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Exhibit 10.2
OPTION AGREEMENT
By and Among
NEW MEDITRUST COMPANY, LLC
and
IPC ADVISORS S.A.R.L.
and
BALANCED CARE CORPORATION
Dated: December 30, 1999
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TABLE OF CONTENTS
Page
1. DEFINITIONS AND MEANINGS............................................... 2
2. OPTION................................................................. 10
3. FACILITY PURCHASE PRICE................................................ 11
4. SELLER'S REPRESENTATIONS............................................... 11
4.1 Existence; Power; Qualification.................................. 11
4.2 Valid and Binding................................................ 12
4.3 No Violation..................................................... 12
4.4 Consents and Approvals........................................... 12
4.5 FIRPTA Representation............................................ 12
4.6 Nothing Omitted.................................................. 12
4.7 Pending Actions, Notices and Reports............................. 13
5. THE BUYER'S REPRESENTATIONS............................................ 13
5.1 Existence; Power; Qualification.................................. 13
5.2 Valid and Binding................................................ 14
5.3 No Violation..................................................... 14
5.4 Consents and Approvals........................................... 14
5.5 Pending Actions, Notices and Reports............................. 14
5.6 Nothing Omitted.................................................. 14
6. CONDITION OF THE LEASED PROPERTY....................................... 15
6.1 AS-IS Condition.................................................. 15
6.2 Casualty and Condemnation........................................ 16
7. COVENANTS OF THE PARTIES............................................... 16
7.1 BCC Lease Documents.............................................. 16
7.2 Publicity........................................................ 17
7.3 Costs and Fees................................................... 18
7.5 Right of First Refusal and Option to Purchase.................... 18
7.6 Title Review..................................................... 18
7.7 Use of Purchase Money to Clear Title............................. 19
8. THE BUYER'S CONDITIONS PRECEDENT TO EACH CLOSING. .................... 19
8.1 Accuracy of Warranties; Compliance with Covenants................ 19
8.2 Absence of Injunction............................................ 20
8.3 Absence of Seller Default........................................ 20
9. THE SELLER'S CONDITIONS PRECEDENT TO EACH CLOSING...................... 20
9.1 Accuracy of Warranties; Compliance with Covenants................ 20
9.2 Absence of Injunction............................................ 20
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9.3 Concurrent Payment of Applicable Required Prepayment
under the Promissory Note........................................ 20
9.4 Payments under Lease Documents................................... 20
9.5 Lessee's Right of First Refusal.................................. 21
9.6 Lessee's Option to Purchase...................................... 21
9.7 Termination or Assignment of Lease............................... 21
9.8 Stock Transfers.................................................. 21
10. EXTENSION.............................................................. 21
11. CLOSINGS............................................................... 22
11.1 Closing Dates.................................................... 22
11.2 Deliveries of the Seller at each Closing......................... 22
11.3 Deliveries of the Buyer at each Closing.......................... 23
12. REMEDIES............................................................... 24
13. ADJUSTMENTS. ......................................................... 25
14. SURVIVAL OF PROVISIONS IN THE LEASE DOCUMENTS.......................... 25
15. MISCELLANEOUS.......................................................... 25
15.1 No Broker........................................................ 25
15.2 Entire Agreement................................................. 25
15.3 Binding Effect; Assignment....................................... 26
15.4 Notices.......................................................... 26
15.5 Captions......................................................... 28
15.6 Joint Effort..................................................... 28
15.7 Counterparts..................................................... 28
15.8 Partial Invalidity............................................... 28
15.9 No Offer......................................................... 29
15.10 Amendments....................................................... 29
15.11 Exhibits......................................................... 29
15.12 Governing Law.................................................... 29
15.13 Third Parties.................................................... 29
15.14 Further Assurances............................................... 29
15.15 No Solicitation.................................................. 29
15.16 Time of the Essence.............................................. 30
15.17 Rules of Construction............................................ 30
15.18 Joint and Several Liability...................................... 30
EXHIBIT A DESCRIPTION OF THE LAND
EXHIBIT B RELATED AGREEMENTS
EXHIBIT C CERTIFICATE REGARDING SELLER'S
REPRESENTATIONS AND WARRANTIES
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EXHIBIT D CERTIFICATE REGARDING IPC'S
REPRESENTATIONS AND WARRANTIES
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OPTION AGREEMENT
THIS OPTION AGREEMENT is made and entered into as of this 30th day of
December, 1999, by and among IPC ADVISORS S.A.R.L., a Luxembourg corporation
(hereinafter referred to as "IPC"), BALANCED CARE CORPORATION, a Delaware
corporation (hereinafter referred to as "Balanced Care") and NEW MEDITRUST
COMPANY LLC, a Delaware limited liability company (hereinafter referred to as
the "Seller").
W I T N E S S E T H
WHEREAS, the Seller is the owner of twelve (12) parcels of lands
located in Arkansas, Pennsylvania, Ohio, Virginia and Tennessee and more
particularly described on EXHIBITS A-1 through EXHIBITS A-12 attached hereto and
incorporated herein by reference (collectively, the "Land");
WHEREAS, pursuant to the Leases (as hereinafter defined), the Seller
leases the Land and the other Leased Property (as hereinafter defined) to the
Lessees (as hereinafter defined) and, in accordance with the BCC Lease Documents
(as hereinafter defined), each Lessee, other than the Potomac Point Lessee (as
hereinafter defined), has constructed (or is constructing) an assisted living or
other senior housing facility on the portion of the Land demised to such Lessee
and each Lessee operates (or will operate) the Facility (as hereinafter defined)
demised to it;
WHEREAS, certain of the Lessees are, directly or indirectly,
wholly-owned Subsidiaries (as hereinafter defined) of Balanced Care and, to the
extent that any Lessee is not a Subsidiary of Balanced Care as of the date
hereof, Balanced Care has been granted options to acquire all of the issued and
outstanding capital stock of the Lessees that are not Subsidiaries of Balanced
Care (collectively, the "Third Party Lessees");
WHEREAS, subsidiaries of Balanced Care were engaged to develop the
Facilities, other than the Potomac Point Facility, and to manage the Facilities;
WHEREAS, IPC is an Affiliate (as hereinafter defined) of Balanced Care
and, concurrently herewith, IPC and Balanced Care (collectively, the "Buyer")
exercised their right to acquire twelve (12) other parcels of land from the
Seller (collectively,
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the "Tranche 1 Properties") and designated subsidiaries of Balanced Care to take
title to the Tranche 1 Properties;
WHEREAS, as part of the consideration paid by the Buyer for the Tranche
1 Properties, the Buyer executed and delivered to the Seller a Promissory Note,
of even date, in the original principal amount of SEVEN MILLION EIGHT HUNDRED
ELEVEN THOUSAND FIFTY-FOUR DOLLARS ($7,811,054) made by the Buyer to the order
of the Seller (the "Promissory Note");
WHEREAS, as a condition of the consummation of the transaction
involving the Trance 1 Properties, the Buyer desires to acquire from the Seller
an option to acquire a fee simple interest in the Leased Property and the Seller
desires to grant the Buyer an option to acquire a fee simple interest in the
Leased Property, all in accordance with the terms and conditions herein set
forth; and
WHEREAS, subject to the Buyer's retaining all of its other obligations
hereunder, the Buyer desires to designate various nominees (each, a "Designee")
to acquire, on the applicable Closing Dates (as hereinafter defined), a fee
simple interest in the Leased Property, all in accordance with the terms and
conditions herein set forth.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual covenants, conditions, representations and undertakings hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS AND MEANINGS. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires, (a)
the terms defined in this Section have the meanings assigned to them in this
Section and include the plural as well as the singular and (b) all references in
this Agreement to designated "Sections" and other subdivisions are to designated
Sections and other subdivisions of this Agreement.
Additional Rent: As defined under each of the Leases.
Affiliate: As defined under each of the Leases.
Agreement: This Option Agreement, together with all Exhibits attached
hereto as the same may hereafter be amended, restated and supplemented from time
to time.
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Assignment and Assumption Documents: As defined in Section 7.1.
Balanced Care: As defined in the preamble of this Agreement and its
successors and assigns.
Balanced Care Entities: Collectively, Balanced Care and its
Subsidiaries.
BCC Lease Documents: Collectively, the Lease Documents as defined under
each of the Leases.
BCC Lease Obligations: Collectively, the Lease Obligations as defined
under each of the Leases.
Blytheville Facility: The Facility as defined under the Blytheville
Lease.
Blytheville Land: The Land as defined under the Blytheville Lease and
as more particularly described in EXHIBIT A-1 attached hereto and incorporated
herein by reference.
Blytheville Lease: That certain First Amended and Restated Facility
Lease, dated as of December 19, 1997, as amended, by and between Meditrust
Acquisition Corporation II and TC Realty of Blytheville, Inc.
Blytheville Lessee: TC Realty at Blytheville, Inc., a Delaware
corporation.
Buyer: As defined in the preamble of this Agreement and its permitted
successors and assigns.
Buyer Default: As defined in the Section 12 of this Agreement.
Buyer Documents: Collectively, all documents required hereunder to be
delivered by IPC, Balanced Care and/or any Balanced Care Entity at any Closing
in order to effectuate the consummation thereof.
Cash Collateral: Collectively, the Cash Collateral as defined under
each of the Leases.
