1
Exhibit 10.1
MEMORANDUM OF UNDERSTANDING
By and Among
NEW MEDITRUST COMPANY, LLC,
IPC ADVISORS S.a.r.l.,
BALANCED CARE CORPORATION,
AND
BALANCED CARE REALTY AT ALTOONA, INC.,
BALANCED CARE REALTY AT BERWICK, INC.,
BALANCED CARE REALTY AT LEWISTOWN, INC.,
BALANCED CARE REALTY AT MANSFIELD, INC.,
BALANCED CARE REALTY AT MARTINSBURG, INC.,
BALANCED CARE REALTY AT MAUMELLE, INC.,
BALANCED CARE REALTY AT MOUNTAIN HOME, INC.,
BALANCED CARE REALTY AT PECKVILLE, INC.,
BALANCED CARE REALTY AT READING, INC.,
BALANCED CARE REALTY AT SCRANTON, INC.,
BALANCED CARE REALTY AT SHERWOOD, INC.,
and
BALANCED CARE REALTY AT STATE COLLEGE, INC.
Dated as of : December 30, 1999
2
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING is made and entered into as of this
30th day of December, 1999, by and among (a) IPC ADVISORS S.a.r.l., a Luxembourg
corporation, having for the purposes of this Memorandum, an address at 00-00 Xxx
Xxxxxx Xxxxx, Xxxxxxxxxx X-0000 (hereinafter referred to as "IPC"); (b) NEW
MEDITRUST COMPANY LLC, a Delaware limited liability company, having a principal
address at 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter
referred to as the "Seller"); (c) BALANCED CARE CORPORATION, a Delaware
corporation, having its principal address at 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, XX
00000 ("Balanced Care") and (d) BALANCED CARE REALTY AT ALTOONA, INC., BALANCED
CARE REALTY AT BERWICK, INC., BALANCED CARE REALTY AT LEWISTOWN, INC., BALANCED
CARE REALTY AT MANSFIELD, INC., BALANCED CARE REALTY AT MARTINSBURG, INC.,
BALANCED CARE REALTY AT MAUMELLE, INC., BALANCED CARE REALTY AT MOUNTAIN HOME,
INC., BALANCED CARE REALTY AT PECKVILLE, INC., BALANCED CARE REALTY AT READING,
INC., BALANCED CARE REALTY AT SCRANTON, INC., BALANCED CARE REALTY AT SHERWOOD,
INC., and BALANCED CARE REALTY AT STATE COLLEGE, INC., each a Delaware
corporation, having its principal address at 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, XX
00000 (hereinafter collectively referred to the "Title Designees" and, together
with IPC and Balanced Care, as the "Purchasers").
W I T N E S S E T H
WHEREAS, the Seller is the owner of twelve (12) parcels of land located
in Arkansas, Pennsylvania, Ohio, and West Virginia more particularly described
in each of the Leases (as hereinafter defined) and defined therein as the Land
(collectively, the "Land");
WHEREAS, pursuant to the Leases (as hereinafter defined), the Seller
leases the Land and the other Leased Property (as hereinafter defined) to the
Lessees (as hereinafter defined) and, in accordance with the BCC Lease Documents
each Lessee, or such Lessee's predecessor in interest under the applicable BCC
Lease Documents constructed (or is constructing) an assisted living or other
senior housing facility on the portion of the Land demised under the applicable
Lease and each Lessee operates (or will operate) the Facility (as hereinafter
defined) demised to it;
WHEREAS, the Lessees are, directly or indirectly, wholly-owned
subsidiaries of Balanced Care;
3
WHEREAS, Balanced Care and IPC, a shareholder of Balanced Care, agreed
to acquire the Leased Property from the Seller and, in order to consummate such
acquisition, IPC and Balanced Care designated the Title Designees to take title
thereto;
WHEREAS, the Title Designees are, directly or indirectly,
wholly-owned subsidiaries of Balanced Care;
WHEREAS, simultaneously with the execution and delivery of this
Memorandum, the Seller has conveyed to the Title Designees the Leased Property
for a purchase price (the "Purchase Price") of FIFTY-TWO MILLION SEVENTY-THREE
THOUSAND FIFTY-FOUR DOLLARS ($52,073,054), allocated to each portion of the
Leased Property as set forth on the Schedule attached hereto as EXHIBIT A (the
"Allocation Schedule"), such Purchase Price having been paid by the Title
Designees to the Seller as follows: (a) by payment in cash, subject to the
adjustments expressly provided herein, in the amount of FORTY-FOUR MILLION TWO
