[FORM OF ASSET TRANSFER AGREEMENT/GENESIS PROPERTIES]
ASSET TRANSFER AGREEMENT
THIS ASSET TRANSFER AGREEMENT (this "Agreement") is made and
entered into as of ____________, 1997, (the "Effective Date") by and between
ELDERTRUST OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership or its
permitted assignees or contributees ("Transferee"), and
________________________________ ("Transferor").
WHEREAS, Transferor owns and operates an assisted living
facility known as ___________________ (the "Facility") which Facility consists
of certain real property, the improvements thereon and certain other real and
personal property associated therewith, all as more particularly described
below; and
WHEREAS, Transferor agrees to transfer to Transferee and
Transferee agrees to acquire from Transferor the Facility, including said real
and personal property, on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants set forth herein, Transferee and Transferor hereby
agree as follows:
ARTICLE I
THE ASSET TRANSFER
Subject to the terms and conditions set forth herein,
Transferor agrees to transfer to Transferee, and Transferee agrees to acquire
from Transferor, all of that property located in [city and state] and known as
[name of property]. The sale of said property shall be effected through the
transfer of certain of the assets and liabilities of Transferor to Transferee
pursuant to the provisions of this Article I and other applicable provisions of
this Agreement (the "Transaction").
1.1 Assets to be Acquired. On the Closing Date (as hereinafter
defined), in accordance with the terms and conditions set forth herein,
Transferor shall transfer to Transferee, and Transferee shall acquire from
Transferor, the following assets:
(i) all of that certain parcel of land described in Exhibit A
hereto (the "Real Property"), the buildings situated thereon and all of
the other improvements, easements, covenants and other rights
appurtenant thereto;
(ii) all furniture, furnishings, fixtures, machinery,
equipment, inventory and other tangible personal property, and
replacements thereof, owned by Transferor and now or hereafter affixed
to or located at the Facility [or used or useful in connection with the
operation, maintenance or repair of the Facility] (the "Personal
Property");
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(iii) all intangible property now or hereafter owned or held
by Transferor in connection with the Facility, including, without limitation,
(a) all licenses, permits, authorizations, approvals, [certificates of
occupancy] and all other approvals necessary for the current use and operation
of the Facility (to the extent assignable), and [(b) all right, title and
interest of Transferor in all books and records (including computer discs,
software and similar data),] trade names and development rights related to the
Facility, or any part thereof (collectively, the "Intangible Property") (items
(i) through (iii) are hereinafter referred to collectively as the "Property").
Notwithstanding the foregoing, the term "Property" shall not be deemed to
include, and Transferor shall not convey to Transferee hereunder, the assets of
Transferor listed on Schedule 1.1 hereof (the assets listed on Schedule 1.1
shall be known as the "Excluded Assets").
1.2 Purchase Price. The total consideration (the "Purchase
Price") to be paid by Transferee to Transferor for the Property shall be
immediately available funds to be paid to Transferor at the Closing in the
amount of $______________. The Purchase Price shall be allocated between real
and personal property as Transferor and Transferee shall agree; provided that
Transferor and Transferee hereby agree that not less than ninety percent (90%)
of the Purchase Price shall be allocated to the Real Property and the
improvements thereon.
1.3 No Liabilities to be Assumed by Transferee. Transferor and
Transferee agree that Transferee shall not assume any obligations of Transferor,
except obligations arising out of Permitted Liens (as hereinafter defined).
1.4 Lease of Property to Transferor. At Closing, Transferor
and Transferee shall enter into a lease agreement (the "Lease Agreement"),
substantially in the form of Exhibit B attached hereto and incorporated herein,
which shall provide for the lease of the Property by Transferee to Transferor or
an affiliate of Transferor on the terms and conditions set forth therein.
1.5 Closing. The closing of the Transaction (the "Closing")
shall occur simultaneously with the closing of the initial public offering (the
"IPO") of shares of beneficial interest in ElderTrust, a Maryland trust (the
"REIT"), provided that if the IPO has not occurred on or before March 31, 1998,
this Agreement shall terminate and neither party hereto shall have any further
liability to any other party hereto.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TRANSFEREE
Transferee hereby represents and warrants to Transferor as
follows:
2.1 Organization, Power and Authority, and Qualification.
Transferee is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Delaware. Transferee has the requisite
power and authority to carry on its business as it is now being conducted and to
engage in the Transaction. Transferee has made available to Transferor complete
and correct copies of the governing documents of Transferee with all amendments
as in effect on the date of this Agreement. Transferee is qualified to do
business and is in good standing in each jurisdiction where the character of its
property owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified and in good
standing would not have a material adverse effect on the business or financial
condition of Transferee.
2.2 Authority Relative to this Agreement. All action of
Transferee necessary to authorize the execution, delivery and performance of
this Agreement by Transferee has been taken, and no other proceedings on the
part of Transferee are necessary to authorize the execution and delivery of this
Agreement by Transferee and the consummation by Transferee of the Transaction.
Neither the execution and delivery of this Agreement by
Transferee nor the consummation by Transferee of the Transaction nor compliance
by Transferee with any of the provisions hereof will (i) conflict with or result
in any breach of any provisions of the partnership agreement of Transferee, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which Transferee is a party or by which it or
any of its properties or assets may be bound, or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Transferee or any
of the properties or assets of Transferee.
2.3 Binding Obligation. This Agreement has been duly and
validly executed and delivered by Transferee to Transferor and constitutes a
valid and binding agreement of Transferee, enforceable against Transferee in
accordance with its terms, except that such enforcement may be subject to
bankruptcy, conservatorship, receivership, insolvency, moratorium or similar
laws affecting creditors' rights generally or the rights of creditors of limited
partnerships and to general principles of equity.
2.4 Brokers. Transferee has not employed any broker or finder,
or incurred any liability therefor, in connection with the transaction
contemplated by this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRANSFEROR
Transferor hereby represents and warrants to Transferee as
follows:
3.1 Organization and Qualification. Transferor is a
_____________________ duly organized, validly existing and in good standing
under the laws of the State of ______________. Transferor has the requisite
power and authority to carry on its business as it is now being conducted and to
engage in the Transaction. Transferor has made available to Transferee complete
and correct copies of the governing documents of Transferor, with all amendments
as in effect on the date of this Agreement. Transferor is qualified to do
business and is in good standing in each jurisdiction where the character of its
property owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified and in good
standing would not have a material adverse effect on the business or financial
condition of Transferor or on the Transaction. Transferor is not a "foreign
person" under Section 1445 of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
3.2 Authority Relative to this Agreement. All action necessary
to authorize the execution, delivery and performance of this Agreement by
Transferor has been taken, and no other proceedings are necessary to authorize
the execution and delivery by Transferor of this Agreement and the consummation
by Transferor of the Transaction.
Neither the execution and delivery of this Agreement by
Transferor, nor the consummation by Transferor of the Transaction nor compliance
by Transferor with any of the provisions hereof will (i) conflict with or result
in any breach of any provisions of the organizational documents of Transferor,
(ii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, permit,
contract, agreement, easement, restriction or other instrument or obligation to
which Transferor is a party or by which Transferor or the Property may be bound,
or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Transferor or the Property, except in the case of (ii)
or (iii) for violations, breaches, or defaults (A) which would not in the
aggregate have a material adverse effect on the business or financial condition
of Transferor, the Transaction or the Property or (B) for which waivers or
consents have been obtained or, as listed on Schedule 3.2, will be obtained
prior to the Closing Date.