Casualty: Any damage or destruction to any portion of the Leased
Property by reason of fire or other hazard or casualty.
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Chesterfield Facility: The Facility as defined under the Chesterfield
Lease.
Chesterfield Land: The Land as defined under the Chesterfield Lease and
as more particularly described in EXHIBIT A-9 attached hereto and incorporated
herein by reference.
Chesterfield Lease: That certain Facility Lease Agreement, dated as of
June 30, 1998, by and between Meditrust Company LLC and TC Realty of
Chesterfield, Inc.
Chesterfield Lessee: TC Realty of Chesterfield, Inc., a Delaware
corporation.
Chippewa Facility: The Facility as defined under the Chippewa Lease.
Chippewa Land: The Land as defined under the Chippewa Lease and as more
particularly described in EXHIBIT A-7 attached hereto and incorporated herein by
reference.
Chippewa Lease: That certain Facility Lease Agreement, dated as of
January 7, 1998, by and between Meditrust Acquisition Corporation II and TC
Realty of Chippewa, Inc.
Chippewa Lessee: TC Realty of Chippewa, Inc., a Delaware corporation.
Closing: As defined in Section 2 of this Agreement.
Closing Conditions: As defined in Section 2 of this Agreement.
Closing Date: As defined in Section 11.1 of this Agreement.
Closing Quarter: As defined in Section 9.4 of this Agreement.
Code: As defined in Section 4.5 of this Agreement.
Commencement Dates: Collectively, the Commencement Date as defined
under each Lease.
Condemnation: A taking by power of eminent domain or conveyance in lieu
thereof of all or any portion of the Land.
Designee: As defined in the preamble of this Agreement.
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Developers: Collectively, each Developer as defined under each of the
Leases.
Dillsburg Facility: The Facility as defined under the Dillsburg Lease.
Dillsburg Land: The Land as defined under the Dillsburg Lease and as
more particularly described in EXHIBIT A-5 attached hereto and incorporated
herein by reference.
Dillsburg Lease: That certain Facility Lease Agreement, dated as of
December 31, 1997, by and between Meditrust Acquisition Corporation II and Black
Box of Dillsburg, Inc.
Dillsburg Lessee: Black Box of Dillsburg, Inc., a Delaware corporation.
Exercise Period: The period from and including January 2,
2000 through and including October 31, 2000.
Facilities: Collectively, the Blytheville Facility, the Lewisburg
Facility, the Lima Facility, the Potomac Point Facility, the Dillsburg Facility,
the Xenia Facility, the Chippewa Facility, the Kingsport Facility, the
Chesterfield Facility, the Hendersonville Facility, the Knoxville Facility and
the Pocahontas Facility.
Facility Purchase Price: With respect to each Facility (and the
applicable portion of the Leased Property relating thereto), the amount which
the Buyer shall pay to consummate the purchase and sale of such Facility (and
the applicable portion of the Leased Property relating thereto), as provided in
Section 3 of this Agreement.
First Leasehold Mortgages: Collectively, each First Leasehold Mortgage
as defined under each of the Leases (other than the Potomac Point Lease).
Fixtures: Collectively, all fixtures, fittings, furniture, apparatus,
equipment, machinery and building systems permanently affixed to or incorporated
into any portion of the Leased Property, including, without limitation, all
furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, incinerating, air and water pollution control, waste disposal,
air-cooling and air conditioning systems and apparatus and sprinkler systems.
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Governmental Authorities: Collectively, all agencies, authorities,
bodies, boards, commissions, courts, instrumentalities, legislatures and offices
of any nature whatsoever of any government, quasi-government unit or political
subdivision, whether with a federal, state, county, district, municipality, city
or otherwise and whether now or hereinafter in existence.
Gross Revenues: As defined under each of the Leases.
Guarantor: Any guarantor of all or any portion of the BCC Lease
Obligations.
Hendersonville Facility: The Facility as defined under the
Hendersonville Lease.
Hendersonville Land: The Land as defined under the Hendersonville Lease
and as more particularly described in EXHIBIT A-10 attached hereto and
incorporated herein by reference.
Hendersonville Lease: That certain Facility Lease Agreement, dated as
of June 30, 1998, by and between Meditrust Company LLC and TC Realty of
Hendersonville, Inc.
Hendersonville Lessee: TC Realty of Hendersonville, Inc., a Delaware
corporation.
IPC: As defined in the preamble of this Agreement and its permitted
successors and assigns.
Impositions: Collectively, all taxes (including, without limitation,
all ad valorem, property, sales, use, single business, gross receipts,
transaction privilege, rent or similar taxes, but, specifically excluding any
income, capital stock, franchise or similar taxes), assessments (including,
without limitation, all assessments for public improvements or benefits, whether
or not commenced or completed prior to the date hereof and whether or not to be
completed prior to the applicable Closing), ground rents, water and sewer rents,
water charges or other rents and charges, excises, tax levies, fees (including,
without limitation, license, permit, inspection, authorization and similar
fees), transfer taxes and recordation taxes imposed as a result of the
conveyance of the applicable portion of the Leased Property to the Buyer (or the
applicable Designee) or any assignment or termination of any Lease, and all
other governmental charges, in each case whether general or special,
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ordinary or extraordinary, or foreseen or unforeseen, of every character in
respect of the applicable portion of the Leased Property, which at any time
prior to the sale of the applicable portion of the Leased Property in accordance
with the terms hereof, may be assessed or imposed on or in respect of or be a
Lien upon (a) the Seller's interest in the applicable portion of the Leased
Property, (b) the applicable portion of the Leased Property or any rent
therefrom or any estate, right, title or interest therein or (c) any occupancy,
operation, use or possession of, sales from, or activity conducted on, or in
connection with, the applicable portion of the Leased Property or the leasing or
use of the applicable portion of the Leased Property.
Kingsport Facility: The Facility as defined under the Kingsport Lease.
Kingsport Land: The Land as defined under the Kingsport Lease and as
more particularly described in EXHIBIT A-8 attached hereto and incorporated by
references.
Kingsport Lease: That certain Facility Lease Agreement, dated as of
June 30, 1998, by and between Meditrust Company LLC and TC Realty of Kingsport,
Inc.
Knoxville Facility: The Facility as defined under the Knoxville Lease.
Knoxville Land: The Land as defined under the Knoxville Lease and as
more particularly described in EXHIBIT A-11 attached hereto and incorporated
herein by reference.
Knoxville Lease: That certain Facility Lease Agreement, dated as of
June 30, 1998, by and between Meditrust Company LLC and TC Realty of Knoxville,
Inc.
Knoxville Lessee: TC Realty of Knoxville, Inc., a Delaware corporation.
Land: As defined in the preamble of this Agreement and, including,
without limitation, the Blytheville Land, the Lewisburg Land, the Lima Land, the
Potomac Point Land, the Dillsburg Land, the Xenia Land, the Chippewa Land, the
Kingsport Land, the Chesterfield Land, the Hendersonville Land, the Knoxville
Land and the Pocahontas Land.
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Leases: Collectively, the Blytheville Lease, the Lewisburg Lease, the
Lima Lease, the Potomac Point Lease, the Dillsburg Lease, the Xenia Lease, the
Chippewa Lease, the Kingsport Lease, the Chesterfield Lease, the Hendersonville
Lease, the Knoxville Lease and the Pocahontas Lease.
Leased Improvements: Collectively, all buildings, structures, fixtures
and other improvements of every kind including, but not limited to, alleyways
and connecting tunnels, sidewalks, utility pipes, conduits and lines (on-site
and off-site), and parking areas and roadways appurtenant to such buildings and
structures situated upon any portion of the Land, including, without limitation,
the Facilities.
Leased Property: Collectively, the Land, the Related Rights, the Leased
Improvements and the Fixtures.
Leasehold Improvement Agreements: Collectively, as defined under each
of the Leases (other than the Potomac Point Lease).
Lessees: Collectively, the Blytheville Lessee, the Lewisburg Lessee,
the Lima Lessee, the Potomac Point Lessee, the Dillsburg Lessee, the Xenia
Lessee, the Chippewa Lessee, the Kingsport Lessee, the Chesterfield Lessee, the
Hendersonville Lessee, the Knoxville Lessee and the Pocahontas Lessee.
Letter Agreement: That certain letter, dated December 20, 1999, from
International Property Corporation to, and accepted by, The Meditrust Companies.
Lewisburg Facility: The Facility as defined under the Lewisburg Lease.
Lewisburg Land: The Land as defined under the Lewisburg Lease and as
more particularly described in EXHIBIT A-2 attached hereto and incorporated
herein by reference.
Lewisburg Lease: That certain Facility Lease Agreement, dated as of
December 31, 1997, by and between Meditrust Acquisition Corporation II and Black
Box of Lewisburg, Inc.
Lewisburg Lessee: Black Box of Lewisburg, Inc., a Delaware
corporation.
Lien: With respect to all or any portion of the Leased Property, any
mortgage, easement, restriction, lien, pledge, collateral assignment,
hypothecation, charge, security interest,
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title retention agreement, levy, execution, seizure, attachment, garnishment or
other encumbrance of any kind in respect of all or any portion of the Leased
Property, whether or not xxxxxx, vested or perfected.
Lima Facility: The Facility as defined under the Lima Lease.