HUNDRED SIXTY-TWO THOUSAND DOLLARS ($44,262,000), allocated to each portion of
the Leased Property as set forth on the Allocation Schedule under the heading
"Allocated Cash Component;" and (b) by execution and delivery of a Promissory
Note of even date and delivery herewith from IPC and Balanced Care to the order
of the Seller in the original principal amount of SEVEN MILLION EIGHT HUNDRED
ELEVEN THOUSAND FIFTY-FOUR DOLLARS ($7,811,054);
WHEREAS, the Purchasers, being affiliates of the Lessees, the
Developers and the Managers (as such terms are hereinafter defined), have
independent and thorough knowledge of the Leased Property and, accordingly, have
agreed to accept title to the applicable portion of the Leased Property being
conveyed to each of the Title Designees in its current AS-IS condition without
representation or warranty of any kind from the Seller, except for any express
representations or warranties made by the Seller in the Transaction Documents;
and
WHEREAS, as a material inducement to the Seller to sell the Leased
Property to IPC and Balanced Care and to convey the applicable portion of the
Leased Property to each of the Title Designees, the Seller has required that the
Purchasers execute and deliver this Memorandum to (a) confirm that, except as
for any express representations or warranties made by the Seller in the
Transaction Documents, the Seller is making no representations or warranties to
the Purchasers in connection with the sale of the Leased Property, as more
particularly provided herein, and (b) agree on certain other matters in
connection with such sale.
4
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual covenants, conditions, representations and undertakings hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS AND MEANINGS. For all purposes of this Memorandum,
except as otherwise expressly provided or unless the context otherwise requires,
(a) the terms defined in this Section have the meanings assigned to them in this
Section and include the plural as well as the singular and (b) all references in
this Memorandum to designated "Sections" and other subdivisions are to
designated Sections and other subdivisions of this Memorandum.
Altoona Lease: As defined under each of the Leases.
Altoona Facility: The Facility as defined under the Altoona
Lease.
Altoona Land: The Land as defined under the Altoona Lease.
Altoona Lease: That certain First Amended and Restated Facility Lease
Agreement by and between the Original Lessor and the Altoona Lessee dated as of
December 19, 1997, as amended.
Altoona Lessee: TC Realty of Altoona, Inc., a Delaware corporation.
Balanced Care: As defined in the preamble of this Memorandum and its
permitted successors and assigns.
BCC Lease Documents: Collectively, the Lease Documents as
defined under each of the Leases.
Berwick Facility: The Facility as defined under the Berwick
Lease.
Berwick Land: The Land as defined under the Berwick Lease.
Berwick Lease: That certain Facility Lease Agreement by and between the
Original Lessor and the Berwick Lessee, dated as of January 7, 1998, as amended.
Berwick Lessee: TC Realty of Berwick, Inc., a Delaware
corporation.
Cash Collateral: Collectively, the Cash Collateral as defined under
each of the Leases.
5
Closing Date: December 30, 1999.
Closing Quarter: As defined in Section 2.
Commencement Dates: Collectively, the Commencement Date as defined
under each of the Leases.
Deposit Pledge Agreements: Collectively, the Deposit Pledge Agreement
as defined under each of the Leases.
Developers: Collectively, the Developer as defined under each of the
Leases (except the Altoona Lease, the Mountain Home Lease, the Reading Lease,
the Sherwood Lease and the Maumelle Lease).
Facilities: Collectively, the Altoona Facility, the Berwick Facility,
the Lewistown Facility, the Mansfield Facility, the Martinsburg Facility, the
Maumelle Facility, the Mountain Home Facility, the Peckville Facility, the
Reading Facility, the Scranton Facility, the Sherwood Facility and the State
College Facility.