3.3 Binding Obligation. This Agreement has been duly and
validly executed and delivered by Transferor to Transferee and constitutes a
valid and binding agreement of Transferor, enforceable against Transferor in
accordance with its terms, except that such enforcement may be subject to
bankruptcy, conservatorship, receivership, insolvency, moratorium or similar
laws affecting creditors' rights generally or the rights of creditors of
_______________ and to general principles of equity.
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3.4 Brokers. Transferor has not employed any broker or finder,
or incurred any liability therefor, in connection with the transactions
contemplated by this Agreement.
3.5 Title to Property. Transferor has good and valid title to
the Personal Property. To Transferor's knowledge, the Property is not subject to
any imperfections in title, easements, liens, mortgages, encumbrances, pledges,
claims, charges, options, defects, preferential purchase rights or other
encumbrances (collectively referred to herein as "Liens") except for the
following ("Permitted Liens"):
(i) Liens for real property taxes and assessments or for
fire dues, library dues or similar assessments not
yet delinquent;
(ii) Liens that are not material in character, amount, or
extent and do not materially detract from the value,
or interfere with the use of, the Transferor's
assets subject thereto or affected thereby or
otherwise materially impair the business operations
being conducted or proposed to be conducted thereon;
(iii) the Mortgage Debt (as hereinafter defined); and
(iv) Liens shown on Schedule 3.5 hereto.
3.6 Debt. The Property is encumbered by the mortgage
indebtedness described on Schedule 3.6 hereto (the "Mortgage Debt"). To
Transferor's knowledge, there exists no default, or event which with the passage
of time or notice or both would constitute a default with respect to the
Mortgage Debt or any other debt of Transferor that has not been cured or that
would have a material adverse effect on the business or financial condition of
Transferor, the Transaction or the Property.
3.7 Financial Statements. The financial statements for the
Property attached as Schedule 3.7 hereto (the "Financial Statements") have been
prepared in accordance with GAAP applied on a consistent basis throughout the
periods specified. The balance sheets in the Financial Statements fairly present
the financial condition of the Property as of the dates shown, and the income
statements in the Financial Statements fairly present the results of operations
for the periods indicated.
3.8 Financial Condition. Since September 30, 1997, there has
been no material adverse change in the business or financial condition of
Transferor or the Property except to the extent the Multicare Acquisition would
be deemed to cause a material adverse change in the business or financial
condition of Transferor. For the purposes of this Agreement, the term "Multicare
Acquisition" means the transaction contemplated by that certain Agreement and
Plan of Merger among a 44% owned subsidiary of the Guarantor (as hereinafter
defined) ("Merger Sub") and The Multicare Companies, Inc. ("Multicare") pursuant
to which Merger Sub agreed to make a tender offer to purchase all of the
outstanding common shares of Multicare.
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3.9 Leases. Except as set forth on Schedule 3.9 hereto,
Transferor has not entered into any leases, tenancies or other rights of
occupancy in effect on the date hereof with respect to the Property. Each of the
leases referenced in Schedule 3.9 (the "Leases") has been delivered to or made
available to Transferee and is presently unamended (or with respect to each such
lease that has been amended, all amendments thereto have been delivered or made
available to Transferee), and, to Transferor's knowledge, are in full force and
effect without material default.
3.10 Contracts. To the knowledge of Transferor, Schedule 3.10
hereto sets forth all of the contracts or other understandings, written or oral,
to which Transferor is a party or by which Transferor is bound that relate to
the Property excluding contracts which are terminable on thirty (30) days or
less notice (collectively, the "Contracts", which term shall not be construed to
include any Leases). Each of the Contracts is valid and binding on Transferor
and is in full force and effect in all material respects. Except as set forth in
Schedule 3.10, neither Transferor nor, to Transferor's knowledge, any other
party thereto has breached or defaulted under the terms of any Contract, except
for such breaches or defaults that would not have a material adverse effect on
the business or operations of Transferor or the Property.
3.11 Permits. To the knowledge of Transferor, Transferor has
all such franchises, certificates, licenses, permits and other authorizations
from government political subdivisions, regulatory authorities or any other
person or entity (collectively "Permits") as are necessary for the ownership,
use, operation and licensing of the Property as it is currently being used,
except where the failure to possess such Permits would not have a material
adverse effect on the business or financial condition of Transferor or the
Property, and, to Transferor's knowledge, Transferor is not in violation of any
Permit and all Permits relating to the Property are valid and in full force and
effect.
3.12. Litigation. Other than as set forth on Schedule 3.12
attached hereto, there are no claims, actions, suits, proceedings or
investigations pending or, to Transferor's knowledge, threatened against
Transferor or any properties or rights of Transferor, that would have a material
adverse effect on the business or financial condition of Transferor, the
Transaction or the Property before any court or administrative, governmental or
regulatory authority or body, domestic or foreign, or any properties or rights
of Transferor. Neither Transferor nor the Property is subject to any order,
judgment, injunction or decree of any court, tribunal or other governmental
authority (other than generally applicable laws, rules and regulations) that
would have a material adverse effect on the business or financial condition of
Transferor or the Property.
3.13 Compliance with Laws. Transferor has not received any
written or other actual notice of any material violation of any applicable
zoning regulation or ordinance, or of any employment, environmental, or other
regulatory law, order, regulation or requirement, including applicable
subdivision laws, relating to the Property or the business or operations
thereon, which remains uncured and, to Transferor's knowledge, there are no such
violations which, individually or in the aggregate, would have a material
adverse effect on the business or financial condition of Transferor or the
Property.
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3.14 Taxes. Except for such matters as in the aggregate shall
not result in a material adverse effect on the business or financial condition
of Transferor, (i) all tax or information returns required to be filed on or
before the date hereof by or on behalf of Transferor have been filed through the
date hereof or will be filed on or before the Closing Date in accordance with
all applicable laws, (ii) there is no action, suit or proceeding pending
against, or with respect to, Transferor or the Property in respect of any tax
nor is any claim for additional tax asserted by any such authority, and (iii)
all taxes (including related penalties, interest and additional amounts) imposed
upon Transferor and required to be reported on a return required to be filed
(without regard to any applicable extensions) on or before the date hereof have
been paid or will be paid prior to the delinquency thereof.
3.15 Insurance. Transferor currently has in place the public
liability, casualty and other insurance coverage with respect to the Property as
is set forth in Schedule 3.15 hereto. To the knowledge of Transferor, each of
its insurance policies with respect to the Property is in full force and effect
and all premiums due and payable thereunder have been fully paid when due.
Transferor has not received from any insurance company notice of any material
defects or deficiencies affecting the insurability of the Property or notices of
cancellation or intent to cancel any such insurance.
3.16 Utilities. To the knowledge of Transferor, usable public
sanitary and storm sewers, public water, and gas and electrical utilities
(collectively, the "Public Utilities"), of adequate capacity for the operation
of the Property, are installed in, and are duly connected to, the Property and
can be used without any charge except the normal and usual metered charges
imposed for such Public Utilities. No amounts due and owing with respect to the
Property in connection with utilities, insurance, assessments or other charges
customarily prorated in real estate transactions have been outstanding more than
30 days.
3.17 Environmental. For the purpose of this Section 3.17, the
term "Hazardous Substances" shall mean substances defined as a "hazardous
waste," "hazardous substance," or "toxic substance" under any Environmental
Laws, including, without limitation, oil, petroleum, or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste. As used herein,
"Environmental Laws" shall include, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
ss. 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. ss.
