Exhibit 10.13
FORM OF ASSET TRANSFER AGREEMENT
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THIS ASSET TRANSFER AGREEMENT (this "Agreement") is made and
entered into as of September 25, 1997, by and between ELDERTRUST OPERATING
LIMITED PARTNERSHIP, a Delaware limited partnership ("Transferee"), and
___________ ("Transferor").
WHEREAS, Transferor is a partner in Salisbury Medical Office
Building General Partnership, a Pennsylvania general partnership (the
"Partnership"); Transferor owns the interests in the Partnership set forth on
Schedule 1.1 hereto (the "Interest"); and
WHEREAS, Transferor desires to contribute the Interest to
Transferee on the terms and conditions set forth herein.
WHEREAS, the Partnership owns and operates an office building
known as Salisbury Medical Office Building, which office building consists of
the real property described in Exhibit A hereto (the "Real Property"), the
improvements thereon and all other real and personal property associated
therewith (together with the Real Property, the "Property"), all of which other
real and personal property is described in Exhibit B hereto;
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 TRANSFER
Subject to the terms and conditions set forth herein,
Transferor agrees to transfer to Transferee, and Transferee agrees to acquire
from Transferor, the Interest. The transfer of the Interest shall be effected
pursuant to the provisions of this Article I and other applicable provisions of
this Agreement (the "Transaction").
1.1 Transfer of Interest. 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 Interest.
1.2 Purchase Price. The total consideration (the "Purchase
Price") to be paid by Transferee to Transferor for the Interest shall be
immediately available funds to be paid to Transferor at the Closing in the
amount of ____________________.
1.3 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 real estate
investment 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.
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 respective 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.
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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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRANSFEROR
Transferor hereby represents and warrants to Transferee as follows:
3.1 Status. 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. 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 partnership agreement of the Partnership, (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 or
the Partnership is a party or by which Transferor or the Partnership or the
Property may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Transferor, the Partnership 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 Partnership, 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 date of
the Closing.
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 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 Transaction
contemplated by this Agreement.
3.5 Title to Assets. Transferor has good and valid title to
the Interest, free and clear of any Liens (as hereinafter defined). The
Partnership 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 Partnership'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"). Except for
the Mortgage Debt, the Partnership has no material indebtedness other than
indebtedness incurred by it in its ordinary course of business. 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 the Partnership that has not been cured or that would have a
material adverse effect on the business or financial condition of the
Partnership, the Transaction or the Property.
3.7 Financial Statements. The financial statements of the
Partnership attached as Schedule 3.7 hereto (the "Financial Statements") have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods specified. The balance
sheets in the Financial Statements fairly present the financial condition of the
Partnership 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 June 30, 1997, there has been
no material adverse change in the business or financial condition of the
Partnership.
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3.9 Leases. Except as set forth on Schedule 3.9 hereto, the
Partnership 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. The Partnership is not a party to and neither
Transferor nor the Partnership is bound by any contracts or other
understandings, written or oral, that relate to the Interest or the Property,
except for contracts or understandings that are not material to the business and
operations of the Property (collectively, the "Contracts," which term shall not
be construed to include any leases). Neither Transferor nor the Partnership, as
applicable, 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 the Partnership or the Property.
3.11 Permits. To the knowledge of Transferor, the Partnership
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 the Partnership or the
Property, and to Transferor's knowledge, the Partnership is not in violation of
any Permit in any material respect and all Permits of the Partnership are valid
and in full force and effect.
3.12. Litigation. There are no claims, actions, suits,
proceedings or investigations pending or, to Transferor's knowledge, threatened
against Transferor or the Partnership, or any properties or rights of Transferor
or the Partnership, that would have a material adverse effect on the business or
financial condition of Transferor or the Partnership, the Transaction or the
Property before any court or administrative, governmental or regulatory
authority or body, domestic or foreign. None of Transferor, the Partnership, the
Interest or 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 the Partnership, the
Transaction or the Property.
3.13 Compliance with Laws. To Transferor's knowledge, the
Partnership 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
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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
the Partnership or the Property.
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 the Partnership, (i) all tax or information returns required to be filed on
or before the date hereof by or on behalf of the Partnership have been filed
through the date hereof or will be filed on or before the date of the Closing in
accordance with all applicable laws, (ii) there is no action, suit or proceeding
pending against, or with respect to, the Partnership 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 the Partnership 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. To Transferor's knowledge, each of the
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. To
Transferor's knowledge, the Partnership 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 Employees. The Partnership has no employees.
3.17 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.
3.18 Environmental. For the purpose of this Section 3.18, 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
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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.
To Transferor's knowledge, and except as may be revealed in
the Phase I Environmental Report prepared for the Property by Xxx X. Xxxxxx,
Inc., dated July, 1997, (i) no Hazardous Substances are present in, on or under
the Property that require remediation under applicable law or would have a
material adverse affect on the condition (financial or otherwise), earnings,
assets, business affairs or business prospects of the Property, the Partnership
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 the
Partnership or the Property, and (iii) the Partnership has not caused or allowed
any discharge or disposal of any Hazardous Substances at the Property except in
compliance with Environmental Laws. The Partnership 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.
3.19 [INTENTIONALLY DELETED]
3.20 Pending Assessments and Eminent Domain. Transferor has no
knowledge of, and neither Transferor nor the Partnership have received 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.
3.21 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.
3.22 No Agreements. Except as set forth on Schedule 3.22,
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.
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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 permit the Partnership to sell, assign, pledge,
transfer or encumber, 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 or 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 Partnership's personnel and all
properties, documents, contracts, facilities, books, equipment and records of
the Partnership, 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 cause the Partnership to
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 permit the Partnership to
enter into any new Contracts with respect to the Property except in the ordinary
course of the business of the operation of the Property.