Fixtures: Collectively, all fixtures, fittings, furniture, apparatus,
equipment, machinery and building systems permanently affixed to or incorporated
into any portion of the Leased Property, including, without limitation, all
furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, incinerating, air and water pollution control, waste disposal, air-
cooling and air conditioning systems and apparatus and sprinkler systems.
Governmental Authorities: Collectively, all agencies, authorities,
bodies, boards, commissions, courts, instrumentalities, legislatures and offices
of any nature whatsoever of any government, quasi-government unit or political
subdivision, whether with a federal, state, county, district, municipality, city
or otherwise and whether now or hereinafter in existence.
Gross Revenues: As defined under each of the Leases.
Guarantors: Collectively, any guarantor of all or any portion of the
BCC Lease Obligations.
Impositions: As defined under each of the Leases.
IPC: As defined in the preamble of this Memorandum and its permitted
successors and assigns.
6
Land: As defined in the preamble of this Memorandum, including, without
limitation, the Altoona Land, the Berwick Land, the Lewistown Land, the
Mansfield Land, the Martinsburg Land, the Maumelle Land, the Mountain Home Land,
the Peckville Land, the Reading Land, the Scranton Land, the Sherwood Land and
the State College Land.
Leases: Collectively, the Altoona Lease, the Berwick Lease, the
Lewistown Lease, the Mansfield Lease, the Martinsburg Lease, the Maumelle Lease,
the Mountain Home Lease, the Peckville Lease, the Reading Lease, the Scranton
Lease, the Sherwood Lease and the State College Lease.
Leased Improvements: Collectively, all buildings, structures, fixtures
and other improvements of every kind including, but not limited to, alleyways
and connecting tunnels, sidewalks, utility pipes, conduits and lines (on-site
and off-site), and parking areas and roadways appurtenant to such buildings and
structures situated upon any portion of the Land, including, without limitation,
the Facilities.
Leased Property: Collectively, the Land, the Related Rights, the Leased
Improvements and the Fixtures.
Lessees: Collectively, the Altoona Lessee, the Berwick Lessee, the
Lewistown Lessee, the Mansfield Lessee, the Martinsburg Lessee, the Maumelle
Lessee, the Mountain Home Lessee, the Peckville Lessee, the Reading Lessee, the
Scranton Lessee, the Sherwood Lessee and the State College Lessee.
Lewistown Facility: The Facility as defined under the
Lewistown Lease.
Lewistown Land: The Land as defined under the Lewistown
Lease.
Lewistown Lease: That certain Facility Lease Agreement by and between
the Original Lessor and the Lewistown Lessee, dated as of January 7, 1998, as
amended.
Lewistown Lessee: TC Realty of Lewistown, Inc., a Delaware
corporation.
Managers: Collectively, the Current Manager as defined under each
Lease.
Mansfield Facility: The Facility as defined under the Mansfield Lease.
7
Mansfield Land: The Land as defined under the Mansfield Lease.
Mansfield Lease: That certain First Amended and Restated Facility Lease
by and between the Original Lessor and the Mansfield Lessee dated as of January
8, 1998, as amended.
Mansfield Lessee: TC Realty Corporation II, a Delaware corporation.
Martinsburg Facility: The Facility as defined under the Martinsburg
Lease.
Martinsburg Land: The Land as defined under the Martinsburg Lease.
Martinsburg Lease: That certain Facility Lease Agreement by and between
the Original Lessor and the Martinsburg Lessee dated as of December 31, 1997, as
amended.
Martinsburg Lessee: Black Box of Martinsburg, Inc., a Delaware
corporation.
Maumelle Facility: The Facility as defined under the Maumelle Lease.
Maumelle Land: The Land as defined under the Maumelle Lease.
Maumelle Lease: That certain First Amended and Restated Facility Lease
Agreement by and between the Original Lessor and the Maumelle Lessee dated as of
December 19, 1997, as amended.
Maumelle Lessee: TC Realty of Maumelle, Inc., a Delaware corporation.
Memorandum: This Memorandum of Understanding, together with all
Exhibits attached hereto as the same may hereafter be amended, restated and
supplemented from time to time.