6901, et seq., the Clean Air Act, 42 U.S.C. ss. 7401, et seq., the Clean Water
Act, 33 U.S.C. ss. 1251, et seq., the Toxic Substance Control Act, 15 U.S.C. ss.
2601, et seq. and the Occupational Safety and Health Act, 29 U.S.C. ss. 651, et
seq., as any of the preceding have been amended prior to the date of the
Closing, and any other federal, state or local law, ordinance, regulation, rule,
order, decision or permit relating to the protection of human health from
environmental effects of Hazardous Substances and which are applicable to the
Property.
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To Transferor's knowledge and except as may be revealed in the
Phase I Environmental Report prepared for the Property dated __________________,
(i) no Hazardous Substances are present in, on or under the Property that
require remediation under Environmental Law or would have a material adverse
affect on the condition (financial or otherwise), earnings, assets, business
affairs or business prospects of the Property, Transferor or the Transaction,
(ii) no liability under or violation of any Environmental Laws or condition that
could give rise to such liability or violation exists with respect to the
Property, except for liabilities that would not have a material adverse effect
on the business or financial condition of Transferor or the Property and (iii)
Transferor has not caused or allowed any discharge or disposal of any Hazardous
Substances at the Property except in compliance with Environmental Laws.
Transferor has not received any written notice from any governmental agency or
instrumentality having jurisdiction thereof of any violation of any
Environmental Laws which remains uncured or unremediated.
3.18 [INTENTIONALLY DELETED]
3.19 Pending Assessments and Eminent Domain. Transferor has no
knowledge and has received no notice of any pending proceeding for the
imposition of any special assessment, or the formation of a special assessment
district, or for a condemnation proceeding which would materially affect in any
manner any portion of the Property.
3.20 Compliance with Law; Approvals.
Except as set forth on Schedule 3.20:
(a) Transferor has operated the Property in compliance with
all applicable laws and regulations, including, without limitation, all laws,
regulations, orders and requirements promulgated by any governmental authority
or relating to consumer protection, equal opportunity, health, health care
industry regulation, third-party reimbursement (including, if applicable,
Medicare, Medicaid, fraud and abuse and workers compensation), environmental
protection, fire, zoning and building and occupational safety matters, except
for noncompliance that individually or in the aggregate would not, and in the
future will not, have a material adverse effect on the business or operations of
Transferor or the Property;
(b) Transferor has not received notice of any material
violation (or of any investigation, inspection, audit, or other proceeding by
any governmental authority involving allegations of any violation) of any
applicable law, or is in material default with respect to any applicable law and
to the knowledge of Transferor, no investigation, inspection, audit, or other
proceeding by any governmental authority involving allegations of violation of
any applicable law is threatened or contemplated.
3.21 Ground Lease. (i) The ground lease which creates a
leasehold interest in the Property (the "Ground Lease") is in full force and
effect, (ii) Transferor is not in material default under any of the terms,
conditions, covenants or provisions of the Ground Lease, (iii) neither
Transferor nor the landlord under the Ground Lease has commenced any action or
given or received any notice asserting a default thereunder or for the purpose
of terminating the Ground Lease and (iv) all rents, additional rents and other
sums due and payable under the Ground Lease by Transferor have been paid in
full.
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3.22 Governmental Proceedings. There is no governmental action
or governmental proceeding (zoning or otherwise) or governmental investigation
pending or, to Transferor's knowledge, threatened against or relating to the
Property or the transactions contemplated by this Agreement.
3.23 No Agreements. Except as set forth in Transferor's
organizational documents or as set forth on Schedule 3.23, other than the
Leases, the Property is not subject to any outstanding agreement of sale or
lease, option to purchase or other right of any third party to acquire any
interest therein.
ARTICLE IV
COVENANTS AND AGREEMENTS OF TRANSFEROR
Transferor hereby covenants and agrees with Transferee that
prior to the date of the Closing:
4.1 Actions Affecting Assets. Except in the ordinary course of
business, Transferor shall not sell, assign, pledge, transfer or encumber the
Property or any portion thereof, or, enter into any other material consent,
commitment, understanding or other agreement, or incur any material obligation
or liability (contingent or absolute) with respect to the Property. Transferor
shall not merge or consolidate with or into any other entity or enter into any
agreements relating thereto without Transferee's prior consent.
4.2 Access to Property and Records. Upon reasonable notice and
during regular business hours, Transferor shall give Transferee and Transferee's
authorized representatives full access to the Property and Transferor's
personnel and all properties, documents, contracts, facilities, books, equipment
and records of Transferor relating to the Property to conduct its
investigations, including, without limitation, surveys, site analyses, soil
tests, engineering studies, and other investigations.
4.3 Permits. Transferor shall maintain all Permits in full
force and effect, and will file timely all reports, statements, renewal
applications and other filings, and will pay timely all fees and charges in
connection therewith that are required to keep the Permits in full force and
effect.
4.4 Contracts. Transferor will not enter into any new
Contracts with respect to the Property except in the ordinary course of the
business of the operation of the Facility.
4.5 Insurance. Transferor shall maintain in full force and
effect substantially the same public liability and casualty insurance coverage
now in effect with respect to the Property.
4.6 Taxes and Assessments. Transferor shall pay or discharge
before delinquent all tax liabilities and obligations, including without
limitation those for federal, state or local income, property, unemployment,
withholding, sales, transfer, stamp, documentary, use and other taxes.
4.7 Binding Commitments. Transferor shall not make any
commitments or representations to any applicable government authorities, any
adjoining or surrounding property owners, any civic association, any utility or
any other similar person or entity that would in any manner be binding upon
Transferee or the Property without Transferee's prior consent, except such
agreements that would not have a material adverse effect on the Property.
4.8 Compliance with Law. The operations of Transferor and the
Property will be conducted in compliance with all applicable laws, including,
without limitation, all such laws regulations, orders and requirements
promulgated by any governmental authority or relating to consumer protection,
equal opportunity, health, health care industry regulation, third party
reimbursement (including, if applicable, Medicare, Medicaid, fraud and abuse,
and workers compensation), environmental protection, fire, zoning and building
and occupational safety matters, except for noncompliance that individually or
in the aggregate would not and, insofar as may reasonably be foreseen, in the
future will not, have a material adverse effect on the business or operations of
Transferor or the Property.
4.9 Operation of Property. Transferor shall operate and
maintain the Property in the same manner as Transferor has heretofore operated
the Property and consistent with other assisted living facilities operated or
managed by Guarantor or affiliates thereof.
ARTICLE V
CONDITIONS TO CONSUMMATION
OF TRANSACTION BY TRANSFEREE
The obligation of Transferee to consummate the Transaction
shall be subject to fulfillment (or waiver) at or prior to the date of the
Closing of the following conditions:
5.1 Representations, Warranties and Covenants. The
representations, warranties and covenants made by Transferor in this Agreement
or in any document delivered by Transferor pursuant to this Agreement shall be
true and correct in all material respects when made and on and as of the date of
the Closing as though such representations, warranties and covenants were made
on and as of such date.
5.2 No Material Adverse Change. There shall have been no
material adverse change in the value or condition of the Property since the date
hereof, except for changes contemplated by this Agreement and changes in the
ordinary course of business which do not have a material adverse effect on the
business or financial condition of the Property.
