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EXHIBIT 10.ff
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is dated as of the 31st day of
July, 1997, by and between SEA PINES SENIOR LIVING CENTER, INC., a South
Carolina corporation ("Seller") and THE XXXXXX CENTER, L.L.C., a South Carolina
limited liability company ("Purchaser").
A. Seller owns a 44-long term care nursing bed, 35-assisted living bed
health facility (the "Health Care Center") located at 000 Xxxxx Xxxxx Xxxxx,
Xxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxx.
B. Tide Pointe Partners, an Ohio general partnership ("Partners") is the
developer and operator of Tide Pointe, a continuing care retirement community
licensed under South Carolina law and connected to the Health Care Center by a
climate-controlled walkway.
C. Pursuant to a Ground Lease dated August 4, 1994 (the "Ground Lease"),
Partners leased to Seller the approximately one-acre tract of land (the "Land")
upon which the Health Care Center is situated. In addition, Partners financed
the development of the Health Care Center by advancing to Seller funds in the
aggregate amount of approximately $8,725,000 (the "Facility Loan"). The Facility
Loan is evidenced in part by the Promissory Note of Seller dated August 4, 1994
in the principal amount of $4,749,740 (the "Note") and is secured by a Leasehold
Mortgage and Security Agreement dated May 24, 1995 between Seller and Partners
(the "Leasehold Mortgage"). In addition, pursuant to an Option Agreement dated
December 17, 1993 among Partners, Seller and Sea Pines Company, Inc. (the
"Option Agreement"), Partners has an option to purchase all of the issued and
outstanding shares of Seller.
D. Partners has assigned and conveyed to Purchaser all of Partners' right,
title and interest in and to (i) the Land, (ii) the Ground Lease, (iii) the
Facility Loan, (iv) the Note and (v) the Leasehold Mortgage.
E. Seller desires to sell to Purchaser, and Purchaser agrees to purchase
from Seller, all of the assets comprising the Health Care Center (including,
without limitation, all of Seller's right, title and interest in and to the
Ground Lease), upon the terms and conditions set forth in this Agreement.
F. By its order dated July 10, 1997, the South Carolina Department of
Health and Environmental Control has approved such transaction.
NOW, THEREFORE, in consideration of the mutual representations, covenants
and agreements set forth in this Agreement, Seller and Purchaser agree as
follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchased Assets. Upon the terms and subject to the conditions of
this Agreement, Seller hereby sells, transfers, assigns, conveys and delivers
to Purchaser, and Purchaser hereby
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purchases from Seller, free and clear of all liens, charges, security interests
or encumbrances (collectively, "Encumbrances") except Permitted Encumbrances
(defined below), all assets and properties comprising or in any way relating to
the Health Care Center (herein collectively called the "Assets") including,
without limitation, the following:
(a) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all fixtures,
machinery, appliances, equipment, furniture, inventory, materials and other
personal property of every nature whatsoever and located in or on, or
attached to, or used or usable in connection with, the Health Care Center
or the Land, buildings, structures or other improvements;
(b) All right, title and interest of Seller in and to (i) the Ground
Lease, (ii) the Management Agreement dated August 10, 1996 by and between
Seller and Volare Systems Limited Liability Company and (iii) the contracts
and agreements set forth on Schedule 1.1(b) (collectively, the "Business
Agreements");
(c) All books and records of Seller relating to the Health Care
Center; and
(d) All rights, claims, and causes of action against third parties
relating to the Health Care Center.
"Permitted Encumbrances" means (i) the Leasehold Mortgage and (ii) the liens
granted pursuant to the FUNB Security Documents (as defined in the Leasehold
Mortgage).
1.2 Liabilities. Purchaser assumes and agrees to discharge all
liabilities and obligations of Seller arising out of the operation of the
Health Care Center, whether incurred before or after the closing of the
transactions contemplated by this Agreement. Purchaser shall not assume any
liability or obligation that is not directly or indirectly related to the
operation of the Health Care Center.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Assets ("Purchase Price")
shall be an amount equal to the aggregate principal balance and accrued
interest under the Facility Loan. As payment in full of the Purchase Price,
Purchaser shall, and hereby does, release Seller of all of Seller's obligations
and liabilities pursuant to the Facility Loan, the Note and the Leasehold
Mortgage.
ARTICLE III
CLOSING
3.1 Closing Date. The Closing of the transactions contemplated by this
Agreement shall take place concurrently with the execution of this Agreement.