Mountain Home Facility: The Facility as defined under the Mountain Home
Lease.
Mountain Home Land: The Land as defined under the Mountain Home Lease.
Mountain Home Lease: That certain First Amended and Restated Facility
Lease by and between the Original Lessor and the Mountain Home Lessee dated as
of December 19, 1997, as amended.
8
Mountain Home Lessee: TC Realty of Mountain Home, Inc., a
Delaware corporation
Officer's Certificate: As defined in each of the Leases.
Original Lessor: Meditrust Acquisition Corporation II, a Delaware
corporation and the Seller's predecessor in interest as landlord under the
Leases.
Peckville Facility: The Facility as defined under the Peckville Lease.
Peckville Land: The Land as defined under the Peckville Lease.
Peckville Lease: That certain Facility Lease Agreement by and between
the Original Lessor and the Peckville Lessee dated as of December 31, 1997.
Peckville Lessee: Black Box of Peckville, Inc., a Delaware corporation
Person: A corporation (including a business trust), limited liability
company, association, trust, partnership, joint venture, joint stock company,
organization, proprietorship, natural person, government or governmental agency
or political subdivision thereof or any other entity of whatever nature.
Primary Intended Use. With respect to any Facility, as defined under
the Lease relating thereto.
Purchasers: As defined in the preamble of this Memorandum.
Reading Facility: The Facility as defined under the Reading Lease.
Reading Land: The Land as defined under the Reading Lease.
Reading Lease: That certain First Amended and Restated Facility Lease
by and between the Original Lessor and the Reading Lessee dated as of December
19, 1997, as amended.
Reading Lessee: TC Realty of Reading, Inc., a Delaware corporation.
Related Rights: Collectively, all easements, rights and appurtenances
of every nature and description now or hereafter relating to or benefitting all
or any portion of the Land and the Leased Improvements.
Rent: As defined under each of the Leases.
Scranton Facility: The Facility as defined under the Scranton Lease.
9
Scranton Land: The Land as defined under the Scranton Lease.
Scranton Lease: That First Amended and Restated Facility Lease by and
between the Original Lessor and the Scranton Lessee dated as of January 8, 1998,
as amended.
Scranton Lessee: TC Realty Corporation III, a Delaware corporation.
Seller: As defined in the preamble of this Memorandum and its
successors and assigns.
Sherwood Facility: The Facility as defined under the Sherwood Lease.
Sherwood Land: The Land as defined under the Sherwood Lease.
Sherwood Lease: That certain First Amended and Restated Facility Lease
by and between the Original Lessor and the Sherwood Lessee dated as of December
19, 1997, as amended.
Sherwood Lessee: TC Realty of Sherwood, Inc., a Delaware corporation.
State College Facility: The Facility as defined under the State College
Lease.
State College Land: The Land as defined under the State College Lease.
State College Lease: That certain Amended and Restated Facility Lease
Agreement by and between the Original Lessor and the State College Lessee dated
as of November 1, 1996, as amended.
State College Lessee: BCC at State College, Inc., a Delaware
corporation.
Title Designee: As defined in the preamble of this
Memorandum.
Transaction Documents: Collectively (a) the deeds from the
Seller of even or near even date herewith conveying the Leased
Property to the Title Designees, and (b) the agreements of even
or
10
near even date herewith by and among the Seller, the Lessees, Balanced Care, the
Developer and the Title Designees pursuant to which the Leases and certain of
the other BCC Lease Documents either were terminated or certain of the Seller's
rights thereunder were assigned to the Title Designees.