5.3 Title Insurance. Commonwealth Land Title Insurance Company
(the "Title Company") shall have issued to Transferee an ALTA owners title
insurance policy effective as of the date of the Closing or an unconditional
commitment therefor insuring fee simple title to the Property to be vested in
Transferee in the full amount of the Purchase Price, subject to no exceptions
other than Permitted Liens (other than the Mortgage Debt), with such
endorsements and otherwise in form acceptable to Transferee in its sole and
absolute discretion.
5.4 No Order or Injunction. The consummation of the
Transaction shall not have been restrained, enjoined or prohibited by any order
or injunction of any court or governmental authority of competent jurisdiction
nor shall there be any pending or threatened condemnation proceeding with
respect to the Property or any portion thereof.
5.5 Instruments of Conveyance. Transferor shall have delivered
the instruments referred to in Section 7.1.
5.6 Consents. All consents listed on Schedule 3.2 or otherwise
necessary for the consummation of the Transaction by Transferor shall have been
obtained.
5.7 IPO Closing. The IPO shall close simultaneously with the
Transaction.
5.8 Simultaneous Closing. The Transaction shall close
simultaneously with the closings under the agreements listed on Schedule 5.8
hereof.
ARTICLE VI
CONDITIONS TO CONSUMMATION
OF TRANSACTION BY TRANSFEROR
The obligation of Transferor to consummate the Transaction
shall be subject to fulfillment (or waiver) at or prior to the date of the
Closing of the following conditions:
6.1 Representations, Warranties and Covenants. The
representations, warranties and covenants made by Transferee in this Agreement
or in any document delivered by Transferee pursuant to this Agreement shall be
true and correct in all material respects when made and on and as of the date of
the Closing as though such representations, warranties and covenants were made
on and as of such date.
6.2 Consents. All consents necessary for the consummation of
the Transaction by Transferee shall have been obtained.
6.3 IPO Closing. The IPO shall close simultaneously with the
Transaction.
6.4 Simultaneous Closing. The Transaction shall close
simultaneously with the closings under the agreements listed on Schedule 5.8
hereof.
ARTICLE VII
THE CLOSING
Subject to the terms and conditions of this Agreement, the
Closing shall take place promptly after satisfaction or waiver of the conditions
set forth in Articles V and VI hereof.
7.1 Closing Deliveries. At Closing, Transferor shall deliver
or cause to be delivered the following:
(a) a special warranty deed conveying good and
marketable fee simple title to the Property (subject only to
the Permitted Liens);
(b) a xxxx of sale pursuant to which Transferor shall
convey to Transferee good title to all the Personal Property,
free and clear of all liens and encumbrances (other than
Permitted Liens);
(c) a certification duly executed by Transferor under
penalty of perjury, setting forth Transferor's address and
Federal tax identification number and certifying that
Transferor is not a "foreign person" under Section 1445 (as
may be amended) of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder;
(d) such assignment agreements as may be deemed
necessary and appropriate by Transferee and Transferor
pursuant to which Transferor shall assign to Transferee all
other assets (other than the Excluded Assets) owned by
Transferor that are used or useful in connection with the
operation of the Property, including, without limitation, the
Permits (to the extent assignable) and the Intangible
Property;
(e) a certificate from a duly authorized agent of
Transferor certifying that the representations and warranties
of Transferor set forth herein are true and correct in all
material respects as of the Closing Date;
(f) the Lease Agreement duly executed by Transferor
or an affiliate of Transferor;
(g) a payoff letter or other instrument from the
holder of the Mortgage Debt sufficient to enable the Title
Company to issue the title insurance policy required by
Section 5.3 hereof without any exception for the Mortgage
Debt; and
(h) the Guaranty described in Section 10.11 hereof
duly executed by Genesis;
(i) the Indemnification Agreement described in
Section 10.11 hereof duly executed by Genesis; and
(j) such other documents and instruments as
Transferee and Transferor agree are necessary or appropriate.
7.2 Closing Deliveries by Transferee. At Closing, Transferee
shall deliver or cause to be delivered the following:
(a) the Purchase Price;
(b) a certificate from a duly authorized officer of
Transferee certifying that the representations and warranties
of Transferee set forth herein are true and correct in all
material respects as of the Closing Date;
(c) the assignment agreements referenced in Section
7.1(d) above;
(d) the Lease Agreement, duly executed by Transferee;
and
(e) such other documents and instruments as
Transferor and Transferee agree are necessary or appropriate.
7.3 Closing Costs. Transferee and Transferor shall each pay
one-half (1/2) of documentary and transfer fees imposed on or in connection with
the Transaction. Transferee agrees to pay all other costs associated with the
Closing, including (i) survey costs and (ii) costs of obtaining a title
insurance policy for the benefit of Transferee and (iii) all recording fees and
charges. Each party shall pay its own legal fees.
7.4 Prorations. Transferor and Transferee agree that charges,
credits and adjustments shall be made as of the Closing Date, and a statement
setting forth such adjustments shall be initialed by the parties. The subject
areas of such adjustments shall include:
(a) Real estate, personal property and similar taxes
and assessments (general and special, ordinary and extraordinary) that
have become or may become a lien on the Property;
(b) Charges for public utilities servicing the
Property, payments under the Contracts, charges under easements and
similar agreements affecting the Property;
(c) Insurance premiums, if any, to the extent
policies are assumed by Transferee;
(d) All other charges and fees customarily prorated
and adjusted in similar transactions.
The parties shall prorate on the best available
information; all adjustments that cannot be determined precisely as of the
Closing Date shall be readjusted as soon as practicable. Transferor shall use
its best efforts to have all utility meters read as of the Closing Date. To the
extent practicable, as Transferor and Transferee agree as appropriate, such
prorations may occur outside the Closing by arrangement with the vendor or
supplier of services (e.g., utilities). Any prorations which are the obligation
of Transferee will be assumed by the lessee under the Lease Agreement.
7.5 Possession. At Closing, Transferor shall deliver
possession of the Property to Transferee (subject to the rights of tenants under
the Leases), the Property to be in the same condition and repair as on the date
hereof, reasonable wear and tear excepted.
ARTICLE VIII
REMEDIES ON DEFAULT
8.1 Transferor's Remedies. Except for any breaches waived in
writing by Transferor, if Transferee fails to consummate the Transaction when
required to do so pursuant to the provisions hereof, then Transferor shall be
entitled to terminate this Agreement, whereupon this Agreement shall terminate
and, in addition thereto, Transferee shall reimburse Transferor for all
reasonable costs incurred by Transferee in connection with the Transaction,
provided that the amount to be reimbursed by Transferee shall not exceed One
Hundred Thousand Dollars ($100,000).
8.2 Transferee's Remedies. Except for any breaches waived in
writing by Transferee, if Transferor has breached any of its covenants or
obligations under this Agreement or has failed, refused or is unable to
consummate the Transaction by the date of the Closing when and as required to do
so hereunder, then Transferee shall have the right to bring an action at law or
in equity seeking the specific performance of the obligations of Transferor
hereunder and in addition thereto or in lieu thereof, Transferee may avail
itself of any other remedies available at law or in equity on account of such
breach, provided, however, except as provided in Section 10.1 the amount of
money damages that Transferee may recover from Transferor on account of such
breach shall not exceed One Hundred Thousand Dollars ($100,000).
