Date, use its best efforts to secure all requisite Approvals with
respect to the transactions contemplated herein, including without limitation,
all Approvals of HUD necessary in connection with the Assignments of the
Management Agreements to the Company and the Subcontract Agreements, provided,
however, that no contract, including any Management Documents, shall be amended
in order to obtain any such Approval, or otherwise without first obtaining the
written approval of Purchaser.
9.4 COMPETING OFFERS; MERGER OR LIQUIDATION. From the date hereof,
until the earlier of the Closing Date or the termination of this Agreement
pursuant to Article XII, Seller will not, and Seller will cause the Company not
to, directly or indirectly, and will instruct their officers, directors, members
and agents not to, solicit, initiate or encourage the submissions of bids,
offers or proposals by, any Person with respect to an acquisition of the Company
or all or any portion of its business, assets (including, without limitation,
any Management Rights) or membership interests or a merger or similar
transaction, and neither the Company nor Seller will, nor will they permit the
Company to, engage any broker, financial adviser or consultant with an incentive
to initiate or encourage proposals or offers from other Persons. Furthermore,
neither the Company nor Seller shall, nor shall Seller permit the Company to,
directly or indirectly, and will instruct their officers, directors, members and
agents not to, engage in negotiations concerning any such transaction with, or
provide information to, any Person other than Purchaser and its representatives.
The Company and Seller shall not, and shall ensure that the Company shall not,
commence any proceeding to merge, consolidate, liquidate or dissolve or enter
into any agreement, arrangement or understanding to do so.
ARTICLE X
OTHER COVENANTS AND INDEMNITIES
The parties hereby covenant, as applicable, as follows:
10.1 REASONABLE EFFORTS AND CERTAIN OBLIGATIONS. Subject to the terms
and conditions herein provided, each of the parties hereto agrees to use its
best efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things necessary, proper, or advisable under applicable Legal
Requirements, to fulfill its obligations under this Agreement, to cause the
fulfillment of the conditions set forth in Articles VII and VIII, to cause the
consummation of the transactions contemplated hereby in accordance with the
terms and conditions hereof, and to apply for and diligently pursue with all
appropriate parties any increases in fees for which the manager of a property
may be eligible.
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10.2 SELLER AS GENERAL PARTNER. Except for transfers which are made in
accordance with the terms of that certain Right of First Refusal Agreement by
and between Seller and Purchaser, Seller shall, excepting the cases of Crotona
Estates and Belmont II Associates, remain the general partner of, with power to
solely act on behalf of, each of the Partnerships.
10.3 INFORMATION. From time to time as reasonably requested by
Purchaser, and to the extent reasonably available to Seller, Seller shall
provide or cause to be provided such financial and other information with
respect to Seller, the Partnerships and the Properties as may be necessary to
enable Purchaser to prepare and file any and all registrations, notices, reports
or other filings with all governmental, quasi-governmental or regulatory
agencies and authorities including, without limitation, all registrations and
other reports required under the Securities Exchange Act of 1934, as amended, at
Purchaser's cost.
10.4 DEFERRED PAYMENT. From the Closing Date until the Deferred
Payment is paid, or the NHP Share issued, in lieu thereof, Purchaser shall
provide Seller a statement setting forth the number of NHP Shares and the Fair
Market Value of the Deferred Payment as of the end of the preceding calendar
quarter, within thirty (30) days after Seller's reasonable request (which in no
event shall be made more frequently than annually).
10.5 CONSISTENT REPORTING. Each party hereto agrees to reflect and
report on all tax forms or tax returns to be filed with any federal, state or
local government agency or taxing authority, the transactions contemplated and
evidenced by this Agreement and the Ancillary Agreements and the agreements
listed in Section 7.9 in a manner that to the greatest extent possible is
consistent with the form of the transactions as evidenced by, and the
terminology used in, this Agreement and the Ancillary Agreements and the
agreements listed in Section 7.9.