2. LEASE ADJUSTMENTS.
2.1 Rent Adjustment. On or prior to Closing Date, (a) each of the
Lessees has paid any amounts that are due and outstanding under the applicable
BCC Lease Documents relating to the applicable Facility (and the applicable
portion of the Leased Property relating thereto) conveyed to the applicable
Title Designee, including, without limitation, all Rent (other than a final
accounting of Additional Rent as required below) due under the applicable Lease,
prorated as of the Closing Date, and (b) notwithstanding anything to the
contrary set forth in the Leases, the applicable Title Designees will pay to
Seller on behalf of the applicable Lessees, as an adjustment to the Price on the
Closing Date, an amount equal to the Seller's reasonable estimate of the
Additional Rent due for the quarter in which the Closing Date occurred (the
"Closing Quarter"), as more particularly shown on the Allocation Schedule, which
amounts have been approved by the Lessee. Within ninety (90) days after the
Closing Date, Balanced Care shall deliver to the Seller, for each Facility, an
Officer's Certificate reasonably acceptable to the Seller and certified by the
chief financial officers of the applicable Lessee and Balanced Care, setting
forth the Gross Revenues for such Facility for the period from the commencement
of the Closing Quarter through the Closing Date. A final reconciliation of the
Additional Rent due under each Lease for the Closing Quarter shall be made based
upon such Officer's Certificate. If, as a result of such reconciliation, (a) the
Additional Rent determined to be due under each Lease for the Closing Quarter
exceeds the amount paid by the applicable Lessee on or prior to the Closing
Date, then Balanced Care agrees to pay, or to cause the applicable Lessee to
pay, such difference to the Seller within ten (10) days after such final
reconciliation, or (b) the Additional Rent determined to be due under each Lease
for the Closing Quarter is less than the amount paid by the applicable Lessee on
or prior to the Closing Date, then the Seller agrees to refund such overpayment
to the applicable Lessee within ten (10) days after such final reconciliation,
which obligation shall survive the acceptance by the Title Designees of the
Seller's deeds to the Leased Property.
2.2 No Other Adjustments; Cash Collateral. The Purchasers and, by
joining in the execution of this Agreement as provided below, the Lessees each
confirm and agree that, no matter whether any particular Lease has been assigned
or terminated on the Closing
11
Date, other than the disposition of the Cash Collateral in accordance with the
terms hereof, no other adjustments will be made under the BCC Lease Documents
and/or with respect to the Leased Property for Impositions, utility costs or any
other matter. The Lessees hereby direct the Seller to deliver the Cash
Collateral held by the Seller under the Deposit Pledge Agreements to the
Purchasers by crediting the Purchase Price due the Seller hereunder. Except for
such credit, no other adjustments to the Purchase Price shall be made between
the parties hereto as a result of the consummation of the transaction referenced
hereunder. Without limiting the foregoing, Balanced Care and the Title Designees
shall be responsible for the payment of any and all transfer taxes and
recordation taxes imposed as a result of the conveyance of the Leased Property
by the Sellers to the Title Designees or any assignment or termination of the
Leases, and for any and all other governmental charges that are payable in
connection with the sale of the Leased Property as described herein.
3. AS-IS CONDITION OF THE LEASED PROPERTY; NO SELLER REPRESENTATIONS OR
WARRANTIES. The Purchasers acknowledge that (a) each Lessee (or, under certain
of the Leases, another subsidiary of Balanced Care as predecessor to the
Lessee's interest thereunder) accepted receipt and delivery of the applicable
portion of the Leased Property that it leases from the Seller on or about the
applicable Commencement Date, (b) each of the Lessees (or such other subsidiary
of Balanced Care), the Developers and the Managers examined and otherwise
acquired knowledge of the condition of the applicable portion of the Leased
Property prior to such date that the applicable Lessee (or such other subsidiary
of Balanced Care) acquired possession of such portion of the Leased Property and
found the same to be in good order and repair and satisfactory for its purposes,
(c) the Lessees (or such other subsidiary of Balanced Care), the Developers
and/or the Managers have been in possession of the Leased Property from and
after such dates, (d) the Purchasers, the Developers and the Managers, all being
affiliates of the Lessees, have independent and thorough knowledge of the Leased
Property, the title thereto and all matters affecting the same, (e) the
Purchasers have made their own inquiry and investigation into, and based thereon
have formed an independent judgment concerning the Leased Property and the