Lima Land: The Land as defined under the Lima Lease and as more
particularly described in EXHIBIT A-3 attached hereto and incorporated herein by
reference.
Lima Lease: That certain First Amended and Restated Facility Lease,
dated as of December 31, 1997, by and between Meditrust Acquisition Corporation
II and TC Realty Corporation X.
Xxxx Lessee: TC Realty Corporation I, a Delaware corporation.
Managers: Collectively, each Current Manager as defined under each of
the Leases.
Notice: As defined in Section 15.4 of this Agreement.
Officer's Certificate: As defined in the Lease.
Option Notice: As defined in Section 2 of this Agreement.
Option Right: As defined in Section 2 of this Agreement.
Optional Title Matters: As defined in Section 7.6 of this Agreement.
Optional Title Notice: As defined in Section 7.6 of this Agreement.
Permitted Exceptions: With respect to each Facility (and the applicable
portion of the Leased Property relating thereto), collectively, (a) any sublease
entered into (or consented to) by the applicable Lessee, (b) the matters set
forth on Exhibit B of the applicable Lease and any other encumbrance permitted
under the applicable Lease (other than any First Leasehold Mortgage), (c) Liens
of mechanics, laborers, materialmen, suppliers or vendors, (d) Liens for
Impositions, (e) any matters that current surveys of the Land may disclose and
(f) all other Liens other than (i) any other Liens securing a monetary, tax (but
only to the extent that any such tax is excluded from the definition of
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Imposition) or other obligation or undertaking of the Seller and (ii) any
involuntary Liens caused by the actions or omissions of the Seller.
Person: A corporation (including a business trust), limited liability
company, association, trust, partnership, joint venture, joint stock company,
organization, proprietorship, natural person, government or governmental agency
or political subdivision thereof or any other entity of whatever nature.
Pocahontas Facility: The Facility as defined under the Pocahontas
Lease.
Pocahontas Land: The Land as defined under the Pocahontas Lease and as
more particularly described in EXHIBIT A-12 attached hereto and incorporated
herein by reference.
Pocahontas Lease: That certain First Amended and Restated Facility
Lease, dated as of December 19, 1997, as amended, by and between Meditrust
Acquisition Corporation II and TC Realty of Pocahontas, Inc.
Pocahontas Lessee: TC Realty at Pocahontas, Inc., a Delaware
corporation.
Potomac Point Facility: The Facility as defined under the Potomac Point
Lease.
Potomac Point Land: The Land as defined under the Potomac Point Lease
and as more particularly described in EXHIBIT A-4 attached hereto and
incorporated herein by reference.
Potomac Point Lease: That certain Facility Lease Agreement, dated as of
June 30, 1998, by and between Meditrust Company LLC and Balanced Care at
Xxxxxxxx, Inc.
Potomac Point Lessee: Balanced Care at Xxxxxxxx, Inc., a Delaware
corporation.
Primary Intended Use. With respect to any Facility, as defined under
the Lease relating thereto.
Project Funds: Collectively, as defined under each Leasehold
Improvement Agreement.
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Promissory Note: As defined in the preamble of this Agreement, as the
same may hereafter be amended, restated and supplemented from time to time.
Related Rights: Collectively, all easements, rights and appurtenances
of every nature and description now or hereafter relating to or benefitting all
or any portion of the Land and the Leased Improvements.
Rent: As defined under each of the Leases.
Required Prepayment: As defined in the Promissory Note.
Seller: As defined in the preamble of this Agreement and its successors
and assigns.
Seller Default: Any failure by the Seller to advance any Project Funds
under any Leasehold Improvement Agreement in accordance with the terms thereof
notwithstanding the satisfaction, in accordance with the terms of such Leasehold
Improvement Agreement, of every condition precedent to the Seller's obligation
to make any such advance.
Seller Documents: Collectively, all documents required hereunder to be
delivered by the Seller at any Closing in order to effectuate the consummation
thereof.
Seller's Closing Certification. As defined in Section 4 of this
Agreement.
Stock Transfers: Collectively, each Stock Transfer as defined under
each of the Leases (other than the Potomac Point Lease).
Subsidiary: As defined under each of the Leases.
Title Objection Notice: As defined in Section 7.6 of this Agreement.
Third Party Lessees: As defined in the preamble of this Agreement.
Tranche 1 Properties: As defined in the preamble of this Agreement.
Transaction Documents: Collectively, the Note, this Agreement, the
Seller Documents and the Buyer Documents.
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Xenia Facility: The Facility as defined under the Xenia Lease.
Xenia Land: The Land as defined under the Xenia Lease and as more
particularly described in EXHIBIT A-6 attached hereto and incorporated herein by
reference.
Xenia Lease: That certain First Amended and Restated Facility Lease,
dated as of January 8, 1998, by and between Meditrust Acquisition Corporation II
and TC Realty Corporation IV.
Xenia Lessee: TC Realty Corporation IV, a Delaware corporation.
2. OPTION. Subject to the provisions hereof, the Buyer shall have the
right but not the obligation to acquire and the Seller shall have the obligation
to transfer all of its right, title and interest in the Leased Property;
provided, that, at the time of the consummation of the closing relating to any
Facility and the applicable portion of the Leased Property relating thereto
(each, a "Closing"), subject to Sections 8.1 and 9.1 hereof, (a) the Seller
shall have fulfilled all of its obligations hereunder with respect to such
Facility and the applicable portion of the Leased Property relating thereto and
all conditions precedent to the Seller's obligations to consummate the
applicable Closing set forth in Section 9 of this Agreement shall be satisfied
and (b) all of the conditions precedent to the Buyer's obligation to consummate
the applicable Closing set forth in Section 8 of this Agreement shall be
satisfied (the matters referred to in the foregoing clauses (a) and (b) are
collectively referred to herein as the "Closing Conditions").
The Buyer's right to acquire the Seller's interest in any Facility and
the applicable portion of the Leased Property relating thereto (the "Option
Right") shall be exercisable, upon not less than thirty (30) days' prior written
notice (the "Option Notice") during the Exercise Period; provided, however, that
notwithstanding anything to the contrary set forth herein, the Buyer may not
exercise its Option Right with respect to any single Facility, but rather may
only exercise its Option Right with respect to groups of Facilities equal to
three (3) or more. Once given, each Option Notice shall be irrevocable and any
failure to acquire the Facilities identified in any Option Notice in accordance
with the terms hereof shall constitute a Buyer Default. Subject to the
provisions of Section 10 hereof, the
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Closing relating to any Facility (and the applicable portion of the Leased
Property relating thereto) with respect to which the Buyer has exercised its
Option Right shall occur on the specific date designated by the Buyer in the
Option Notice, which date shall be within the Exercise Period or no later than
thirty (30) days thereafter. The Closings relating to the Facilities identified
in any Option Notice shall occur on the same date (and the Option Notice shall
so specify).
3. FACILITY PURCHASE PRICE. In consideration for the Seller's agreement
to convey the Leased Property to the Buyer in accordance with the terms hereof,
at the Closing relating to any Facility (and the applicable portion of the
Leased Property relating thereto), as long as at the time of such Closing, the
applicable Closing Conditions shall have been satisfied, then, the Buyer shall
pay to the Seller, the applicable Facility Purchase Price for such Facility set
forth on EXHIBIT B attached hereto and incorporated herein by reference. The
applicable Facility Purchase Price shall be paid by the Buyer to the Seller at
such Closing by wire transfer of funds without adjustment of any kind or nature
except as may be otherwise expressly set forth herein.
4. SELLER'S REPRESENTATIONS. As a material inducement to the Buyer to
enter into this Agreement and to purchase the Leased Property, the Seller makes
the following representations and warranties to the Buyer, which representations
and warranties are true as of the date of this Agreement and, as a condition of
the Buyer's obligation to consummate the transactions contemplated hereunder,
except as otherwise expressly provided herein, shall be true and correct as of
each Closing Date; provided, that, subject to the provisions of Section 8.1 of
this Agreement, such representations and warranties shall be treated as modified
as of the applicable Closing, and without breach of the foregoing obligation of
the Seller, by the Seller's delivery at such Closing of a certification in
substantially the form attached hereto as EXHIBIT C and incorporated herein by
reference, reflecting the occurrence of any event or change in the state of
facts effective after the date hereof and prior to the applicable Closing
relating to the representations and warranties made by the Seller (the "Seller's
Closing Certification"). The following representations and warranties (as the
same may be modified by any Seller Closing Certification with such modifications
being reasonably acceptable to the Buyer) shall survive each Closing for a
period of one year and any earlier termination of this Agreement for a period of
one year.
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4.1 Existence; Power; Qualification. The Seller is a limited liability
company duly organized, validly existing and in good standing under the laws of
the state of Delaware. The Seller has all requisite power and authority to own
and operate its properties and to carry on its businesses as presently operated
and to enter into and carry out the terms of the Transaction Documents to which
the Seller is or will be a party. The Seller is, or by the applicable Closing
Date will be, in good standing in each jurisdiction where such qualification is
necessary or desirable in order to carry out its business as presently
conducted, except where the failure to so qualify would not have a material
adverse effect on the financial condition and results of operations of the
Seller and its subsidiaries taken as a whole.