4.5 Insurance. Transferor shall cause the Partnership to
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 cause the
Partnership to 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 nor permit
the Partnership to 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
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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 the Partnership 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
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 the Partnership or the
Property.
4.9 Operation of Property. Transferor shall cause the
Partnership to operate and maintain the Property in the same manner as the
Partnership has heretofore operated the Property.
ARTICLE V
CONDITIONS TO CONSUMMATION OF
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 or the
Partnership 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
Transaction, the Partnership or 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 amount of at least Six Hundred Twenty-Five Thousand Eight
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Hundred Dollars ($625,800), 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 Consents. All consents listed on Schedule 3.2 or otherwise
necessary for the execution and delivery of this Agreement by Transferor and the
consummation of the Transaction by Transferor have been obtained.
5.6 Instruments of Conveyance. The Transferor shall have
delivered the instruments evidencing conveyance of the Interest referred to in
Section 7.1.
5.7 IPO Closing. The IPO shall close simultaneously with the
Transaction.
5.8 Simultaneous Closing. The Transaction shall close
simultaneously with the closing 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.
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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 VI and VII hereof.
7.1 Closing Deliveries by Transferor. At Closing, Transferor
shall deliver (or cause to be delivered pursuant to the Power of Attorney
referred to in Section 10.8) the following:
(a) a written document of conveyance transferring
to Transferee title to the Interest, free and clear of any
adverse claim or interest;
(b) a certification by Transferor, duly executed by
Transferor under penalty of perjury, setting forth
Transferor's address and federal tax identification number and
certifying that such 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;
(c) such documents and certificates as Transferee may
require to establish the authority of the parties executing
any documents in connection with the Transaction;
(d) such consents as are contemplated by Section 5.5
hereof;
(e) a certificate 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; and
(f) 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;
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(b) a certificate 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) such other documents and instruments as
Transferor and Transferee agree are necessary or appropriate.
7.3 Closing Costs. Transferee agrees to pay all costs
associated with the closing of the acquisition of the Interest by Transferee,
including (i) survey costs, (ii) costs of obtaining a title insurance policy for
the benefit of Transferee, (iii) documentary and transfer fees, and (iv) all
taxes, recording charges and other fees imposed on or in connection with the
Transaction.
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 as the exclusive and sole right and remedy
of Transferor (except as provided in this sentence), whereupon this Agreement
shall terminate and none of the parties shall have any further obligations to
any other party, provided, however, that in such event Transferee shall
reimburse Transferor for all reasonable costs incurred by Transferor in
connection with the Transaction, provided that the amount to be reimbursed by
Transferee shall not exceed Twenty-Five Thousand Dollars ($25,000).
8.2 Transferee's Remedies. Except for any breaches waived in
writing by Transferee, if any Transferee has breached any of his 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, the amount of money damages that Transferee may
recover from Transferor shall not exceed Twenty-Five Thousand Dollars ($25,000).
8.3 Limitation on Transferor's Liability. Any liability of
Transferor to Transferee pursuant to Section 8.2 shall be limited to the
Purchase Price.
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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 date of
the Closing, as a result of, on account of or arising from (a) the failure of
Transferor to perform any of his obligations hereunder or, to the extent
provided in Section 10.1, the breach by Transferor of any of his representations
and warranties hereunder, (b) events, contractual obligations, acts or omissions
of Transferor or the Partnership 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 his
respective 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, 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
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 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 damage to the Property caused by Transferee in connection
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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. (a) 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 that the representation and
warranty of Transferor set forth in Section 3.18 hereof 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. Any written notice
given within such period setting forth a claim must set forth the nature and
details of the claim with specificity.
(b) Transferor's liability shall be limited to twenty percent
(20%) of the 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: ___________________
c/o Senior LifeChoice, L.L.C.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
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
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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 the State of Maryland (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, except that Transferee may
assign all or a portion of this Agreement and its rights hereunder, to a
corporation, partnership, limited liability or other entity of which the entire
ownership interest is owned directly or indirectly by Transferee without the
consent of Transferor; no such assignment shall relieve Transferee of its
obligations hereunder.
This Agreement shall be binding upon and shall inure to the
benefit to 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
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agreement between the parties hereto with respect to the Transaction and are
intended to be an integration of all prior negotiations and understandings.
Contributor 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 Power of Attorney. By executing this Agreement pursuant
to Letter of Acceptance, Transferor is constituting and appointing each of
Xxxxxx X. Xxxxxxx, Xx. and D. Xxx XxXxxxxx, Xx., individually, with full power
of substitution, the true and lawful attorney-in-fact (the "Attorney") of
Transferor, with full power and authority in the name of and for and on behalf
of Transferor, to execute an instrument of conveyance transferring the Interest
to Transferee pursuant to the terms set forth in this Agreement, and to execute
any other instruments that Transferee reasonably deems necessary or appropriate
in connection with the transfer of the Interest pursuant to this Agreement.
10.9 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.
10.10 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.
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IN WITNESS WHEREOF, Transferor has executed a separate Letter
of Acceptance agreeing to be bound by the terms of this Agreement and Transferee
has caused this Agreement to be duly executed and delivered 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:____________________________
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[COUNTERPART SIGNATURE PAGE]
Please sign exactly as your name appears on the previous page.
__________________________________
Date
STATE OF )
: SS.
COUNTY OF )
On the _______ day of ______________ 1997, before me
personally came ____________, to me known and known to me to be the individual
described in the foregoing instrument, and acknowledged that he executed the
same.
__________________________
Notary Public
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EXHIBIT SCHEDULE
----------------
Partner Cash Amount Interest
------- ----------- --------
Xxxxxxx X. Xxxxxxx $104,300 1/6
Xxxxxx X. Xxxxxxx, Xx. 104,300 1/6
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