operation thereof and are not relying on the Seller for any facts or information
with respect thereto, and (f) except for the express representations and
warranties contained in any of the Transaction Documents, the Seller is not
making, and the Purchasers are not relying upon, any representation or warranty,
express or implied, of any nature whatsoever with respect to the Leased
Property. Consequently, the Purchasers waive any and all claims and causes of
action, now or hereafter arising, against the Seller in respect of the condition
12
of the Leased Property. No such waiver shall limit any express representations
or warranties made by the Seller in the Transaction Documents. THE SELLER MAKES
NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED
PROPERTY, EITHER AS TO ITS FITNESS FOR ANY PARTICULAR PURPOSE OR USE, ITS DESIGN
OR CONDITION OR OTHERWISE, OR AS TO DEFECTS IN THE QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN, LATENT OR PATENT; IT BEING AGREED THAT ALL RISKS RELATING
TO THE DESIGN, CONDITION AND/OR USE OF THE LEASED PROPERTY ARE TO BE BORNE BY
THE PURCHASERS. THE LESSEES, THE DEVELOPERS, THE MANAGERS AND THE GUARANTORS
HAVE ASSUMED (PURSUANT TO THE BCC LEASE DOCUMENTS) AND, AS OF THE CLOSING DATE,
THE PURCHASERS ASSUME ALL RISK OF (I) THE PHYSICAL CONDITION OF THE LEASED
PROPERTY, (II) THE SUITABILITY OF EACH PORTION OF THE LEASED PROPERTY FOR
OPERATION IN ACCORDANCE WITH ITS APPLICABLE PRIMARY INTENDED USE, (III) THE
COMPLIANCE OR NON-COMPLIANCE OF THE LEASED PROPERTY WITH ALL APPLICABLE
REQUIREMENTS OF LAW, INCLUDING BUT, NOT LIMITED TO, ENVIRONMENTAL LAWS AND
ZONING AND OTHER LAND USE LAWS, (IV) ALL MATTERS THAT A SURVEY OF THE LAND MAY
DISCLOSE AND (V) WHETHER TITLE TO THE LEASED PROPERTY IS INSURABLE.
Without limiting the generality of the foregoing, the acceptance by the
Title Designees of the Seller's deeds to the Leased Property shall be deemed to
be a full performance and discharge of every agreement and obligation of the
Seller relating to the Leased Property, except those obligations hereunder that
by their express terms survive such acceptance, and except any express
representations or warranties made by the Seller in any of the Transaction
Documents. All of the Purchasers' obligations under this Memorandum shall
survive such acceptance.
4. PUBLICITY. All press releases, filings and other publicity
concerning the conveyance of the Leased Property pursuant to the Transaction
Documents will be subject to review and approval by the Seller, IPC and Balanced
Care, such approval not to be unreasonably withheld, conditioned or delayed.
Such approval shall not be required if the Person issuing any such publicity
reasonably believes it to be necessary for compliance with law, but such Person
shall provide the other parties with reasonable notice and an opportunity to
review same before any such release. The Seller, IPC and Balanced Care hereby
covenant and agree to keep the terms and conditions of the sale of the Leased
Property in accordance with this Memorandum and the Transaction Documents
confidential except to the extent that disclosure is required by law (including,
without limitation, any rules and regulations of any securities exchange on
which any of the parties hereto are listed that may require such disclosure;
provided, however, it is acknowledged and agreed that the parties hereto may
disclose such terms and conditions to their respective lenders, to the
professional advisors and consultants that are advising them or providing
13
necessary professional services in connection with the acquisition of the Leased
Property from the Seller and to any Governmental Authorities. Notwithstanding
the provisions of Section 3, the Seller's obligations under this Section 4 shall
survive the acceptance by the Title Designees of the Seller's deeds to the
Leased Property.
5. MISCELLANEOUS.
5.1 No Broker. Each of the Seller, Balanced Care and the Title
Designees represents to the others that no agent, finder or broker has acted for
it or was the producing and effective cause of the transactions referenced
herein, and that no commissions or finder's fees are due by it to any third
parties. Balanced Care and the Title Designees agree to indemnify, exonerate and
hold the Seller harmless from and against any claim, loss, damage, cost or
liability for any brokerage commission or fee which may be asserted against the
Seller as a result of the breach of this warranty by Balanced Care or any of the
Title Designees. The Seller agrees to indemnify, exonerate and hold Balanced
Care and the Title Designees harmless from and against any claim, loss, damage,
cost or liability for any brokerage commission or fee which may be asserted
against Balanced Care or any of the Title Designees as a result of the Seller's
breach of this warranty. Notwithstanding the provisions of Section 3, the
Seller's indemnity under this Section 5.1 shall survive the acceptance by the
Title Designees of the Seller's deeds to the Leased Property.