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3.2 Seller's Deliveries. At the Closing Seller shall deliver to Purchaser
the following:
(a) Copies of resolutions of the Board of Directors of Seller
authorizing the execution and performance of this Agreement and the
transactions contemplated hereby, certified by the secretary of Seller;
(b) Bills of sale, endorsements, assignments and other instruments of
transfer, all in such form as Purchaser reasonably requests, vesting in
Purchaser good and marketable title to the Assets, free and clear of all
Encumbrances.
3.3 Option Agreement. In consideration of the agreements of the parties
set forth in this Agreement, all obligations of all parties to the Option
Agreement are hereby terminated.
3.4 Further Assurances. Seller, at any time and from time to time after
the date of this Agreement, upon request of Purchaser, will do, execute,
acknowledge and deliver, all such further acts, deeds, assignments, transfers,
conveyances and assurances as may be reasonably required for the better
conveying, transferring, assigning and delivering to Purchaser, or to its
successors and assigns, and for aiding and assisting in collecting and reducing
to possession, all the Assets.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
4.1 Organization of Seller. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of South
Carolina.
4.2 Authority of Seller. Seller has the corporate power and authority to
execute, deliver and perform this Agreement. This Agreement has been duly
authorized, executed and delivered by Seller and is the legal, valid and
binding obligation of Seller enforceable in accordance with its terms.
4.3 Conflicts. Neither the execution and delivery of this Agreement or
the consummation of any of the transactions contemplated hereby nor compliance
with or fulfillment of the terms, conditions and provisions hereof will:
(a) conflict with, result in a breach of, the terms, conditions or
provisions of, or constitute a default, an event of default or an event
creating rights of acceleration, termination or cancellation or a loss of
rights under, or result in the creation or imposition of any Encumbrance
upon any of the Assets, under (1) the charter or By-laws of Seller, (2) any
material note, instrument, agreement, mortgage, lease, license, franchise,
permit or other authorization, right, restriction or obligation to which
Seller is a party or any of the Assets is subject or by which Seller is
bound, (3) any court order or injunction to which Seller is a party or any
of the Assets is subject or by which Seller is bound, or (4) any statute or
regulation affecting Seller or the Assets, or
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(b) require the approval, consent, authorization or act of, or the
making by Seller of any declaration, filing or registration with, any
person or entity.
4.3 Title to Property. Seller has good and marketable title to all of the
Assets, free and clear of all Encumbrances except Permitted Encumbrances. Upon
delivery to Purchaser of the instruments of transfer contemplated by Section
3.2, Seller will thereby transfer to Purchaser good and marketable title to all
of the Assets, free and clear of all Encumbrances except Permitted Encumbrances.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
5.1 Organization of Purchaser. Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of South Carolina.
5.2 Authority of Purchaser. Purchaser has full power and authority to
execute, deliver and perform this Agreement. This Agreement has been duly
authorized, executed and delivered by Purchaser and is the legal, valid
and binding agreement of Purchaser enforceable in accordance with its terms.
5.3 Conflicts. Neither the execution and delivery of this Agreement nor
the consummation of any of the transactions contemplated hereby nor compliance
with or fulfillment of the terms, conditions and provisions hereof will:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event
creating rights of acceleration, termination or cancellation or a loss of
rights under (1) the Articles of Organization or Operating Agreement of
Purchaser, (2) any material note, instrument, agreement, mortgage, lease,
license, franchise, permit or other authorization, right, restriction or
obligation to which Purchaser is a party or by which Purchaser is bound,
(3) any court order or injunction to which Purchaser is a party or by
which it is bound or (4) any statute or regulation affecting Purchaser, or
(b) require the approval, consent, authorization or act of, or
the making by Purchaser of any declaration, filing or registration with,
any person or entity.
ARTICLE VI
GENERAL PROVISIONS
6.1 Survival of Obligations. All representations, warranties, covenants
and obligations contained in this Agreement shall survive Closing and shall be
binding upon and inure to the
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successors and permitted assigns of the parties. The rights and obligations of
this Agreement may not be assigned, in whole or in part, by operation of law or
otherwise, without the express written consent of the parties, which consent is
not to be unreasonably withheld or delayed.
6.2 Entire Agreement; Waivers. This Agreement contains the entire
agreement between the parties and supersedes any and all written and verbal
prior and contemporaneous agreements and understandings between the parties.
The waiver of any term or condition of this Agreement must be in writing and
signed by the party waiving its rights. No waiver shall constitute a waiver of
any subsequent obligation or breach.
6.3 Counterparts. This Agreement may be executed in multiple
counterparts, all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date first above written.
SEA PINES SENIOR LIVING CENTER, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Its: President
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THE XXXXXX CENTER, L.L.C.
By: Tide Pointe Partners, its sole member
By: Sea Pines/Tide Pointe, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Its: President
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By: Providers Enterprises, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Its: Vice President
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