4.2 Valid and Binding. Subject to (i) the Lessees waiving the Lessees'
respective rights of first refusal to purchase portions of the Leased Property
pursuant to Section 18.3 of the Leases and (ii) with respect to any Lease to be
terminated at any Closing, the applicable Lessee waiving its option to purchase
set forth in Section 18.4 of such Lease, the Seller is duly authorized to make
and enter into this Agreement and to carry out the transactions contemplated
therein and is duly authorized to make and enter into all of the other
Transaction Documents to which it is or will be a party and to carry out the
transactions contemplated therein. This Agreement has been duly executed and
delivered by the Seller and is the legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its terms. All of the
other Transaction Documents to which the Seller is or will be a party have been,
or will be by the applicable Closing, duly executed and delivered by the Seller,
and each is, or will be by the applicable Closing, a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
their respective terms.
4.3 No Violation. The execution, delivery and performance of the
Transaction Documents to which the Seller is or will be a party and the
consummation of the transactions thereby contemplated shall not result in any
breach of, or constitute a default under, or result in the acceleration of, or
constitute an event which, with the giving of notice or the passage of time, or
both, could result in default or acceleration of any obligation of the Seller
under any permit, contract, mortgage, lien, lease, agreement, instrument,
franchise, arbitration award, judgment, decree, bank loan or credit agreement,
trust indenture or other instrument to which the Seller is a party or by which
the Seller
19
may be bound or affected and do not violate or contravene any requirements of
law.
4.4 Consents and Approvals. Subject to (i) the Lessees waiving the
Lessees' respective rights of first refusal to purchase portions of the Leased
Property pursuant to Section 18.3 of the Leases and (ii) with respect to any
Lease to be terminated at any Closing, the applicable Lessee waiving its option
to purchase set forth in Section 18.4 of such Lease, no consent or approval or
other authorization of, or exemption by, or declaration or filing with, any
Person and no waiver of any right by any Person is required to authorize or
permit, or is otherwise required as a condition of the execution, delivery and
performance of the Seller's obligations under the Transaction Documents to which
it is or will be a party.
4.5 FIRPTA Representation. The Seller is not a "foreign person" as that
term is defined in the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations promulgated pursuant thereto.
4.6 Nothing Omitted. None of the Transaction Documents to which the
Seller is or will be a party, nor any certificate, agreement, statement or other
document, now or hereafter prepared or executed by the Seller and furnished to
or to be furnished to the Buyer or its attorneys in connection with the
transactions contemplated by the Transaction Documents, contains or will contain
any untrue statement of a material fact relating to the Seller or omits or will
omit to state a material fact relating to the Seller necessary in order to
prevent all statements contained herein and therein relating to the Seller from
being misleading.
4.7 Pending Actions, Notices and Reports. There is no action or
investigation pending or, to the knowledge and belief of the Seller, threatened,
anticipated or contemplated (nor, to the knowledge of the Seller, is there any
reasonable basis therefor) against or affecting the Seller before any
Governmental Authority which could prevent or hinder the consummation of the
transactions contemplated hereby or call into question the validity of any of
the Transaction Documents to which the Seller is or will be a party or any
action taken or to be taken in connection with the transactions contemplated
thereunder.
5. THE BUYER'S REPRESENTATIONS. As a material inducement to the Seller
to enter into this Agreement, and to sell the Leased Property to the Buyer, the
Buyer makes the following representations and warranties to the Seller, which
20
representations and warranties are true as of the date of this Agreement and, as
a condition of the Seller's obligation to consummate the transactions
contemplated hereunder, except as otherwise expressly provided herein, shall be
true and correct as of each Closing Date; provided, that, subject to the
provisions of Section 9.1 of this Agreement, such representations and warranties
shall be treated as modified as of the applicable Closing, and without breach of
the foregoing obligation of the Buyer, by the Buyer's delivery at such Closing
of a certification in substantially the form attached hereto as EXHIBIT D and
incorporated herein by reference, reflecting the occurrence of any event or
change in the state of facts effective after the date hereof and prior to the
applicable Closing relating to the representations and warranties made by the
Buyer (the "Buyer Closing Certification"). The following representations and
warranties (as the same may be modified by any Buyer Closing Certification with
such modifications being reasonably acceptable to the Seller) shall survive each
Closing and any earlier termination of this Agreement.
5.1 Existence; Power; Qualification. IPC is a corporation duly
organized, validly existing and in good standing under the laws of the Grand
Duchy of Luxembourg. Balanced Care is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware. IPC and
Balanced Care each has all requisite corporate power to own and operate its
properties and to carry on its business as now conducted and to enter into and
carry out the Transaction Documents to which it is or will be a party and is
duly qualified to transact business and is, or by the applicable Closing Date
will be, in good standing in each jurisdiction where such qualification is
necessary or desirable in order to carry out its business as presently conducted
and as proposed to be conducted, except where the failure to so qualify would
not have a material adverse effect on the financial condition and results of
operations of IPC and its Subsidiaries taken as a whole and/or Balanced Care and
its Subsidiaries taken as a whole.
5.2 Valid and Binding. IPC and Balanced Care are each duly authorized
to make and enter into this Agreement and to carry out the transactions
contemplated therein and each is duly authorized to make and enter into all of
the other Transaction Documents to which it is or will be a party and to carry
out the transactions contemplated therein. This Agreement has been duly executed
and delivered by IPC and Balanced Care and is the legal, valid and binding
obligation of IPC and Balanced Care enforceable against IPC and Balanced Care in
accordance with its terms. All of the
21
other Transaction Documents to which IPC is or will be a party have been, or
will be by the applicable Closing Date, duly executed and delivered by IPC, and,
as of the applicable Closing Date, each will be a legal, valid and binding
obligation of IPC, enforceable in accordance with its terms. All of the other
Transaction Documents to which Balanced Care is or will be a party have been, or
will be by the applicable Closing Date, duly executed and delivered by Balanced
Care, and as of the applicable Closing Date, each will be a legal, valid and
binding obligation of Balanced Care, enforceable with its terms.
5.3 No Violation. The execution, delivery and performance of the
Transaction Documents to which IPC and/or Balanced Care as the case may be, is
or will be a party and the consummation of the transactions thereby contemplated
shall not result in any breach of, or constitute a default under, or result in
the acceleration of, or constitute an event which, with the giving of notice or
the passage of time, or both, could result in default or acceleration of any
obligation of IPC and/or Balanced Care, as the case may be, under any permit,
contract, mortgage, lien, lease, agreement, instrument, franchise, arbitration
award, judgment, decree, bank loan or credit agreement, trust indenture or other
instrument to which IPC and/or Balanced Care, as the case may be, is a party or
by which IPC and/or Balanced Care, as the case may be, may be bound or affected
and do not violate or contravene any requirements of law.
5.4 Consents and Approvals. No consent or approval or other
authorization of, or exemption by, or declaration or filing with, any Person and
no waiver of any right by any Person is required to authorize or permit, or is
otherwise required as a condition of the execution, delivery and performance of
IPC's and/or Balanced Care obligations under the Transaction Documents to which
it is or will be a party.
5.5 Pending Actions, Notices and Reports. There is no action or
investigation pending or, to the knowledge and belief of the Buyer, threatened,
anticipated or contemplated (nor, to the knowledge of the Buyer, is there any
reasonable basis therefor) against or affecting IPC and/or Balanced Care before
any Governmental Authority which could prevent or hinder the consummation of the
transactions contemplated hereby or call into question the validity of any of
the Transaction Documents to which IPC and/or Balanced Care, as the case may be,
is or will be a party or any action taken or to be taken in connection with the
transactions contemplated thereunder.
22
5.6 Nothing Omitted. None of the Transaction Documents to which IPC
and/or Balanced Care, as the case may be, is or will be a party, nor any
certificate, agreement, statement or other document, now or hereafter prepared
or executed by IPC and/or Balanced Care as the case may be, and furnished to or
to be furnished to the Seller by IPC and/or Balanced Care, as the case may be,
in connection with the transactions contemplated by the Transaction Documents,
contains or will contain any untrue statement of a material fact relating to IPC
and/or Balanced Care, as the case may be, or omits or will omit to state a
material fact relating to IPC and/or Balanced Care, as the case may be,
necessary in order to prevent all statements contained herein and therein from
being misleading.