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Transferor. Transferor hereby
indemnifies and agrees to defend and hold harmless Transferee, and its officers,
directors, employees, agents and successors and assigns, and its general
partners and any officers, trustees, directors, employees, agents and successors
and assigns of such general partners ("Transferee Indemnitees"), from and
against any and all demands, claims, actions or causes of action, assessments,
expenses, costs, damages, losses and liabilities (including attorneys' fees and
other charges) which may at any time be asserted against or suffered by any
Transferee Indemnitee, the Property, or any part thereof, whether before or
after the date of the Closing, as a result of, on account of or arising from (a)
the failure of Transferor to perform any of its obligations hereunder or, to the
extent provided in Section 10.1, the breach by Transferor of any of its
representations and warranties made herein, (b) events, contractual obligations,
acts or omissions of Transferor that occurred in connection with the ownership
or operation of the Property prior to the Closing, (c) damage to property or
injury to or death of any person or any claims for any debts or obligations
occurring on or about or in connection with the Property or any portion thereof
or with respect to the operation of the Property at any time or times prior to
the Closing, or (d) any obligation, claim, suit, liability, contract, agreement,
debt or encumbrance (other than Permitted Liens) created, arising or accruing
prior to the date of the Closing, regardless of when asserted, relating to the
Property or its operation, including, without limitation, any and all
liabilities for federal or state income taxes or other taxes, which shall not
have been set forth or specifically described in this Agreement or the Schedules
and the Exhibits hereto. The obligations of Transferor under this Section 9.1
shall survive the Closing.
9.2 Indemnification by Transferee. Transferee hereby
indemnifies and agrees to defend and hold harmless Transferor, and its officers,
directors, employees, agents and successors and assigns ("Transferor
Indemnitees"), from and against any and all demands, claims, actions or causes
of action, assessments, expenses, costs, damages, losses and liabilities
(including attorneys' fees and other charges) which may at any time be asserted
against or suffered by any Transferor Indemnitee, whether before or after the
date of the Closing, as a result of, on account of or arising from (a) the
failure of Transferee to perform any of its obligations hereunder or, to the
extent provided in Section 10.1, the breach by Transferee of any of its
representations and warranties made herein, (b) events, contractual obligations,
acts or omissions of Transferee that occurred in connection with the ownership
or operation of the Property subsequent to the Closing, (c) damage to property
or injury to or death of any person or any claims for any debts or obligations
occurring on or about or in connection with the Property or any portion thereof
or with respect to the operation of the Property at any time or times subsequent
to the Closing, or (d) any damage to the Property caused by Transferee in
connection with any studies, investigations or tests conducted by Transferee
pursuant to Section 4.2 hereof. The obligations of Transferee under this Section
9.2 shall survive the Closing.
ARTICLE X
GENERAL PROVISIONS
10.1 Survival of Liability with Respect to Representations and
Warranties. It is the express intention and agreement of the parties that the
representations and warranties of Transferee and Transferor set forth in this
Agreement shall survive the consummation of the Transaction for a period of one
(1) year from the date of the Closing except in the case of the representations
and warranties set forth in Section 3.17 hereof which shall survive the
consummation of the Transaction for a period of two (2) years from the date of
the Closing. Such representations and warranties shall expire and be terminated
and extinguished forever at the expiration of such period except where written
notice of a claim for breach shall have been delivered prior to the expiration
of such period. Any written notice given within such period setting forth a
claim must set forth the nature and details of the claim with specificity.
Transferor's liability for a breach of a representation and warranty shall not
be subject to the limitation of liability set forth in Section 8.2 hereof;
provided, however, the maximum amount that Transferee or its assigns may recover
for a breach of a representation and warranty by Transferor hereunder shall not
exceed $_________________ [20% of Purchase Price].
10.2 Notices. All notices, demands, requests or other
communications which may be or are required to be given or made by either
Transferor or Transferee to the other pursuant to this Agreement shall be in
writing and shall be hand delivered or transmitted by certified mail, express
overnight mail or delivery service, telegram, telex or facsimile transmission to
the parties at the following addresses:
If to Transferor: _______________________________
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Attention: Law Department: Xxx X. Xxxxxxxxx, Esq.
If to Transferee: ElderTrust Operating Limited Partnership
c/o ElderTrust
General Partner
000 XxXxxxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
or such other address as the addressee may indicate by written notice to the
other party.
Each notice, demand, request or communication which shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the delivery receipt, the affidavit of messenger or (with respect to a telex)
the answerback being deemed conclusive but not exclusive evidence of such
delivery) or at such time as delivery is refused by the addressee upon
presentation.
10.3 Governing Law. This Agreement, the rights and obligations
of the parties hereto and any claims or disputes relating thereto shall be
governed by and construed under the laws of Pennsylvania (but not including the
choice of law rules thereof).
10.4 Benefit and Assignment. No party hereto shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of Transferor (if the assignor is Transferee)
or Transferee (if the assignor is Transferor), which consent shall not be
unreasonably withheld, and any purported assignment contrary to the terms hereof
shall be null, void and of no force and effect, provided that Transferee may (i)
assign this Agreement and its rights hereunder, to a corporation, partnership,
limited liability company or other entity of which the entire ownership interest
is owned directly or indirectly by Transferee or its affiliates without the
consent of Transferor or (ii) contribute the Property, or any portion thereof,
to a corporation, partnership, limited liability company or other entity in
exchange for 100% of the ownership interests in such entity; no such assignment
or contribution shall relieve Transferee of its obligations hereunder.
This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and assigns
as permitted hereunder. No person or entity other than the parties hereto is or
shall be entitled to bring any action to enforce any provision of this Agreement
against any of the parties hereto, and the covenants and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors and assigns as permitted
hereunder.
10.5 Severability. If any part of any provision of this
Agreement or any other agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, such part shall be ineffective to the extent of such invalidity
or unenforceability only, without in any way affecting the remaining parts of
such provisions or the remaining provisions of said agreement so long as the
economic and legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party.
10.6 Entire Agreement; Amendment. This Agreement and the
Exhibits and Schedules attached hereto (each of which shall be deemed
incorporated herein and made a part hereof) contain the final and entire
agreement between the parties hereto with respect to the Transaction and are
intended to be an integration of all prior negotiations and understandings.
Transferor and Transferee shall not be bound by any terms, conditions,
statements, warranties or representations, oral or written, not contained or
referred to herein or therein. No amendment, change or modification of this
Agreement shall be valid unless the same is in writing and signed by the parties
hereto.
10.7 No Waiver. No delay or failure on the part of any party
hereto in exercising any right, power or privilege under this Agreement or under
any other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial exercise
of any such right, power or privilege shall preclude the further exercise of
such right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom enforcement
of such waiver is sought and then only to the extent expressly specified
therein.
10.8 Headings. Section and subsection headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
10.9 Risk of Loss. The risk of loss or damage to all or any
part of the Property by fire or other casualty prior to the Closing shall be
borne by Transferor. In the event of such damage to all or part of the Property,
Transferee may, at its election, (i) terminate this Agreement whereupon neither
party shall have any further liability to the other hereunder or (ii) consummate
the Transaction, in which event Transferor shall assign to Transferee at Closing
all of Transferor's right, title and interest in and to all of the proceeds of
insurance payable by virtue of such casualty.
10.10 Counterparts. To facilitate execution, this Agreement
may be executed in as many counterparts as may be required. It shall not be
necessary that the signature of or on behalf of each party appears on each
counterpart, but it shall be sufficient that the signature of or on behalf of
each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of all of the
parties.