ARTICLE XI
REMEDIES FOR BREACHES OF THIS AGREEMENT
11.1 INVESTIGATIONS; SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND
COVENANTS. Each of the Representations and Warranties shall not be deemed
waived or otherwise affected by any investigation and shall survive the Closing
and remain in full force and effect until the later of the date of final
resolution of any specific claims timely made prior to the expiration of the
survival period under this Agreement with respect to any such Representation and
Warranty or January 1, 1998 (the "Warranty Period"); provided, with respect to
the Representations and Warranties set forth in Sections 3.1, 3.2, 3.3, 3.4,
3.7, 3.12, 4.1 (excluding the representations and warranties incorporated by
reference by the last sentence of Section 4.1), 4.2 (and with respect to Section
4.2 only with respect to third party claims, including, but not limited to,
claims of partners of the Partnerships), 4.3, 4.4, 5.1(a), 5.2, 5.3, 5.4 (and
with respect to Section 5.4 only with respect to Environmental Laws), 6.2 and
6.4 (the "Indefinite Term Warranties") and the covenants set forth in
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this Agreement, including, without limitation, those contained in Articles II,
IX and X, the Warranty Period shall be indefinite; and provided further that,
except as specified above, the Warranty Period with respect to Section 5.4 shall
be the later of two (2) years from the Closing Date or the date of final
resolution of any specific claim made during such two (2) year period.
11.2 INDEMNIFICATION.
(a) From and after the Closing Date, Seller hereby indemnifies,
defends and holds harmless Purchaser and each of its affiliates (including the
Company), shareholders, directors, officers, employees and agents (collectively,
the "Indemnified Purchasers") from and against, and shall reimburse the
Indemnified Purchasers for, all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities and Expenses (collectively, the
"Damages"), including, without limitation, interest, penalties and reasonable
attorneys' fees, disbursements and expenses, imposed on or incurred by the
Indemnified Purchasers, or any of them, by reason of:
(i) any breach, or breach alleged by a third party, by
Seller of any of its Representations and Warranties contained in this Agreement;
or
(ii) any failure, or alleged failure alleged by a third
party, by Seller to perform any covenant, undertaking or obligation hereunder
prior to, or after the Closing Date.
(b) From and after the Closing Date, Purchaser hereby
indemnifies, defends and holds harmless Seller and its shareholders, directors,
officers, employees and agents (collectively, the "Indemnified Sellers") from
and against, and shall reimburse the Indemnified Sellers for, all Damages,
including, without limitation, interest, penalties and reasonable attorneys'
fees, disbursements and expenses, imposed on or incurred by the Indemnified
Sellers, or any of them, directly or indirectly, by reason of:
(i) any breach or alleged breach by Purchaser of any of
its Representations and Warranties contained in this Agreement; or
(ii) any failure, or alleged failure alleged by a third
party, by Purchaser or, after the Closing Date, the Company (excluding any
failure or alleged failure arising out of Seller's failure or breach under the
Subcontract Agreement), to perform any covenant, undertaking or obligation
hereunder prior to, on or after the Closing Date.
(c) Notwithstanding anything herein to the contrary, neither
Seller nor Purchaser shall have any obligation to indemnify any Indemnified
Purchaser or
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Indemnified Seller, respectively, from and against any Damages resulting from
the breach of any Representation and Warranty (other than Indefinite Term
Warranties) (x) until the indemnified parties have suffered aggregate Damages,
by reason of all such breaches, in excess of $150,000.00 (after which point
Seller or Purchaser, as the case may be, shall be obligated to indemnify from
and against all Damages), and provided that (y) that the aggregate Damages due
to be paid to the Indemnified Purchasers by reason of all such breaches of
Representations and Warranties of Seller or the Company (other than Indefinite
Term Representations, but including Section 5.4), shall not exceed the Purchase
Price plus Four Million Two Hundred Thirty-six Thousand Dollars ($4,236,000);
and (z) that the aggregate Damages due to be paid to the Indemnified Sellers by
reason of all such breaches of Representations and Warranties of Purchaser
(other than Indefinite Term Representations), shall not exceed Seven Hundred
Thousand Dollars ($700,000.00).