5.2 Entire Agreement. This Memorandum contains the entire
understanding of the parties with respect to the subject matters hereof and
supersedes all prior and other contemporaneous oral or written understandings
and agreements between the parties hereto.
5.3 Binding Effect; Assignment. This Memorandum shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. None of the parties hereto may assign its rights
hereunder without the written consent of the other parties.
5.4 Captions. The captions of this Memorandum are for convenience and
reference only, and in no way define, describe, extend or limit the scope or
intent of this Memorandum or the intent of any provisions hereof.
5.5 Joint Effort. The preparation of this Memorandum has been the joint
effort of the parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
14
5.6 Counterparts. This Memorandum may be executed in counterparts and
each executed copy shall be deemed an original which shall be binding upon all
parties hereto.
5.7 Partial Invalidity. If any provision of this Memorandum shall be
invalid or unenforceable, the remainder of this Memorandum shall not be affected
thereby. Notwithstanding the foregoing, it is the intention of the parties
hereto that if any provision of any of this Memorandum is capable of two (2)
constructions, one of which would render the provision void and the other of
which would render the provision valid, then such provision shall be construed
in accordance with the construction which renders such provision valid.
5.8 Amendments. This Memorandum may not be amended in any respect
whatsoever except by a further agreement, in writing, fully executed by each of
the parties hereto.
5.9 Governing Law. This Memorandum including the validity thereof and
the rights and obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
The Purchasers hereby consent to personal jurisdiction in any state or
Federal court located within the Commonwealth of Massachusetts, as well as to
the jurisdiction of all courts from which an appeal may be taken from the
aforesaid courts, for the purpose of any suit, action or other proceeding
arising out of or with respect to this Memorandum and/or any of the Transaction
Documents, the negotiation and/or consummation of the transactions contemplated
by this Memorandum and the Transaction Documents and/or the performance of any
obligation or the exercise of any remedy under any of the Transaction Documents
and the Purchasers expressly waive any and all objections they may have as to
venue in any of such courts.
5.10 Third Parties. Nothing in this Memorandum, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Memorandum on any Persons other than the parties hereto, their respective legal
representatives, successors and permitted assigns. No Person, other than the
Purchasers and the Seller may rely hereon or derive any benefit hereby as a
third party beneficiary or otherwise.
5.11 Rules of Construction. References in this Memorandum to "herein,"
"hereof" and "hereunder " shall be deemed to refer to this Memorandum and shall
not be limited to the particular text in which such words appear. The use of any
gender shall include all
15
genders, and the singular number shall include the plural and vice versa as the
context may require.
5.12 Joint and Several Liability. IPC, Balanced Care and each of the
Title Designees shall be jointly and severally liable for the Purchasers'
obligations hereunder.
[Remainder of Page Intentionally Left Blank]
16
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the date first above appearing.
SELLER:
NEW MEDITRUST COMPANY LLC, a Delaware
limited liability company
By:/s/Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title:Senior Vice President
IPC:
IPC ADVISORS S.a.r.l., a Luxembourg
corporation
By:/s/X.X. Xxxxxxxx
Name:X.X. Xxxxxxxx
Title:Manager
BALANCED CARE:
BALANCED CARE CORPORATION, a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Senior Vice President and
Legal Counsel & Assistant Secretary
TITLE DESIGNEES:
BALANCED CARE REALTY AT ALTOONA, INC., a
Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT BERWICK, INC., a
Delaware corporation
17
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT LEWISTON, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT MANSFIELD, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT MARTINSBURG,
INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT MAUMELLE, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT MOUNTAIN HOME,
INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
18
BALANCED CARE REALTY AT PECKVILLLE,
INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT READING, INC., a
Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT SCRANTON, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT SHERWOOD, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE REALTY AT STATE COLLEGE,
INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
The undersigned Lessees hereby join in the execution of the foregoing
Memorandum for the purposes of agreeing to the terms set forth in Section 2
thereof.