10.11 Guaranty. Genesis Health Ventures, Inc. ("Genesis")
shall indemnify Transferee or its assigns or contributees for loss or damage due
to a breach by Transferor of one or more of the representations and warranties
made by Transferor herein on the terms set forth in a certain Indemnification
Agreement to be executed and delivered by Genesis at Closing to and for the
benefit of Transferee or its assigns or contributees, which Indemnification
Agreement shall be substantially in the form of Exhibit C attached hereto and
made a part hereof. In addition thereto, at Closing, Genesis shall execute and
deliver for the benefit of Transferee and its assigns a guaranty of the
obligations of Transferor or its assigns under the Lease Agreement, which
guaranty shall be substantially in the form of Exhibit D attached hereto and
made a part hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed on
its behalf as of the date first above written.
TRANSFEREE:
ELDERTRUST OPERATING LIMITED PARTNERSHIP
By: ElderTrust Realty Group, Inc.,
general partner
By:
---------------------------
Name:
--------------------------
Title:
--------------------------
TRANSFEROR:
By:
---------------------------
Name:
--------------------------
Title:
--------------------------
Exhibits and Schedules
Exhibit A - Legal Description of Real Property
Exhibit B - Form of Lease Agreement
Exhibit C - Form of Indemnification Agreement
Exhibit D - Form of Lease Agreement Guaranty
Schedule 1.1 - Excluded Assets
Schedule 3.2 - Required Consents
Schedule 3.5 - Liens
Schedule 3.6 - Mortgage Debt
Schedule 3.7 - Financial Statements
Schedule 3.9 - Leases
Schedule 3.10 - Contracts
Schedule 3.12 - Litigation
Schedule 3.15 Insurance
Schedule 3.20 - Non-Compliance
Schedule 3.23 - Agreements
Schedule 5.8 - Concurrent Agreements
EXHIBIT A
DESCRIPTION OF THE REAL PROPERTY
EXHIBIT B
FORM OF LEASE AGREEMENT
EXHIBIT C
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of
___, 1998 by GENESIS HEALTH VENTURES, INC., a Pennsylvania corporation
("Indemnitor"), to and for the benefit of ELDERTRUST OPERATING LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Operating Partnership"), and
its successors and assigns (collectively, "Indemnitees").
WHEREAS, __________________________ ("Transferor") and the Operating
Partnership have entered into an asset transfer agreement (the "Transfer
Agreement") dated as of __________________, 1998;
WHEREAS, pursuant to the Transfer Agreement, the Operating Partnership
or a subsidiary of the Operating Partnership shall acquire from the Transferor
[an assisted living facility/skilled nursing facility/independent living
facility/office building] (the "Facility"), together with associated real and
personal property as described in the Transfer Agreement on the terms and
conditions set forth in the Transfer Agreement;
WHEREAS, Indemnitor, as the owner, directly or indirectly, of all of
the beneficial interest in Transferor, will be greatly benefited by the transfer
of the Facility to the Operating Partnership pursuant to the Transfer Agreement;
WHEREAS, in Article III of the Transfer Agreement, the applicable
Transferor has made certain representations and warranties to the Operating
Partnership and Indemnitor has agreed to indemnify the Operating Partnership in
the event of a breach of a representation and warranty set forth in the Transfer
Agreement by Transferor;
WHEREAS, the Operating Partnership would not have entered into the
Transfer Agreement without the execution and delivery of this Agreement by
Indemnitor; and
WHEREAS, in accordance with the Transfer Agreement, the Operating
Partnership assigned the Transfer Agreement to ________________________
("Transferee").
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Indemnitor hereby agrees for the
benefit of Indemnitees as follows:
1. Representations and Warranties of Indemnitor
(a) Indemnitor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Pennsylvania.
Indemnitor has the requisite power and authority to carry on its business as it
is now being conducted and to perform its obligations hereunder. Indemnitor is
qualified to do business and is in good standing in each jurisdiction where the
character of its property owned or leased or the nature of its activities makes
such qualification necessary, except where the failure to be so qualified and in
good standing would not have a material adverse effect on the business or
financial condition of Indemnitor.
(b) All action of Indemnitor necessary to authorize the
execution, delivery and performance of this Agreement by Indemnitor has been
taken, and no other proceedings on the part of Indemnitor are necessary to
authorize the execution and delivery of this Agreement by Indemnitor and the
performance by Indemnitor of its obligations hereunder.
Neither the execution and delivery of this Agreement by
Indemnitor nor the performance by Indemnitor of its obligations hereunder nor
compliance by Indemnitor with any of the provisions hereof will (i) conflict
with or result in any breach of any provisions of the organizational documents
of Indemnitor, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which Indemnitor is a
party or by which it or any of its properties or assets may be bound, or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Indemnitor or any of the properties or assets of Indemnitor.
(c) This Agreement has been duly and validly executed and
delivered by Indemnitor and constitutes a valid and binding agreement of
Indemnitor, enforceable against Indemnitor in accordance with its terms, except
that such enforcement may be subject to bankruptcy, conservatorship,
receivership, insolvency, moratorium or similar laws affecting creditors' rights
generally or the rights of creditors of corporations and to general principles
of equity.
(d) None of the representations and warranties made by
Transferor in the Transfer Agreement contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements therein
not misleading.
2. Indemnification
Indemnitor hereby indemnifies and agrees to hold harmless the
Operating Partnership, Transferee and their successors and assigns from and
against all demands, claims, actions or causes of action, assessments, expenses,
damages, costs, losses and liabilities (including attorneys' fees and
disbursements) which may at any time be suffered by the Operating Partnership,
Transferee or its successors and assigns as a result of (i) the inaccuracy of
any representation or warranty made by Transferor in the Transfer Agreement or
(ii) the inaccuracy of any representation or warranty made by Indemnitor in
Section 1 of this Agreement.
3. Survival Period; Limitation on Liability
(a) The indemnification obligation of Indemnitor set forth
herein shall be limited to the survival period set forth in the Transfer
Agreement with the effect that the obligations of Indemnitor set forth herein
shall terminate and be of no further force and effect (i) one (1) year after the
Closing Date (as defined below) in the case of a breach of any representation
and warranty set forth in Article III of the Transfer Agreement except Section
3.17 of the Transfer Agreement, (ii) two (2) years after the Closing Date in the
case of a breach of a representation and warranty set forth in Section 3.17 of
the Transfer Agreement and (iii) one (1) year after the Closing Date in the case
of a breach of a representation and warranty set forth in Section 1 of this
Agreement (in any such case, a "Termination Date"). Any claim for a breach of a
representation and warranty must be made in writing before the applicable
Termination Date. The "Closing Date" shall be the date of the closing of the
initial public offering of ElderTrust, a Maryland real estate investment trust,
which is anticipated to occur simultaneously with the closing under the Transfer
Agreement.
(b) Notwithstanding anything herein to the contrary, liability
of Indemnitor hereunder shall not exceed [20% of Purchase Price under the
Transfer Agreement].
4. Notice
Except as otherwise expressly provided herein, all notices,
demands, requests, or other communications which may be or are required to be
given, served or sent by any party to any other party pursuant to this Agreement
shall be in writing and shall be hand delivered, mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or
delivered by overnight air courier, addressed as follows:
(a) If to Indemnitor:
Genesis Health Ventures, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Attention: Law Department, Xxx X. Xxxxxxxxx, Esq.