(d) Notwithstanding anything to the contrary contained in this
Agreement, to the extent that any Damages for which the Indemnified Purchasers
or the Indemnified Sellers, respectively, may claim indemnity pursuant to
Section 11.2, are Damages suffered by the Company, its officers, or employees,
the indemnifying party shall only be obligated to indemnify the "Indemnified
Party" (hereinafter defined), other than the Company, for an amount equal to the
percentage of such Damages such Indemnified Party would otherwise be entitled
to if such Damages were paid directly to the Company.
11.3 CERTAIN INDEMNIFICATION MATTERS.
(a) If any director or executive officer of Purchaser or Seller
or their respective Affiliates, as applicable, has actual knowledge of any
material breach of any Representation and Warranty of the other party hereto,
such party (the "Indemnified Party") shall promptly notify the other party (the
"Indemnifying Party") of such breach; provided, however, that such party's only
remedy in respect of a breach of this obligation to provide notice shall be the
difference between (i) the costs and expenses incurred to cure such undisclosed
breach pursuant to this Article XI and (ii) the costs and expenses which would
have been incurred had such covenant to notify not been breached and the
Indemnified Party cured such undisclosed breach.
(b) The Indemnifying Party shall have no obligation to
indemnify or hold harmless the Indemnified Party for any Damages to the extent
that (i) the Indemnified Party has actually recovered such Damages (net of
expenses of recovery) from any Person other than the Indemnifying Party, or (ii)
the Indemnified Party is insured against such Damages. The Indemnified Party
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shall assign to the Indemnifying Party, upon payment of all Damages or full
recovery due to the Indemnified Party hereunder, any right the Indemnified Party
may have against any Person (other than the Indemnifying Party) to recover any
such amounts that the Indemnifying Party has paid to the Indemnified Party
pursuant hereto.
(c) Any payments by an Indemnifying Party under this Article XI
shall be treated as an adjustment to the Purchase Price for all foreign,
federal, state and local income Tax purposes.
11.4 DEFENSE. If any Indemnified Party learns of any matter which may
give rise to a claim for indemnification against an Indemnifying Party under
this Article XI, then the Indemnified Party shall notify the Indemnifying Party
thereof promptly and in any event within five (5) Business Days after receiving
any written notice from a third party; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall relieve
the Indemnifying Party from any obligation hereunder unless, and then solely to
the extent that, the Indemnifying Party is materially prejudiced thereby. Once
the Indemnified Party has given notice of the matter to the Indemnifying Party,
the Indemnified Party may, subject to the Indemnifying Party's rights to assume
the defense thereof, defend against the matter in any manner it reasonably may
deem appropriate. In the event the Indemnifying Party notifies the Indemnified
Party (after the date the Indemnified Party has given notice of the matter) that
the Indemnifying Party is assuming the defense of such matter, the Indemnifying
Party shall defend the Indemnified Party against the matter with counsel of its
choice reasonably satisfactory to the Indemnified Party. Notwithstanding the
foregoing, the Indemnified Party shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of the Indemnified Party unless (i) the employment of such counsel shall
have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying
Party shall not have employed counsel to fully and properly take charge of the
defense of such action within a reasonable time after notice of commencement of
the action or (iii) the Indemnified Party shall have reasonably concluded that
there are defenses available to it that are different from or additional to
those available to one or more of the Indemnifying Parties (in which case the
Indemnifying Parties shall not have the right to direct the defense of such
action on behalf of the Indemnified Party with respect to such different
defenses), in any of which events such fees and expenses shall be borne by the
Indemnifying Party. Assumption of the defense of any matter by the Indemnifying
Party shall not prejudice the right of the Indemnifying Party to claim at a
later date that such third party action is not a proper matter for
indemnification pursuant to this Article XI. The Indemnified Party shall not
consent to the entry of a judgment or enter into any settlement with respect to
any matter which may give rise to a claim for indemnification without the
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed. The Indemnifying Party shall not consent to
the entry of a judgment with respect to any matter which may give rise to a
claim for indemnification or enter into any settlement which does not include a
provision whereby the plaintiff or claimant in the matter releases the
Indemnified Party from all Damages with respect thereto, without the written
consent of the Indemnified Party (not to be unreasonably withheld or delayed).