LESSEES:
19
TC REALTY OF ALTOONA, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
TC REALTY OF BERWICK, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
TC REALTY OF LEWISTON, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
TC REALTY CORPORATION II, a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BLACK BOX OF MARTINSBURG, INC., a
Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
TC REALTY OF MAUMELLE, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
20
TC REALTY OF MOUNTAIN HOME, INC., a
Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BLACK BOX OF PECKVILLE, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
TC REALTY OF READING, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
TC REALTY CORPORATION III, a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
TC REALTY OF SHERWOOD, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
BALANCED CARE AT STATE COLLEGE, INC., a
Delaware corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Vice President and Secretary
21
EXHIBIT A
TITLE ALLOCATED ALLOCATED
FACILITY EXISTING LESSEE DESIGNEE PURCHASE CASH
PRICE COMPONENT
Balanced Care of TC Realty of Altoona, Balanced Care $4,462,495 $3,793,113
Altoona Inc. Realty at Altoona,
Inc.
Balanced Care of TC Realty of Berwick, Balanced Care $3,405,346 $2,894,538
Berwick Inc. Realty at Berwick,
Inc.
Balanced Care of TC Realty of Balanced Care $3,423,345 $2,909,837
Lewistown Lewistown, Inc. Realty at
Lewistown, Inc.
Outlook Pointe of TC Realty Corporation Balanced Care $5,125,618 $4,356,766
Mansfield II Realty at
Mansfield, Inc.
Outlook Pointe of Black Box of Balanced Care $5,348,156 $4,545,923
Martinsburg Martinsburg, Inc. Realty at
Martinsburg, Inc.
Balanced Care of TC Realty of Maumelle, Balanced Care $4,784,963 $4,067,210
Maumelle Inc. Realty at
Maumelle, Inc.
Balanced Care of TC Realty of Mountain Balanced Care $4,700,000 $3,994,991
Mountain Home Home, Inc. Realty at Mountain
Home, Inc.
Outlook Pointe Black Box of Balanced Care $2,648,338 $2,251,082
Keepsake at Mid Valley Peckville, Inc. Realty at
(Peckville) Peckville, Inc.
Balanced Care of TC Realty of Reading, Balanced Care $5,888,384 $5,005,116
Reading Inc. Realty at Reading,
Inc.
Outlook Pointe Commons TC Realty Corporation Balanced Care $3,705,700 $3,149,838
at Scranton III Realty at
Scranton, Inc.
ALLOCATED ESTIMATED
NOTE ADDITIONAL
AMOUNT RENT
Balanced Care of $669,382 $2,300.00
Altoona
Balanced Care of $510,808 -0-
Berwick
Balanced Care of $513,508 -0-
Lewistown
Outlook Pointe of $768,852 $1,200.00
Mansfield
Outlook Pointe of $802,233 -0-
Martinsburg
Balanced Care of $717,753 $2,500.00
Maumelle
Balanced Care of $705,009 $2,500.00
Mountain Home
Outlook Pointe $397,256 $1,200.00
Keepsake at Mid Valley
(Peckville)
Balanced Care of $883,268 $2,500.00
Reading
Outlook Pointe Commons $555,862 -0-
at Scranton
22
TITLE ALLOCATED
FACILITY EXISTING LESSEE DESIGNEE PURCHASE
PRICE
Balanced Care of TC Realty of Sherwood, Balanced Care $4,943,703
Sherwood Inc. Realty at
Sherwood, Inc.
Balanced Care of State BCC at State College, Balanced Care $3,637,006
College Inc. Realty at State
College, Inc.
ALLOCATED ALLOCATED ESTIMATED
FACILITY CASH NOTE ADDITIONAL
COMPONENT AMOUNT RENT
Balanced Care of $4,202,138 $741,565 $2,800.00
Sherwood
Balanced Care of State $3,091,448 $545,558 -0-
College