6. CONDITION OF THE LEASED PROPERTY
6.1 AS-IS Condition. The Buyer acknowledges that (a) each Lessee
accepted receipt and delivery of the applicable portion of the Leased Property
that it leases from the Seller on or about the applicable Commencement Date, (b)
each of the Lessees, the Developers and the Managers examined and otherwise
acquired knowledge of the condition of the applicable portion of the Leased
Property prior to such date that the applicable Lessee acquired possession of
such portion of the Leased Property and found the same to be in good order and
repair and satisfactory for its purposes, (c) the Lessees, the Developers and/or
the Managers have been in possession of the Leased Property from and after such
dates, (d) IPC and Balanced Care, being Affiliates of the Lessees (other than
the Third Party Lessees), the Developers and the Managers has independent and
thorough knowledge of the Leased Property, the title thereto and all matters
affecting the same, (e) the Buyer has made its own inquiry and investigation
into, and based thereon will have formed an independent judgment concerning the
Leased Property and the operation thereof and is not relying on Seller for any
facts or information with respect thereto and (f) except for the express
representations and warranties contained in this Agreement or any of the other
Transaction Documents, the Seller is not making, and the Buyer is not relying
upon, any representation or warranty, express or implied, of any nature
whatsoever with respect to the Leased Property. Consequently, IPC and Balanced
Care (on behalf of themselves and all Designees) waive any and all claims and
causes of action, now or hereafter arising, against the Seller in respect of the
condition of the Leased Property. THE SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY, EITHER
AS TO ITS FITNESS FOR ANY PARTICULAR PURPOSE OR USE, ITS DESIGN OR CONDITION OR
OTHERWISE,
23
OR AS TO DEFECTS IN THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT
OR PATENT; IT BEING AGREED THAT ALL RISKS RELATING TO THE DESIGN, CONDITION
AND/OR USE OF THE LEASED PROPERTY ARE TO BE BORNE BY THE BUYER. THE LESSEES, THE
DEVELOPERS, THE MANAGERS AND THE GUARANTORS HAVE ASSUMED (PURSUANT TO THE BCC
LEASE DOCUMENTS) AND, AS OF THE CONSUMMATION OF EACH CLOSING, THE BUYER ASSUMES
ALL RISK OF (I) THE PHYSICAL CONDITION OF THE APPLICABLE PORTION OF THE LEASED
PROPERTY BEING CONVEYED TO THE BUYER (OR TO THE APPLICABLE DESIGNEE), (II) THE
SUITABILITY OF SUCH PORTION OF THE LEASED PROPERTY FOR OPERATION IN ACCORDANCE
WITH ITS PRIMARY INTENDED USE, (III) THE COMPLIANCE OR NON-COMPLIANCE OF SUCH
PORTION OF THE LEASED PROPERTY WITH ALL APPLICABLE REQUIREMENTS OF LAW,
INCLUDING BUT, NOT LIMITED TO, ENVIRONMENTAL LAWS AND ZONING AND OTHER LAND USE
LAWS, (IV) ALL MATTERS THAT A SURVEY OF THE APPLICABLE PORTION OF THE LAND MAY
DISCLOSE AND (V) SUBJECT TO THE SELLER'S PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER, WHETHER TITLE TO THE LEASED PROPERTY IS INSURABLE. Without limiting
the foregoing, the Buyer acknowledges and agrees that, in connection with the
consummation of the transactions contemplated hereunder, in the event that the
Buyer obtains or seeks to obtain title insurance insuring its interest in the
Leased Property, the Seller shall not be obligated to provide any form of
representation or indemnification to the title insurance company issuing such
policy; provided, however, that the Seller shall provide to such title insurance
company (1) a copy of its operating agreement, (2) evidence of its authority to
execute and deliver the Transaction Documents to which it is a party, (3) the
certificate of the Seller referred to in Section 11.2(d) of this Agreement, (4)
evidence of the Seller's qualification to do business in the state where the
applicable portion of the Leased Property is located, (5) certificates of good
standing relating to the Seller from the state where the applicable portion of
the Leased Property is located and from the state of its formation, (6) any of
the other documents listed in Section 11.2(a)-(g) of this Agreement and (7)
evidence of the clearance of any Lien that does not constitute a Permitted
Encumbrance.
The provisions of this Section 6.1 are not intended to and shall not be
deemed to limit the express provisions set forth in any of the other Seller
Documents.
6.2 Casualty and Condemnation. The Buyer acknowledges and agrees that
if, between the date hereof and any Closing Date, all or any portion of the
Leased Property is damaged by any Casualty or if any Condemnation occurs, the
Buyer shall nevertheless remain obligated to perform its agreements hereunder
and to
24
consummate the transactions contemplated hereunder (to the extent that the Buyer
exercised its Option Right with respect to the applicable portion of this prior
or subsequent to such Casualty or Condemnation) and there shall be no adjustment
made to any Facility Purchase Price as a consequence of such Casualty or
Condemnation; provided, however, that, at any applicable Closing, as applicable,
the Seller shall pay over or assign to the Buyer as applicable all amounts
recovered or recoverable by the Seller on account of any insurance covering such
Casualty or all damage awards recovered or recoverable by the Seller for such
Condemnation.
7. COVENANTS OF THE PARTIES
7.1 BCC Lease Documents. Prior to the consummation of each Closing
hereunder, other than the Closing relating to any conveyance of the Potomac
Point Facility and the applicable portion of the Leased Property relating
thereto, the Buyer shall cause the Stock Transfers to be consummated in
accordance with the terms of the Leases.
Simultaneously with the exercise of its Option Right with respect to
any Facility (and the applicable portion of the Leased Property relating
thereto), the Buyer shall notify the Seller in writing whether the Buyer elects
to take title (or cause its Designee to take title) to the Leased Property
subject to the applicable Lease. In the event that the Buyer so elects, at the
applicable Closing, the Buyer or its Designee shall assume the Seller's
obligations under the applicable BCC Lease Documents pursuant to an assignment
and assumption agreement and any other documents as are reasonably requested by
the Seller (collectively, the "Assignment and Assumption Documents"). Without
limiting the foregoing, it is acknowledged and agreed that the Assignment and
Assumption Documents shall be in materially the same form as the assignment and
assumption documents entered into between various Balanced Care Entities and the
Seller in connection with the sale of the Tranche 1 Properties).
If the Buyer does not elect to take title (or cause its Designee to
take title) to any Facility (and the applicable portion of the Leased Property
relating thereto) subject to the applicable Lease, then, at the applicable
Closing, (i) the Seller agrees to terminate the applicable BCC Lease Documents
relating to such portion of the Leased Property pursuant to documents reasonably
acceptable to the Seller (collectively, the "Lease Termination Documents") and
(ii) the Buyer agrees to cause the
25
applicable Lessee to execute such Lease Termination Documents. Without limiting
the foregoing, it is acknowledged and agreed that the Lease Termination
Documents shall be in materially the same form as the lease termination
documents entered into between various Balanced Care Entities and the Seller in
connection with the sale of the Tranche 1 Properties.
At each Closing, no matter whether any particular Lease is assigned or
terminated, the Buyer acknowledges (and will cause each applicable Lessee and
Designee to acknowledge) that, other than the disposition of the Cash Collateral
in accordance with the terms hereof, no other adjustments will be made under the
BCC Lease Documents and/or with respect to the Leased Property for Impositions,
utility costs or any other matter. At each Closing, the Buyer (or applicable
Designee) shall direct the Seller as to the disposition of the Cash Collateral
held by the Seller under the applicable Deposit Pledge Agreement (as defined
under such Lease) and the Seller shall comply with such direction as long as the
applicable Lessee assents in writing to such direction.
7.2 Publicity. All press releases, filings and other publicity
concerning the transactions contemplated hereby will be subject to review and
approval by the Seller and the Buyer, such approval not to be unreasonably
withheld or delayed. Such approval shall not be required if the Person issuing
any such publicity reasonably believes it to be necessary for compliance with
law, but such Person shall provide the other party with reasonable notice and an
opportunity to review same before any such release. The Seller and the Buyer
hereby covenant and agree to keep the terms and conditions of this Agreement
confidential except to the extent that disclosure is required by law; provided,
however, it is acknowledged and agreed that the parties hereto may disclose this
Agreement to their respective lenders, to the professional advisors and
consultants that are advising them or providing necessary professional services
in connection with the transactions contemplated hereby and to any Governmental
Authorities.
7.3 Costs and Fees. The Buyer shall be responsible for payment of all
closing costs in connection with the transfer of the Leased Property, including,
without limitation, recording fees, stamp taxes, document taxes, transfer fees
and any other payments in the nature of or in lieu of transfer fees.
Each party shall pay all costs incurred by it in connection with the
preparation, negotiation and performance of this Agreement; provided, however,
that, in the event of any
26
litigation between the parties arising under this Agreement, the prevailing
party shall be reimbursed all reasonable costs incurred in connection with such
litigation (including, without limitation, attorneys' fees and expenses) by the
non-prevailing party.
7.5 Right of First Refusal and Option to Purchase. In the event that
the Buyer exercises its Option Right with respect to any Facility (and the
applicable portion of the Leased Property relating thereto), at or prior to the
applicable Closing, (i) the Buyer shall cause the applicable Lessee to waive the
right of first refusal granted to such Lessee pursuant to Section 18.3 of the
applicable Lease and (ii) if the applicable BCC Lease Documents relating to such
Facility (and the applicable portion of the Leased Property relating thereto)
are to be terminated at the Closing in accordance with the terms of Section 7.1
hereof, the Buyer shall cause the applicable Lessee to waive the purchase option
granted to such Lessee pursuant to Section 18.4 of the applicable Lease.
7.6 Title Review. At each Closing, if the Closing Conditions have been
satisfied (or waived), the Seller shall deliver title to the applicable Facility
and the portion of the Leased Property relating thereto to the Buyer (or, if
applicable, to a Designee), subject only to the applicable Permitted Exceptions
relating to such Facility (and the applicable portion of the Leased Property
relating thereto). If, on or before the applicable Closing Date, the Buyer
determines that title to the portion of the Leased Property to be conveyed is
subject to any matter other than the applicable Permitted Exceptions, the Buyer
shall provide the Seller with written notice that title to such portion of the
Leased Property is subject to any matters other than such applicable Permitted
Exceptions (the "Title Objection Notice"). The Title Objection Notice shall
identify with specificity the objections asserted by the Buyer and the
applicable Closing Date shall be extended in accordance with Section 10 of this
Agreement in order to allow the Seller to remove all defects in title.