(b) If to the Operating Partnership or Transferee:
ElderTrust Operating Limited Partnership
c/o ElderTrust
000 XxXxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt or the affidavit of messenger being
deemed conclusive but not exclusive evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.
5. Benefit and Assignment
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns as
permitted hereunder. No person or entity other than the parties hereto is or
shall be entitled to bring any action to enforce any provision of this Agreement
against any of the parties hereto, and the covenants and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors and assigns as permitted
hereunder. Indemnitor may not assign this Agreement or any rights hereunder
without the prior written consent of the Operating Agreement; the Operating
Partnership may not assign this Agreement without the prior written consent of
Indemnitor except that, in connection with the assignment by the Operating
Partnership of the Transfer Agreement in accordance with the terms of the
Transfer Agreement or contribution of the Facility by the Operating Partnership
in accordance with the terms of the Transfer Agreement, the Operating
Partnership may assign this Agreement in connection with any such assignment or
contribution.
6. Entire Agreement: Amendment
This Agreement contains the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior oral or
written agreements, commitments or understandings with respect to such matters.
This Agreement may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
7. Headings
The headings of the sections and subsections contained in this
Agreement are inserted for convenience only and do not form a part or affect the
meaning, construction or scope thereof.
8. Applicable Law; Consent to Jurisdiction
This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania (but not including
the choice of law rules thereof).
IN WITNESS WHEREOF, Indemnitor has caused this Indemnification
Agreement to be executed by its duly authorized agents as of the date and year
set forth above.
GENESIS HEALTH VENTURES, INC.
By:
---------------------------
Name:
--------------------------
Title:
--------------------------
EXHIBIT D
FORM OF LEASE AGREEMENT GUARANTY
GUARANTY OF LEASE
THIS GUARANTY OF LEASE is made as of , 1998 by GENESIS HEALTH VENTURES,
INC., a Pennsylvania corporation ("Guarantor") having an address of: 000 Xxxx
Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, 00000, to and for the benefit of
_______________________________________ (the "Landlord") having an address of:
c/o ElderTrust, 000 XxXxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx
00000.
RECITALS:
A. Landlord has leased to _______________________________ a
and subsidiary of Guarantor ("Tenant") certain real property located in ,
as is more particularly described on Exhibit A attached hereto (the
"Premises"), pursuant to that certain Lease Agreement by and between Landlord
and Tenant dated of even date herewith (the "Lease").
B. All of the ownership interests in Tenant are owned directly or
indirectly by Guarantor, and therefore Guarantor is materially benefited by the
Lease.
C. The undertaking by Guarantor to execute and deliver this Guaranty is
a material inducement to Landlord to enter into the Lease, and, except for this
Guaranty, Landlord would not enter into the Lease with Tenant.
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor agrees with Landlord as follows:
1. Guaranty. Guarantor hereby guarantees and agrees to be personally
liable for any and all sums payable under the Lease by Tenant and for the full
performance and observance of each and every covenant and agreement of Tenant
contained in the Lease (including all exhibits thereto) to the same extent as if
Guarantor were the tenant under the Lease and had executed and delivered the
Lease (including all exhibits attached thereto). Guarantor unconditionally and
irrevocably guarantees that all sums stated in the Lease to be payable by Tenant
will be promptly paid in full when due in accordance with the Lease and that
Tenant will perform and observe each and every covenant and agreement in the
Lease required to be performed and observed by Tenant. This Guaranty is
irrevocable, unconditional and absolute, and if for any reason any such sums
shall not be paid promptly when due, Guarantor will promptly after notice
thereof and within the time period set forth in the Lease for the making of
payment of any such sums, pay the same to the person entitled thereto pursuant
to the Lease regardless of (a) whether Landlord shall have taken any steps to
enforce any rights against Tenant or any other person liable therefor to collect
such sum or any part thereof, (b) the termination of the Lease as a result of
the default of Tenant thereunder, or (c) any other condition or contingency
which would not exonerate Guarantor from liability under the Lease if it were
the tenant thereunder. Guarantor also agrees to pay to Landlord such further
amounts as shall be sufficient to cover the cost and expense of collecting such
sums or any part thereof or of otherwise enforcing this Guaranty, including,
without limitation, reasonable attorneys' fees.
2. No Impairment. The obligations, covenants and agreements of
Guarantor under this Guaranty shall in no way be affected or impaired by reason
of the happening from time to time of any of the following, although without
notice to or the further consent of Guarantor:
(a) the waiver by Landlord of the performance or observance by
Guarantor, Tenant or any other party of any of the agreements, covenants or
conditions contained in the Lease or this Guaranty;
(b) the extension, in whole or in part, of the time for
payment by Guarantor or Tenant of any sums owing or payable under the Lease or
this Guaranty, or of any other sums or obligations under or arising out of or on
account of the Lease or this Guaranty, or the renewal of the Lease or this
Guaranty;
(c) any assignment of the Lease or subletting of the Premises
or any part thereof, subject to the provisions of Xxxxxxx 00 xxxxxxxxxxx;
(x) the modification or amendment (whether material or
otherwise) of any of the obligations of Guarantor or Tenant under the Lease or
this Guaranty;
(e) the doing or the omission of any of the acts referred to
in the Lease or this Guaranty (including, without limitation, the giving of any
consent referred to therein);
(f) any failure, omission or delay on the part of Landlord to
enforce, assert or exercise any right, power or remedy conferred on or available
to Landlord in or by the Lease or this Guaranty, or any action on the part of
Landlord granting indulgence or extension in any form whatsoever;
(g) the voluntary or involuntary liquidation, dissolution,
sale of all or substantially all of the assets, marshaling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceeding affecting Tenant or Guarantor or
any of its assets; or
(h) the release of Guarantor or Tenant from the performance or
observance of any of the agreements, covenants, terms or conditions contained in
the Lease or this Guaranty by operation of law.
3. Warranties and Representations. Guarantor warrants and represents to
Landlord for the express purpose of inducing Landlord to enter into the Lease
and to accept this Guaranty, as follows:
(a) Organization and Qualification. Guarantor is a corporation
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. Guarantor has the requisite power and authority to
carry on its business as it is now being conducted and to deliver this Guaranty.
Guarantor has made available to Landlord complete and correct copies of the
governing documents of Guarantor, with all amendments as in effect on the date
of this Guaranty. Guarantor is qualified to do business and is in good standing
in each jurisdiction where the character of its property owned or leased or the
nature of its activities makes such qualification necessary, except where the
failure to be so qualified and in good standing would not have a material
adverse effect on the business or financial condition of Guarantor or on this
Guaranty.
(b) Authority Relative to this Guaranty. All action necessary
to authorize the execution, delivery and performance of this Guaranty by
Guarantor has been taken, and no other proceedings are necessary to authorize
the execution and delivery by Guarantor of this Guaranty and the Guarantor's
performance hereunder.
Neither the execution and delivery of this Guaranty by
Guarantor, nor the compliance by Guarantor with any of the provisions hereof
will (i) conflict with or result in any breach of any provisions of the
organizational documents of Guarantor, (ii) result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, permit, contract, Guaranty, restriction or other
instrument or obligation to which Guarantor is a party or by which Guarantor may
be bound, or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Guarantor, except in the case of (ii) or (iii) for
violations, breaches, or defaults which would not in the aggregate have a
material adverse effect on the business or financial condition of Guarantor.