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11.5 REMEDIES. Subject to Section 11.6 hereof, after the Closing Date,
the indemnification provisions set forth in this Article XI shall constitute the
sole and exclusive recourse and remedy available to the parties hereto with
respect to the breach of any representation, warranty or covenant (other than
the failure to deliver the Interest or the Purchase Price) contained in this
Agreement. Provided however that the foregoing shall not limit or be in
derogation of, any statutory, equitable or common law right or remedy any party
may otherwise have at law or in equity.
11.6 EQUITABLE RELIEF. Seller recognizes that, if Seller defaults in
the performance of its obligations under this Agreement, monetary damages alone
will not be adequate. Purchaser shall therefore be entitled in such event, in
addition to bringing suit at law or equity for money or other damages, to obtain
specific performance of the terms of this Agreement. In any action to enforce
the provisions of this Agreement, Seller shall waive the defense that there is
an adequate remedy at law or equity and shall agree that Purchaser shall have
the right to obtain specific performance of the terms of this Agreement without
being required to prove actual damages, post bond or furnish other security. In
addition, to the extent that it ultimately prevails, Purchaser shall be entitled
to obtain from Seller court costs and reasonable attorneys' fees and expenses
incurred by it in enforcing its rights hereunder.
11.7 RECOVERY. Recovery under this Agreement is not limited in any way
whatsoever by Purchaser's receipt of any "Termination Payment" (as such term is
defined in the Subcontract Agreement) under Purchaser's Subcontract Agreement.
Any amounts otherwise payable pursuant to the terms of this Agreement, but only
to the extent that such amounts relate solely to a Specific Property, or the
Management Agreement, the Continuity Agreement or the Assignment of Continuity
Agreement related to such specific Property, to the extent that such amount is
for a termination or a reduction of fees under the applicable Management
Agreement, however, shall be reduced by (i) any amounts paid by Seller to the
Company (or its successors or assigns) under Article III of the Assignments of
Management Continuity Agreements, and (ii) any amounts paid by Seller to
Purchaser (or its successors or assigns) pursuant to the Contingent Payment
Agreement arising out of such termination or reduction. There shall be no
reduction or offset for other amounts paid under this Agreement or any other
agreement.
11.8 OFFSET. Upon a final determination by the arbitrator that a
Termination Payment is due under an Assignment of Continuity Agreement,
Purchaser may offset against any payments due Seller hereunder such amount and
forward such amounts to the Company in satisfaction of such obligation, and to
the extent deducted shall be credited against such Termination Payment
obligation.
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ARTICLE XII
TERMINATION, AMENDMENT AND WAIVER
12.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing:
(a) either (i) by mutual consent of Purchaser and Seller or
(ii) by either party if the Closing has not occurred for any reason whatsoever
by December 31, 1996, provided that such party seeking to terminate is not then
in a material default of its obligations hereunder;
(b) by Purchaser if (i) there has been a material
misrepresentation, breach of warranty or breach of covenant by Seller under this
Agreement or (ii) any of the conditions precedent to Closing set forth in
Article VII or the covenants set forth in Article IX have not been met on or
kept until December 31, 1996, and, in each case, Purchaser is not then in
material default of its obligations hereunder; or
(c) by Seller if (i) there has been a material
misrepresentation, breach of warranty or breach of covenant by Purchaser under
this Agreement or (ii) any of the conditions precedent to Closing set forth in
Article VIII have not been met on December 31, 1996, and, in each case, Seller
is not then in material default of its obligations hereunder.