Notwithstanding anything to the contrary set forth herein, but without
implying, in any way, that (i) the Buyer's obligations hereunder are subject to
a financing contingency or (ii) the Buyer may object to any Permitted Exceptions
or refuse to accept title to any portion of the Leased Property because such
portion of the Leased Property is subject to the Permitted Exceptions; in the
event that any Person (including, without limitation, any Designee) financing
the Buyer's acquisition of
27
any portion of the Leased Property refuses to consummate such financing
transaction due to the existence of any Permitted Exceptions (the "Optional
Title Matters"), then (1) the Buyer shall notify the Seller in writing (the
"Optional Title Notice") that its lender refuses to finance the Buyer's
acquisition of the Leased Property due to the Optional Title Matters and (2) the
Seller shall cooperate with all reasonable requests from the Buyer in connection
with any efforts made by the Buyer (at the Buyer's sole cost and expense) to
release, remove and/or otherwise correct, satisfy or address the Optional Title
Matters, including, without limitation, executing and delivering any instrument
required because the Seller is the record title holder to the Leased Property
(as long as the Seller is not required to assume or undertake any obligations
under any such instrument or make any representations regarding the Leased
Property).
Notwithstanding anything to the contrary set forth herein, in the event
that the Buyer has exercised its Option Right with respect to any Facility, in
accordance with the terms hereof, any subsequent failure by the Buyer to
consummate any Closing in accordance with the terms hereof because of any
Optional Title Matter (provided that all of the other Closing Conditions
precedent to the Buyer's obligation to consummate such Closing have been
satisfied) shall constitute a Buyer Default.
7.7 Use of Purchase Money to Clear Title. To enable the Seller to
deliver title to all or any portion of the Leased Property, the Seller may, at
the time of delivery of the applicable deed, use all or any portion of the
applicable Facility Purchase Price to clear title of any or all encumbrances or
interests, provided, that all instruments so procured are recorded
simultaneously with the delivery of the applicable deed or, in the case of
institutional liens, provided, that, arrangements in accordance with customary
conveyancing practices are made for a discharge to be promptly procured,
recorded or filed after the delivery of the applicable deed.
8. THE BUYER'S CONDITIONS PRECEDENT TO EACH CLOSING. Each Closing and
the Buyer's obligations hereunder and with respect thereto are expressly
contingent and conditional upon the fulfillment, compliance, satisfaction and
performance of each of the following conditions prior thereto, any one or more
of which may be waived or deferred in whole or in part, but only in writing, by
the Buyer at its option and sole discretion. Notwithstanding the foregoing, any
condition precedent to any Closing which has not been fulfilled, complied with,
satisfied or performed at or prior to the applicable Closing Date shall be
28
conclusively deemed waived if the Buyer consummates such Closing despite the
lack of fulfillment, compliance with, satisfaction or performance of such
condition.
8.1 Accuracy of Warranties; Compliance with Covenants. Notwithstanding
anything to the contrary set forth herein, all of the covenants and agreements
made by the Seller in this Agreement with respect to the applicable Facility
(and the portion of the Leased Property relating thereto) shall have been fully
and timely performed, in all material respects, and the Buyer shall have
received a Seller's Closing Certification, dated as of the applicable Closing
Date, reasonably acceptable to the Buyer in all material respects.
8.2 Absence of Injunction. There shall be no injunction, or any order
of any nature issued by or pending before any Governmental Authority directing
that the applicable conveyance or any other transactions relating to the
applicable Facility (and the applicable portion of the Leased Property relating
thereto) contemplated by this Agreement not be consummated.
8.3 Absence of Seller Default. A Seller Default relating to the
applicable Facility shall not have occurred.
9. THE SELLER'S CONDITIONS PRECEDENT TO EACH CLOSING. Each Closing and
the Seller's obligations hereunder and with respect thereto are expressly
contingent and conditional upon the fulfillment, compliance, satisfaction and
performance of each of the following conditions prior thereto; any one or more
of which may be waived or deferred in whole or in part, but only in writing, by
the Seller at its option and sole discretion. Notwithstanding the foregoing, any
condition precedent to any Closing which has not been fulfilled, complied with,
satisfied or performed at or prior to the applicable Closing Date shall be
conclusively deemed waived if the Seller consummates such Closing despite the
lack of fulfillment, compliance with, satisfaction or performance of such
condition.
9.1 Accuracy of Warranties; Compliance with Covenants. Notwithstanding
anything to the contrary set forth herein, all of the covenants and agreements
made by the Buyer in this Agreement shall have been fully and timely performed,
in all material respects, and the Seller shall have received a Buyer Closing
Certification, dated as of the applicable Closing Date, reasonably acceptable to
the Seller in all material respects.
29
9.2 Absence of Injunction. There shall be no injunction, or any order
of any nature issued by or pending before any court or Governmental Agency
directing that the applicable conveyance or any other transactions relating to
the applicable Facility (and the applicable portion of the Leased Property
relating thereto) contemplated by this Agreement not be consummated.
9.3 Concurrent Payment of Applicable Required Prepayment under the
Promissory Note. In accordance with the terms of the Promissory Note, the Buyer
shall have paid the Seller an amount equal to the Required Prepayment relating
to the applicable Facility (and the applicable portion of the Leased Property
relating thereto) to be conveyed to the Buyer (or its Designee) at the Closing
as set forth on Exhibit A of the Note, to be applied toward the outstanding
indebtedness under the Promissory Note.
9.4 Payments under Lease Documents. Without limiting the provisions set
forth in Section 7.1, (i) any amounts that are due and outstanding under the
applicable BCC Lease Documents, relating to the applicable Facility (and the
applicable portion of the Leased Property relating thereto) to be conveyed to
the Buyer (or its Designee), as of the applicable Closing Date, shall be paid to
the Seller by the applicable Lessee on or prior to such Closing Date, including,
without limitation, all Rent due under the applicable Lease, prorated as of such
Closing Date, and (ii) notwithstanding anything to the contrary set forth in the
applicable Lease, the applicable Lessee shall have paid to the Seller an amount
equal to the Seller's reasonable estimate of the Additional Rent due for the
quarter in which the applicable Closing occurs (the "Closing Quarter") and shall
have agreed to the provisions set forth in this Section 9.4. Within ninety (90)
days after the applicable Closing Date, the Buyer shall deliver to the Seller an
Officer's Certificate reasonably acceptable to the Seller and certified by the
chief financial officers of such Lessee and Balanced Care, setting forth the
Gross Revenues for the period from the commencement of the Closing Quarter
through the applicable Closing Date. A final reconciliation of the Additional
Rent due for the Closing Quarter shall be made based upon such Officer's
Certificate. If, as a result of such reconciliation, (a) the Additional Rent
determined to be due for the Closing Quarter exceeds the amount paid by such
Lessee at the applicable Closing, the Buyer agrees to pay (or cause the Lessee
to pay) such difference to the Seller within ten (10) days after such final
reconciliation or (b) the Additional Rent determined to be due for the Closing
Quarter is less than the amount paid by the Lessee at such Closing, the Seller
agrees to refund such
30
overpayment to such Lessee within ten (10) days after such final reconciliation.
The provisions of this Section 9.4 shall survive the Closings.
9.5 Lessee's Right of First Refusal. The applicable Lessee shall have
waived such Lessee's right of first refusal to purchase the applicable portion
of the Leased Property pursuant to Section 18.3 of the applicable Lease.
9.6 Lessee's Option to Purchase. In the event that the Buyer has
directed the Seller to terminate the applicable Lease relating to the Facility
(and the portion of the Leased Property relating thereto) to be conveyed to the
Buyer (or its Designee) at the applicable Closing, the applicable Lessee shall
have waived such Lessee's right to purchase such portion of the Leased Property
pursuant to Section 18.4 of the applicable Lease.
9.7 Termination or Assignment of Lease. The provisions of Section 7.1
hereof shall have been satisfied.
9.8 Stock Transfers. The Stock Transfers shall have been consummated in
accordance with the terms of the Leases.
10. EXTENSION. If the Seller shall be unable to give title to any
Facility and the applicable portion of the Leased Property relating thereto on
the applicable Closing Date, subject only to the Permitted Exceptions relating
to such Facility (and the applicable portion of the Leased Property relating
thereto), or if all of the applicable Closing Conditions precedent to the
Buyer's obligation to consummate the applicable acquisition shall not have been
satisfied on or before such Closing Date, the Buyer shall so notify the Seller
on or prior to such Closing Date; whereupon, in order to allow the Seller to so
perform or for such Closing Conditions to be satisfied, such Closing Date shall
be extended for a period not to exceed thirty (30) days. During such extended
period of time, the Seller shall use diligent efforts to remove any defects in
title and the parties hereto shall use diligent efforts to cause such Closing
Conditions to be satisfied.