(c) Binding Obligation. This Guaranty has been duly and
validly executed and delivered by Guarantor to Landlord and constitutes a valid
and binding Guaranty of Guarantor, enforceable against Guarantor in accordance
with its terms, except that such enforcement may be subject to bankruptcy,
conservatorship, receivership, insolvency, moratorium or similar laws affecting
creditors' rights generally or the rights of creditors of Guarantor and to
general principles of equity.
(d) Solvency. Guarantor is solvent and is not rendered
insolvent by the obligations undertaken in this Guaranty. Guarantor is not
contemplating either the filing of a petition or proceeding under any state or
federal bankruptcy or insolvency or reorganization laws or the liquidating of
all or a major portion of Guarantor's property, and Guarantor has no knowledge
of any such petition or proceeding being filed against such Guarantor.
4. Governing Law. This Guaranty shall be construed in accordance with
the laws of the State of ____________________ (but not including the choice of
law rules thereof).
5. No Oral Change. This Guaranty may not be modified or amended except
by a written agreement duly executed by Guarantor and Landlord.
6. Primary Liability. Guarantor's liability hereunder shall be primary
and not secondary, and shall be joint and several with that of Tenant. Landlord
may proceed against Guarantor under this Guaranty without initiating or
exhausting its remedy or remedies against Tenant, and may proceed against
Guarantor and/or Tenant separately or concurrently.
7. Waivers.
(a) Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any obligations or liabilities contracted or incurred by
Tenant.
(b) Guarantor may not assert any claim, right or remedy which
Guarantor may now have or hereafter acquire against Tenant that arises hereunder
and/or from the performance by Guarantor hereunder including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of Landlord against the Tenant or any security which Landlord now has
or hereafter acquires, whether or not such claim, right or remedy arises in
equity, under contract, by statute, under common law or otherwise, prior to the
expiration or earlier termination of the Lease and the satisfaction in full of
all obligations of Tenant under the Lease; provided, that Guarantor may give to
Tenant any notices necessary to preserve such claims, rights or remedies.
(c) Guarantor waives (a) any right to require Landlord to
proceed against Tenant to obtain payment; (b) any right to require Landlord to
proceed against or exhaust any security held from Tenant; (c) any right to
require Landlord to pursue any other remedy in Landlord's power; (d) any right
to receive any notices in connection with the existence, creation or nonpayment
of any sums due under the Lease including, without limitation, any notice of
acceptance by Landlord; (e) presentment, demand, notice of dishonor and protest;
(f) any defense arising by reason of any disability or by reason of the
cessation of the liability of Tenant for any reason; (g) any benefit of and any
right to participate in any security held by Landlord now or in the future; (h)
any defense based upon diligence in collection of or realization upon sums due
under the Lease; (i) any defense arising by reason of any disability incapacity,
lack of authority or death of any other person or the failure of Landlord to
file or enforce a claim against the estate (in administration, bankruptcy, or
any other proceeding) of any other person; and (j) any defense based upon an
election of remedies based upon any notice or demand of any kind that may be
required to be given by any statute or rule of law, or by any of the agreements
between Tenant and Landlord.
8. Estoppels. Within thirty (30) days after Landlord's written request
to Guarantor, Guarantor shall execute and deliver to Landlord a statement in
writing setting forth any amendments to this Guaranty and stating whether or not
this Guaranty is in full force and effect and specifying what reasons or
defenses, if any, support any claim that this Guaranty is not in full force and
effect.
9. Notices. Any notice which Landlord may elect to send to Guarantor
shall be binding upon Guarantor if mailed to Guarantor at the address set forth
above or such other address as Guarantor may, in writing, make known to
Landlord, by United States Certified or Registered Mail, Return Receipt
Requested.
10. Parties Bound. This Guaranty shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns.
11. Release of Guaranty. Notwithstanding any contrary provision of this
Guaranty, in the event that: (i) Tenant assigns the Lease to a third-party or
non-wholly owned subsidiary of Guarantor in accordance with the terms of Section
23.4 of the Lease, or (ii) Landlord releases Tenant from liability under the
Lease, the obligations of Guarantor hereunder shall terminate. In the event that
Tenant assigns the Lease without the prior written consent of Landlord, or
otherwise in violation of the terms of the Lease, this Guaranty will continue in
full force and effect and no partial release will be granted.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
as of the date first above written.
WITNESS: GUARANTOR:
GENESIS HEALTH VENTURES, INC.
By:
---------------------------
Name:
--------------------------
Title:
--------------------------
State of
----------------------------
County of
----------------------------
The foregoing instrument was acknowledged before me this
______ day of ___________________, 199___ by ________________, of Genesis Health
Ventures, Inc. a Pennsylvania _________________________________________________-
corporation, on behalf of the corporation.
--------------------------
Notary Public
My Commission Expires:
--------------------------
Exhibit A
(Property Description)
ELDERTRUST
SCHEDULE OF GRANTORS AND PURCHASE PRICES
FOR PROPERTIES OWNED BY GENESIS AFFILIATES
--------------------------------------- -------------------------------------- --------------------------------------
PROPERTY GRANTOR PURCHASE PRICE
--------------------------------------- -------------------------------------- --------------------------------------
Heritage Xxxxx Genesis Health Ventures of $11,536,000.00
Massachusetts, Inc.
--------------------------------------- -------------------------------------- --------------------------------------
Xxxxxxxxxxx Xxxxxx Xxxxxx Associates $ 5,894,000.00
--------------------------------------- -------------------------------------- --------------------------------------
Riverview Ridge (leasehold interest River Ridge Partnership $ 1,230,595.00
only)
--------------------------------------- -------------------------------------- --------------------------------------
Pleasant View XxXxxxxx Health Care Centers, Inc. $ 3,742,000.00
--------------------------------------- -------------------------------------- --------------------------------------
Xxxxxxxxxxx Care Center Geriatric and Medical Services, Inc. $ 8,855,000.00
--------------------------------------- -------------------------------------- --------------------------------------
Lopatcong Care Center Geriatric and Medical Center, Inc. $13,778,000.00
--------------------------------------- -------------------------------------- --------------------------------------
Phillipsburg Care Center Geriatric and Medical Services, Inc. $ 6,266,000.00
--------------------------------------- -------------------------------------- --------------------------------------
Xxxxx Nursing and Rehabilitation Genesis Health Ventures of Xxxxx, $ 6,065,000.00
Center Inc.
--------------------------------------- -------------------------------------- --------------------------------------
Belvedere Nursing and Rehabilitation Genesis Health Ventures of Indiana, $ 9,792,000.00
Center Inc.
--------------------------------------- -------------------------------------- --------------------------------------
Chapel Manor Nursing and Genesis Health Ventures of Indiana, $10,658,000.00
Rehabilitation Facility Inc.
--------------------------------------- -------------------------------------- --------------------------------------
Pennsburg Manor Nursing and Genesis Health Ventures of Indiana, $10,000,000.00
Rehabilitation Facility Inc.
--------------------------------------- -------------------------------------- --------------------------------------
Professional Office Building I Genesis Health Ventures of Indiana, $ 4,000,000.00
(Leasehold) Inc.
--------------------------------------- -------------------------------------- --------------------------------------
Xxxxx Xxxxxx Office Building Geriatric and Medical Services, Inc. $ 545,000.00
--------------------------------------- -------------------------------------- --------------------------------------