(d) by either party on or prior to close of business on
November 20, 1996 if the SCHEDULEs and Exhibits to this Agreement or any other
agreement referenced herein are not satisfactory to it, in its sole discretion.
12.2 EFFECT OF TERMINATION.
(a) In the case of any termination of this Agreement, the
provisions of Section 13.1 shall remain in full force and effect.
(b) Upon termination of this Agreement as provided in Section
12.1 (a) or 12.1 (d) or upon termination on or prior to November 20, 1996 as
provided in Section 12.1 (b) or 12.1 (c), this Agreement shall forthwith become
void and there shall be no liability or obligation on the part of any party
hereto or their respective directors, officers, employees, agents or other
representatives.
(c) In the event of termination of this Agreement after
November 20, 1996 as provided in Section 12.1(b) or (c), such termination shall
be without prejudice to any rights that the terminating party or parties may
have against
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the breaching party or parties for a breach of covenant or any other Person
under the terms of this Agreement or otherwise.
ARTICLE XIII
MISCELLANEOUS
13.1 EXPENSES. Except as expressly provided elsewhere in this Agreement,
each party hereto shall pay its own Expenses.
13.2 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon, and inure to the benefit of, the respective successors, permitted
assigns, legal representatives and administrators of the parties hereto.
Notwithstanding anything to the contrary contained herein, the parties hereto
acknowledge and agree that Purchaser may transfer and assign any of its rights
hereunder, including, but not limited to, Purchaser's rights to receive the
Interests, to any affiliate of Purchaser designated by Purchaser, provided that
no such assignment will relieve Purchaser of its obligations hereunder, and
provided further that such assignment shall not hinder, delay or prevent the
Closing.
13.3 NOTICES. All notices and other communications hereunder shall be
in writing (including telex or similar writing) and shall be deemed given (a)
when delivered personally to the recipient, (b) when sent to the recipient by
telecopy (with receipt electronically confirmed by sender's machine) if prior to
6 p.m. (Eastern Time) on a Business Day, otherwise on the next Business Day, or
(c) one (1) Business Day after the date sent to the recipient by reputable
express courier service (charges prepaid) to the parties at the following
addresses or telecopier numbers (or at such other address, or telecopy number
for a party as shall be specified by like notice):
(a) if to Seller, to:
Property Resources Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Purchaser, to:
NHP Incorporated
Fairfax Square
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Executive Vice President
and a copy to ▇▇▇▇ ▇▇▇▇▇▇, Esquire, General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & Berlin, Chartered
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
13.4 BROKERS. Seller and Purchaser each (i) represents and warrants to
the other party hereto that it has retained no finder or broker in connection
with the transactions contemplated by this Agreement to whom the Company or the
other party shall be liable to pay any fee or expense, and (ii) will indemnify
and save the other parties harmless from and against any and all claims,
liabilities or obligations with respect to brokerage or finders' fees or
commissions, or consulting fees in connection with the transactions contemplated
by this Agreement asserted by any Person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
13.5 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior or contemporaneous agreements and
understandings, written or oral, relating to such subject matter.
13.6 AMENDMENTS AND WAIVERS. Except as otherwise expressly set forth
in this Agreement, any term of this Agreement may only be amended and the
observance of any term of this Agreement may only be waived (either generally or
in a particular instance and either retroactively or
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prospectively), with the express written consent of Seller and Purchaser. No
failure to exercise and no delay in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege preclude the exercise of any other right, power or
privilege. No waiver of any breach of any covenant or agreement hereunder shall
be deemed a waiver of any preceding or subsequent breach of the same or any
other covenant or agreement. Except as expressly set forth in Article XI, the
rights and remedies of each party under this Agreement are in addition to all
other rights and remedies, at law or in equity, that such party may have against
the other parties.
13.6 NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies on any Person other than the parties hereto and their
respective successors and permitted assigns; provided, however, that the
provisions in Article XI above concerning indemnification are intended for the
benefit of the Persons specified therein and their respective legal
representatives.
13.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.9 HEADINGS. The headings of the sections, subsections, and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
13.10 SEVERABILITY. If any one or more of the provisions herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect, and of the
remaining provisions, shall not be in any way impaired or affected. In such
event, there shall be added as part of this Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable. The effective date of the added provision
shall be the date upon which the prior provision was held to be invalid, illegal
or unenforceable.
13.11 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, excluding that body of
laws pertaining to conflicts of laws.
13.12 ARBITRATION. Except to the extent this Agreement provides
otherwise, any dispute arising under this Agreement shall be resolved by
arbitration as hereinafter provided. The party desiring arbitration shall give
written notice to that effect to the other party and to such party's counsel, as
provided for in Section 13.3 hereof. The party initiating the arbitration shall
send a copy of the notice initiating the arbitration to the American Arbitration
Association (or its successor) and shall request that the American Arbitration
Association select within 10 days thereafter an individual who meets the
following criteria to act as the arbitrator. The arbitrator must be (i)
"independent," i.e., not having at that time or at any time within the
immediately preceding five (5) years a substantial relationship with either
party to the arbitration, any Affiliate of either such party, or any
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officer or director of any such party or Affiliate, (ii) an attorney having at
least ten (10) years experience, and (iii) knowledgeable in finance. No party
to the arbitration shall have any right to object to the individual named as the
arbitrator except upon the ground that the named individual does not meet the
aforesaid criteria. If more than one arbitration is conducted pursuant to this
Agreement, the parties agree to use the same arbitrator, subject to his
availability. The arbitration shall be conducted in the City of New York and,
to the extent consistent with this Paragraph, in accordance with the expedited
procedures set forth in and otherwise in accordance with the then Commercial
Arbitration Rules of the American Arbitration Association (or any organization
successor thereto). The arbitrator shall be instructed to proceed with all
reasonable diligence to resolve the dispute by no later than 30 days after the
date on which the American Arbitration Association received the request to
initiate the arbitration, to render his decision in writing and to deliver
counterpart copies thereof to each of the parties. The arbitrator may issue a
default award against a party that fails to appear at any meeting or hearing
scheduled by the arbitrator or which attempts to delay the arbitration. Such
decision shall be binding, final and conclusive on the parties. Judgment may be
had on the decision so rendered in any court of competent jurisdiction, federal
or state, and may be enforced in accordance with the laws of the State of New
York. The fees of the arbitrator, the fees and expenses of respective counsel
engaged by the parties, the fees and expenses of expert witnesses and other
witnesses called by the parties and the cost of transcripts shall be paid by the
party against which the dispute is resolved, unless otherwise specified by the
arbitrator.
13.13 RECITALS, SCHEDULES AND ANNEXES. The recitals, schedules, exhibits
and annexes to this Agreement are incorporated herein and, by this reference,
made a part hereof as if fully set forth at length herein.
13.14 CONSTRUCTION.
(a) An accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP.
(b) As used in this Agreement, the masculine, feminine or
neuter gender, and the singular or plural, shall be deemed to include the others
whenever and wherever the context so requires.
(c) For the purposes of this Agreement, unless the context
clearly requires, "or" is not exclusive.
(d) This Agreement has been negotiated and prepared by
Purchaser and Seller, and if any provision of this Agreement requires judicial
interpretation, or interpretation by an arbitrator, the court or arbitrator
interpreting or construing the provision shall not apply the rule of
construction that a document is to be construed more strictly against the party
who prepared the document.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
day and year first above written.
NHP INCORPORATED, a Delaware corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive Vice President
PROPERTY RESOURCES CORPORATION, a New York
corporation
By:
------------------------------------
Name:
------------------------------------
Title:
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