At either the original or extended time for performance, the Buyer
shall have the election to accept such title to such Facility (and the
applicable portion of the Leased Property relating thereto) as the Seller can
deliver (in its then condition) and/or to waive any unsatisfied Closing
Conditions and to pay the applicable Facility Purchase Price for such Facility
(and the applicable portion of the Leased Property relating
31
thereto) without deduction; in which case, subject to the provisions of Section
9 hereof, the Seller shall convey such title to such Facility (and the
applicable portion of the Leased Property relating thereto) as it can deliver
and the applicable Closing shall be consummated in accordance with the terms
hereof. In the event that, at the extended time for performance, (a) the Seller
shall be unable to give title to such Facility )and the applicable portion of
the Leased Property relating thereto), subject only to the Permitted Exceptions
relating to such Facility (and the applicable portion of the Leased Property
relating thereto) and the Buyer does not elect to accept such title to such
Facility (and the applicable portion of the Leased Property relating thereto) as
the Seller can deliver and/or (b) the Closing Conditions precedent to the
Buyer's obligation to consummate the acquisition of such Facility (and the
applicable portion of the Leased Property relating thereto) have not been
satisfied or waived, then, the Buyer's option relating to such Facility and the
applicable portion of the Leased Property relating thereto shall terminate as of
the applicable Closing Date, as so extended, without recourse to the parties,
except as otherwise provided herein to survive such termination.
11. CLOSINGS
11.1 Closing Dates. Each Closing under this Agreement shall take place
at the offices of Xxxxxx, XxXxxxxxx & Fish, LLP, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx at 10:00 a.m. on the date specified in the Option Notice
in accordance with the terms of Section 2 hereof or at such other time and place
mutually agreed upon in writing by the Buyer and the Seller (such date of each
Closing being referred to herein as a "Closing Date"). Notwithstanding the
foregoing, the Seller and the Buyer acknowledge that the parties hereto are
willing to consummate the Closings by utilizing a nationally recognized title
insurance company designated by the Buyer as escrow agent for the delivery of
the Transaction Documents required hereunder by mail, subject to such escrow
arrangements as are reasonably acceptable to the Seller and the Buyer.
11.2 Deliveries of the Seller at each Closing. At each Closing, the
Seller shall deliver to the Buyer the following:
(a) A deed to the applicable portion of the Land with
covenants against only the actions of the grantor, in substantially the same
form as the deed conveying the Land to Meditrust Acquisition Corporation II.
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(b) Certificate of the Manager of the Seller, authorizing the
transactions contemplated hereunder.
(c) The Seller's Closing Certification, certifying that,
subject to Section 8.1 and the first paragraph of Section 4 of this Agreement,
all of the representations and warranties made by the Seller in this Agreement
are true and correct as of the applicable Closing Date.
(d) Certificate of the Seller, executed under the pains and
penalties of perjury, stating that the Seller is not a "foreign person", as
defined in Section 1445(f) of the Code and the regulations issued thereunder, in
order to comply with Section 1445(b)(2) and the regulations issued thereunder,
in such form as the Buyer may require in its reasonable discretion or the title
insurance company issuing the title policy may reasonably require.
(e) A certification of the information necessary to complete
and file with the Internal Revenue Service a Form 1099-S in connection with the
conveyance of the applicable portion of Land.
(f) Any applicable Termination Documents or Assignment and
Assumption Documents executed by the Seller.
(g) Any other documents required under applicable local law to
(i) convey the applicable portion of the Leased Property to the Buyer or the
applicable Designee, (ii) to record the deed or other conveyancing documents
and/or (iii) to terminate or assign the applicable Lease.
(h) Any other applicable Seller Documents.
(i) Payment of the applicable Cash Collateral in accordance
with the terms of Section 7.1 hereof.
11.3 Deliveries of the Buyer at each Closing. At each Closing, the
Buyer shall deliver to the Seller the following:
(a) Payment of the applicable Facility Purchase Price in
accordance with Section 3 hereof.
(b) a Buyer Closing Certification, certifying that, subject to
Section 9.1 and the first paragraph of Section 5 of this Agreement, all of the
representations and warranties made by
33
the Buyer in this Agreement are true and correct as of the applicable Closing
Date.
(c) Certificate of resolutions of the board of directors of
Balanced Care, authorizing the transactions contemplated hereby, certified by
the Secretary of Balanced Care.
(d) Certificate of the Secretary of Balanced Care as to
incumbency and other related matters.
(e) Documents reasonably acceptable to the Seller, evidencing
all requisite corporate authorization needed by IPC to authorize the
transactions contemplated hereby.
(f) Any applicable Termination Documents or Assignment and
Assumption Documents executed by the Buyer (or its Designee) and/or the
appropriate Balanced Care Entities.
(g) Any other documents required to be executed by the Buyer
or the applicable Designee(s) under applicable local law to (i) effectuate the
conveyance of the applicable portion Leased Property to the Buyer or the
Designee, (ii) to record the deed or other conveyancing documents and/or (iii)
to terminate or assign the applicable Lease.
(h) Any other applicable Buyer Documents.
(i) Payment of the amounts due under Section 9.3 and Section
9.4 hereof.
12. REMEDIES. The rights and remedies of the Buyer hereunder may be
enforced at law or in equity. The agreements, covenants and obligations of the
Seller under this Agreement shall be deemed of the essence and every breach
thereof material to the Buyer and special, unique and extraordinary so that any
breach thereof shall be deemed to cause the Buyer irreparable injury justifying
a decree of specific performance by a court of competent jurisdiction and not
properly compensable solely by money damages in an action at law. Therefore, in
the event that the Buyer shall institute any action to enforce the provisions of
this Agreement, the Seller hereby acknowledges that (a) the Buyer does not have
an adequate remedy at law and that injunction, specific performance or other
equitable relief will not constitute any hardship on the Seller and (b) if the
Buyer prevails on any such action, the Seller shall reimburse the Buyer for all
reasonable out-of-pocket expenses (including, without
34
limitation, attorneys' fees and expenses) reasonably incurred by the Buyer in
connection with such action.
If, after exercising its Option Right in accordance with the terms
hereof, the Buyer shall fail to consummate any Closing, notwithstanding the
satisfaction of all Closing Conditions relating thereto (a "Buyer Default"), the
sole remedies, at law or in equity, of the Seller as a consequence of any such
Buyer Default shall be (i) to accelerate the amount due under the Promissory
Note and to exercise its rights and remedies under the Promissory Note as a
consequence of the Buyer Default (which constitutes an Event of Default under
the Promissory Note) and the acceleration of the amounts due thereunder, (ii) to
be reimbursed by the Buyer for all reasonable out-of-pocket expenses (including,
without limitation, attorneys' fees and expenses) reasonably incurred by Seller
in connection with (x) any preparation for the applicable Closing or Closings
that were not consummated as a consequence of the Buyer Default and (y) the
enforcement of the Seller's rights and remedies hereunder and under the
Promissory Note and (iii) to terminate this Option Agreement; and the Seller
shall have no right or be entitled to bring an action for specific performance
or for any other damages whatsoever.
The provisions of this Section 12 shall survive the Closings
consummated hereunder and any termination of this Agreement.
13. ADJUSTMENTS. Except as otherwise expressly provided herein, no
adjustments to any Facility Purchase Price shall be made between the parties
hereto as a result of the consummation of the transactions contemplated
hereunder.
14. SURVIVAL OF PROVISIONS IN THE LEASE DOCUMENTS. Without limiting the
provisions set forth in Section 7.1, nothing set forth herein shall be deemed to
amend or modify any Lease or affect any of the Lessees' respective obligations
thereunder, including, without limitation, the (a) indemnification provisions of
the Leases and the other BCC Lease Documents and (b) other provisions set forth
in the Leases and the other BCC Lease Documents which by their express terms
provide that they will survive the expiration or earlier termination of the
Leases (including, without limitation, subject to the provisions of Section 9.4
of this Agreement, the obligation to pay Additional Rent), which shall survive
and not be deemed waived by the execution and delivery of this Agreement or the
consummation of any Closing and/or the expiration or earlier termination of any
Lease.
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15. MISCELLANEOUS.
15.1 No Broker. Each of the parties represents to the others that no
agent, finder or broker has acted for it or was the producing and effective
cause of this Agreement or the transactions contemplated hereby, and that no
commissions or finder's fees are due by it to any third parties. The Buyer
agrees to indemnify, exonerate and hold the Seller harmless from and against any
claim, loss, damage, cost or liability for any brokerage commission or fee which
may be asserted against the Seller as a result of the Buyer's breach of this
warranty. The Seller agrees to indemnify, exonerate and hold the Buyer harmless
from and against any claim, loss, damage, cost or liability for any brokerage
commission or fee which may be asserted against the Buyer as a result of the
Seller's breach of this warranty. The provisions in this Section shall survive
the consummation of the Closings contemplated hereunder or any earlier
termination of this Agreement.
15.2 Entire Agreement. This Agreement, together with the Exhibits
attached hereto contains the entire understanding of the parties with respect to
the subject matters hereof and supersedes all prior and other contemporaneous
oral or written understandings and agreements between the parties hereto,
including, without limitation, the Letter Agreement. Without limiting the
foregoing, it is acknowledged and agreed that the Letter Agreement is of no
further force and effect.
15.3 Binding Effect; Assignment. This Agreement, shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Neither IPC nor Balanced Care may assign its rights
hereunder without the prior written consent of the Seller, which consent may be
withheld in its sole discretion; provided, however, that, upon prior written
notice to the Seller from the Buyer, the Buyer may designate one or more
Designees to take title to all or any portion of the Leased Property to be
conveyed hereunder. The Buyer acknowledges and agrees that notwithstanding any
such designation, the Buyer shall not be released from any of its obligations
hereunder. The Seller acknowledges and agrees that any Designee's obligations
shall be limited solely to acceptance of transfer and delivery of the applicable
portion of the Leased Property, to be performed as of the applicable Closing
Date and as part of the applicable Closing, and no Designee shall be responsible
for, and the Seller releases each Designee from, any and all other agreements,
covenants, warranties, obligations and liabilities of the Buyer hereunder and
under the other Buyer
36
Documents, including, without limitation, the Buyer's obligation to pay each
applicable Facility Purchase Price and all obligations to be performed by the
Buyer subsequent to any Closing.
15.4 Notices. Any notice, demand, offer or other writing required or
permitted pursuant to this Agreement shall be in writing (each, a "Notice"). Any
Notice shall be (i) personally delivered, (ii) sent by certified mail, return
receipt requested or (iii) sent by nationally recognized commercial overnight
delivery service, with provision for a receipt, postage or delivery charges
prepaid and, in each instance, sent simultaneously by facsimile transmission.
Any Notice shall be deemed given when hand delivered, postmarked or placed in
the possession of such mail or delivery service, as the case may be (provided,
that, in each instance, a copy of such Notice was simultaneously sent by
facsimile transmission) and shall be addressed as follows:
(a) If to the Buyer:
IPC Advisors S.a.r.l.
00-00 Xxx Xxxxx Xxxxx
Xxxxxxxxxx X-0000
Fax: 000 000 000 000
Attn: X.X. Xxxxxxxx
and
Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: President
37
With copies to:
IPC Advisors S.a.r.l.
c/o Unsworth & Associates
Xxxxxxxxxxx 000
0000 XX
Xxxxxxxxx
Fax: 000-00000000000
Attn: X.X. Xxxxxxxx
and
Xxxxxxx Xxxxxxxx and Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx, Esq.
and
Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
and
Xxxxxxxxxxx & Xxxxxxxx LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
(b) If to the Seller:
New Meditrust Company LLC
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Chief Operating Officer
38
With copies to:
New Meditrust Company LLC
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: General Counsel
and
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxxx, Esq.
Either party shall have the right to change the place to which such notice shall
be given by similar notice sent in like manner to the other party hereto. Any
such notice, if sent by such overnight delivery service, shall be deemed
delivered on the earlier of the date of actual delivery or the next business day
following deposit, postage prepaid, with such overnight delivery service and if
delivered by hand delivery shall be deemed delivered on the date of the actual
delivery and if sent by mail, shall be deemed delivered on the earlier of the
third day following deposit with the U.S. Postal Service or actual delivery.
15.5 Captions. The captions of this Agreement are for convenience and
reference only, and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provisions hereof.
15.6 Joint Effort. The preparation of this Agreement has been the joint
effort of the parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
15.7 Counterparts. This Agreement may be executed in counterparts and
each executed copy shall be deemed an original which shall be binding upon all
parties hereto.
15.8 Partial Invalidity. If any provision of this Agreement shall be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby. Notwithstanding the foregoing, it is the intention of the parties
hereto that if any provision of any of this Agreement is capable of two (2)
39
constructions, one of which would render the provision void and the other of
which would render the provision valid, then such provision shall be construed
in accordance with the construction which renders such provision valid.
15.9 No Offer. Neither the negotiations to date nor the preparation of
this Agreement shall be deemed an offer by any party to the other. No such
contract shall be deemed binding on any party until such party has executed and
delivered a written agreement.
15.10 Amendments. This Agreement may not be amended in any respect
whatsoever except by a further agreement, in writing, fully executed by each of
the parties.
15.11 Exhibits. All Exhibits referred to in this Agreement shall be
incorporated into this Agreement by such reference and shall be deemed a part of
this Agreement as if fully set forth in this Agreement.
15.12 Governing Law. This Agreement including the validity thereof and
the rights and obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
(including, without limitation, principles of conflicts of law).
IPC and Balanced Care each hereby consents to personal jurisdiction in
any state or Federal court located within the Commonwealth of Massachusetts, as
well as to the jurisdiction of all courts from which an appeal may be taken from
the aforesaid courts, for the purpose of any suit, action or other proceeding
arising out of or with respect to this Agreement and/or any of the other
Transaction Documents, the negotiation and/or consummation of the transactions
contemplated by the this Agreement and the other Transaction Documents and/or
the performance of any obligation or the exercise of any remedy under any of the
Transaction Documents and IPC and Balanced Care each expressly waives any and
all objections it may have as to venue in any of such courts.
15.13 Third Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any Persons other than the parties hereto, their respective legal
representatives, successors and permitted assigns. No Person, other than the
Buyer and the Seller may rely hereon or derive any benefit hereby as a third
party beneficiary or otherwise.
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15.14 Further Assurances. From time to time before or after any
Closing, at no additional consideration, the parties hereto each agree that they
will promptly execute and deliver all additional documents and perform (or cause
the performance of) any other acts that may be reasonably requested in order to
effectuate the intent of this Agreement and to consummate the transactions
contemplated hereby.
15.15 No Solicitation. From the date of this Agreement until its
termination, the Seller shall not, directly or indirectly, through any of its
officers, directors, employees, representatives or agents, encourage, solicit or
initiate discussions or negotiations with, or knowingly provide any information
to, any Person (other than the Buyer and its agents and representatives)
concerning the sale of the Leased Property; provided, however, that from and
after the earlier to occur of (i) a Buyer Default or (ii) November 30, 2000, the
Seller may enter into any such discussions or negotiations regarding the
portions of the Leased Property that have not been conveyed to the Buyer or its
Designee(s).
15.16 Time of the Essence. Time is of the essence of each and every
term, condition, covenant and warranty set forth herein.
15.17 Rules of Construction. References in this Agreement to "herein,"
"hereof" and "hereunder" shall be deemed to refer to this Agreement and shall
not be limited to the particular text in which such words appear. The use of any
gender shall include all genders, and the singular number shall include the
plural and vice versa as the context may require.
15.18 Joint and Several Liability. IPC and Balanced Care are fully
liable for all obligations of the Buyer hereunder, and all such obligations
shall be joint and several. Notwithstanding the foregoing, it is acknowledged
and agreed that the Option Right hereunder may only be exercised jointly by IPC
and Balanced Care.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the date first above appearing.
SELLER:
NEW MEDITRUST COMPANY LLC, a Delaware
limited liability company
By:/s/Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx, Esq.
Title:Senior Vice President
BUYER:
IPC ADVISORS S.A.R.L., a Luxembourg
corporation
By:/s/X.X. Xxxxxxxx
Name:X.X. Xxxxxxxx
Title:Manager
BALANCED CARE CORPORATION, a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Senior Vice President and
Legal Counsel & Assistant Secretary
42
EXHIBIT B
Applicable Facility
Facility Purchase Price
Blytheville $3,206,236
Lewisburg $2,244,768
Lima $3,044,814
Potomac Point $2,459,821
Dillsburg $3,363,505
Xenia $5,877,130
Chippewa $3,500,125
Kingsport $3,182,312
Chesterfield $4,886,665
Hendersonville $3,565,920
Knoxville $6,993,413
Pocahontas $3,206,237
TOTAL $45,530,946
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EXHIBIT C
CERTIFICATE REGARDING THE SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is hereby made to that certain Option Agreement, dated as of
December , 1999 (the "Option Agreement"), by and among NEW MEDITRUST COMPANY
LLC, a Delaware limited liability company (the "Seller"), and IPC ADVISORS
S.A.R.L., a Luxembourg corporation and BALANCED CARE CORPORATION, a Delaware
corporation (collectively, the "Buyer"). The undersigned hereby certifies to the
Buyer [or the Buyer's Nominee] as follows:
There are no changes in the representations and warranties made by the
Seller in the Option Agreement [or, list changes here].
This Certification is being given to the Buyer [or the Buyer's Nominee]
incident to the consummation of the sale of the Seller's interest in the
Leased Property (as defined under the Option Agreement) and it is intended that
the Buyer [or the Buyer's Nominee] shall rely upon the contents and accuracy of
this Certification.
EXECUTED as a sealed instrument as of this day of ,
2000.
NEW MEDITRUST COMPANY LLC, a
Delaware limited liability company
By:
Name:
Title:
44
EXHIBIT D
CERTIFICATE REGARDING THE BUYER'S
REPRESENTATIONS AND WARRANTIES
Reference is hereby made to that certain Option Agreement, dated as of
December 30th, 1999 (the "Option Agreement"), by and among NEW MEDITRUST COMPANY
LLC, a Delaware limited liability company (the "Seller"), and IPC ADVISORS
S.A.R.L., a Luxembourg corporation and BALANCED CARE CORPORATION, a Delaware
corporation (collectively, the "Buyer"). The undersigned hereby certifies to the
Seller as follows:
There are no changes in the representations and warranties made by the
Buyer in the Option Agreement [or, list changes here].
This Certification is being given to the Seller incident to the
consummation of the sale of the Seller's interest in the Leased Property (as
defined under the Option Agreement) and it is intended that the Seller shall
rely upon the contents and accuracy of this Certification.
EXECUTED as a sealed instrument as of this day of , 2000.
IPC ADVISORS S.A.R.L., a Luxembourg
corporation
By:
Name:
Title:
BALANCED CARE CORPORATION,
a Delaware corporation
By:
Name:
Title:
