EXHIBIT 2.4
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AGREEMENT FOR PURCHASE AND SALE OF ASSETS
BY AND BETWEEN
ATRIA COMMUNITIES, INC.
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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December 15, 1997
TABLE OF CONTENTS
Section Page
1. Purchase and Sale of Assets............................................. 1
1.1 Acquisition Assets................................................ 1
1.2 Excluded Assets................................................... 2
1.3 Assumed Liabilities; No Assumption of Other Liabilities........... 3
2. Purchase Price; Deposit; Payment........................................ 3
2.1 Purchase Price; Deposit; Payment.................................. 3
2.2 Prorations........................................................ 3
2.3 Allocation of Purchase Price...................................... 4
3. Deposit; Escrow; Closing; Termination................................... 4
3.1 Escrow............................................................ 4
3.2 The Closing....................................................... 4
3.3 Actions Taken by Title Agent on Closing Date and Thereafter....... 5
3.4 Termination of Escrow............................................. 5
4. Representations and Warranties of Seller................................ 5
4.1 Authority; No Conflict............................................ 5
4.2 Absence of Certain Events......................................... 7
4.3 Assets Necessary To Business...................................... 7
4.4 Books and Records................................................. 8
4.5 Brokers........................................................... 8
4.6 Completeness of Statements........................................ 8
4.7 Contracts......................................................... 8
4.8 Current Compensation of Employee.................................. 8
4.9 Employee Benefits................................................. 9
4.10 Environmental Matters............................................. 9
4.11 Financial Statements.............................................. 10
4.12 Insurance......................................................... 10
4.13 Labor Matters..................................................... 11
4.14 Liabilities Not Disclosed On Balance Sheet........................ 11
4.15 Litigation........................................................ 11
4.16 Medicare, Medicaid and Other Third Party Payors................... 11
4.17 Permits........................................................... 11
4.18 Proprietary Property.............................................. 12
4.19 Taxes............................................................. 12
4.20 Title to Properties; Condition and Repair......................... 12
4.21 Real Property..................................................... 13
4.22 Utilities......................................................... 13
5. Representations and Warranties of Buyer................................. 14
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Section Page
5.1 Corporate Status............................................ 14
5.2 Authority; Consents; Enforcement: Noncontravention;
Noncompetes................................................. 14
5.3 No Agent or Broker.......................................... 14
6. Additional Covenants of the Parties.............................. 14
6.1 Access and Investigation.................................... 14
6.2 Operation of the Facility................................... 15
6.3 Required Consent............................................ 15
6.4 Notification................................................ 15
6.5 No Negotiation.............................................. 15
6.6 Approvals of Governmental Bodies............................ 16
6.7 Transition of the Facility.................................. 16
6.8 Seller's Employees and Employee Benefits.................... 16
6.9 Survey...................................................... 17
6.10 Title Insurance............................................. 17
6.11 Filing of Taxes; Payment.................................... 17
6.12 Sales and Other State Taxes................................. 18
6.13 Development Agreement....................................... 18
6.14 Non-Competition Agreement................................... 18
6.15 Further Assurances.......................................... 18
7. Conditions Precedent to Buyer's Obligation to Close.............. 18
7.1 Accuracy of Representations................................. 18
7.2 Seller's Performance........................................ 18
7.3 No Proceedings.............................................. 18
7.4 Consents.................................................... 19
7.5 Texas DHS Authorization..................................... 19
7.6 Other Documents............................................. 19
7.7 Title Policy................................................ 19
7.8 No Prohibition.............................................. 19
8. Conditions Precedent to Seller's Obligation to Close............. 19
8.1 Accuracy of Representations................................. 19
8.2 Buyer's Performance......................................... 20
8.3 No Injunction............................................... 20
8.4 Consents.................................................... 20
8.5 Definitive Agreements for Purchase and Sale of Other
Facilities.................................................. 20
8.6 Other Documents............................................. 20
9. Termination...................................................... 21
9.1 Termination Events.......................................... 21
9.2 Effect of Termination....................................... 21
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TABLE OF CONTENTS
Section Page
10. Deliveries and Actions To Be Taken At Closing........... 22
10.1 Deliveries by Seller............................... 22
10.2 Deliveries by Buyer................................ 22
11. Indemnification; Remedies............................... 23
11.1 Survival; Right to Indemnification................. 23
11.2 Indemnification and Payment of Damages By Seller... 23
11.3 Indemnification By Buyer........................... 23
11.4 Indemnity Claims................................... 24
11.5 Remedies; Right of Set-Off......................... 25
12. Miscellaneous Provisions................................ 25
12.1 Amendment; Waiver.................................. 25
12.2 Limited Assignment; Binding Effect................. 26
12.3 Construction and Interpretation of Agreement....... 26
12.4 Severability of Provisions......................... 26
12.5 Confidentiality of Certain Information............. 27
12.6 Confidentiality of Agreement....................... 27
12.7 Exhibits and Schedules............................. 27
12.8 Counterparts....................................... 28
12.9 Entire Agreement................................... 28
12.10 Expenses........................................... 28
12.11 Further Assurances................................. 28
12.12 Governing Law...................................... 28
12.13 No Public Announcement............................. 28
12.14 Notices............................................ 28
12.15 Recovery of Expenses by Prevailing Party........... 29
12.16 Seller's Knowledge................................. 29
12.17 Cumulative Remedies; Specific Performance.......... 29
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EXHIBITS
Description Exhibit
Certain Definitions.............................................. A
Assumed Contracts................................................ B
Purchase Price Allocation........................................ C
Survey Requirements.............................................. D
Development Agreement............................................ E
▇▇▇▇ of Sale..................................................... F
Assignment and Assumption Agreement.............................. G
Non-Competition Agreement........................................ H
SCHEDULES
Description Schedule
Authority, No Conflict and Organization, Seller's Consents....... 4.1
Absence of Certain Events........................................ 4.2
Employees and Compensation....................................... 4.8
Environmental Matters............................................ 4.10
Sellers' Financial Statements.................................... 4.11
Insurance........................................................ 4.12
Labor Matters.................................................... 4.13
Absence of Undisclosed Liabilities............................... 4.14
Litigation....................................................... 4.15
Permits.......................................................... 4.17
Personal Property................................................ 4.20
Real Property.................................................... 4.21
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AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Agreement for Purchase and Sale of Assets is entered into and
effective as of December 15, 1997, by and between Atria Communities, Inc., a
Delaware corporation ("Buyer") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual doing business
as Briarcliff Village Retirement Center ("Seller").
Recitals:
A. Seller operates Briarcliff Village Retirement Center and Personal Care
Center located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Facility").
The Facility has approximately 62 apartments licensed as a Class A Personal Care
Facility under Texas law and approximately 100 apartments designed for elderly
residents.
B. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer the Facility, and all of the assets and properties located at the Facility
and owned or used by Seller in operating the Facility, pursuant to the terms of
this Agreement.
C. In addition to the terms defined in this Agreement, certain other
terms used in this Agreement are in the Exhibit of Certain Defined Terms
attached to this Agreement as Exhibit A and such terms, when used in this
Agreement, have the meaning set forth in that Exhibit.
Agreement:
Now, Therefore, the parties hereby agree as follows:
1. Purchase and Sale of Assets.
1.1 Acquisition Assets. Upon the terms and subject to the conditions
of this Agreement, at the "Closing" on the "Closing Date" (as such terms are
defined in Section 3.2), Seller shall sell, transfer, convey, assign and deliver
to Buyer, and Buyer shall purchase and acquire from Seller, free and clear of
all Encumbrances (other than the "Permitted Encumbrances" (as defined in Section
7.7)), all of Seller's right, title and interest under, in and to the Facility
and, except as otherwise provided in Section 1.2, all of Seller's property and
assets, real and personal, tangible and intangible that are located at, and used
by Seller in the operation of, the Facility, including the following
(collectively, the "Acquisition Assets"):
(a) All of the assets and properties reflected on the "Acquisition
Balance Sheet" (as defined in Section 4.11) and those assets and properties
acquired since the date of the Acquisition Balance Sheet, except those assets
that have been disposed of in the Ordinary Course of Business between the date
of the Acquisition Balance Sheet and the Closing Date;
(b) The real property described on Schedule 4.21, together with all
improvements, buildings and fixtures located thereon and all easements and
rights appurtenant thereto (the "Real Property");
(c) All machinery, equipment, fixtures, computer hardware and
software (subject to any restrictions by the licensor on the assignment thereof)
tools, supplies, spare parts, furniture, vehicles and all other tangible
personal property and assets located at the Facility and owned or leased by
Seller and used or held for use in connection with the Facility, including those
identified on Schedule 4.20 (the "Personal Property");
(d) The motor vehicles identified on Schedule 4.20;
(e) All inventories of cleaning supplies, food, all medical supplies,
inventory of drugs and other medical inventory and all other inventories and
supplies located in and about the Facility (the "Inventory");
(f) Resident records, if any, for all residents in the Facility on
the Closing Date;
(g) All of Seller's interest (including all rights, benefits, duties
and obligations) in those Contracts listed on Exhibit B ("Assumed Contracts"),
including all assumable prepaid expenses arising under the Assumed Contracts
(the "Prepaid Expenses");
(h) All Governmental Authorizations owned, held or utilized by Seller
in connection with the ownership of the Acquisition Assets and the operation of
the Facility, and all pending applications therefor, in each case to the extent
transferrable to Buyer, including those listed on Schedule 4.17 (the "Permits");
(i) All data and records of Seller related to the Acquisition Assets
including equipment logs, operating guides and manuals, and other similar
documents and records ("Data and Records");
(j) The nonexclusive right and license to use the name "Briarcliff
Village Retirement Center and Personal Care Center" solely in connection with
the operation of the Facility;
(k) The going concern value and goodwill associated with the
operation of the Facility; and
(l) All other properties and assets of every kind, character or
description, tangible or intangible, owned by Seller and located at, and used or
held for use in connection with, the Facility, whether or not similar to the
items or types specifically set forth above.
1.2 Excluded Assets. The only assets of Seller located at, or used in
connection with the operation of, the Facility not included in the Acquisition
Assets and not to be purchased and sold under this Agreement are the following
(collectively, the "Excluded Assets"):
(a) All cash, cash equivalents, securities and investments, loan
costs and accounts receivable, notes receivable, premiums receivable,
commissions receivable, and other rights to receive payments from residents of
the Facility or from others, including all trade accounts receivable
representing amounts payable to Seller for services rendered to residents of the
Facility prior to the Closing Date;
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(b) Any Contract to which Seller is a party that is not listed on
Exhibit B;
(c) The storage building used in connection with the operation of the
Facility and which is not located on the Real Property; and
(d) Any award to which Seller is entitled pursuant to a condemnation
Proceeding relating to real property adjacent to the Real Property.
1.3 Assumed Liabilities; No Assumption of Other Liabilities. Effective as
of the Closing, Buyer shall assume, perform and discharge only those obligations
of Seller arising solely under the Assumed Contracts on or after the Closing
Date and all resident deposit obligations of Seller arising under Assumed
Contracts with the residents; provided Buyer receives a credit at the Closing of
an amount equal to one-half of the amount of the resident deposits assumed by
Buyer. Except for the Liabilities identified in the immediately preceding
sentence, Buyer does not assume, and shall not in any manner become responsible
or liable for, and Seller shall retain, pay, discharge and perform in full, all
other Liabilities of Seller. Seller shall remain liable and responsible for all
Liabilities of Seller of any nature whatsoever not expressly assumed by Buyer
under the terms of this Agreement.
2. Purchase Price; Deposit; Payment.
2.1 Purchase Price; Deposit; Payment.
(a) The purchase price for the Acquisition Assets shall be $11,530,000
("Purchase Price").
(b) Within ten days of Buyer's receipt of an indemnification letter
from the title insurance company ("Title Company") for which ▇▇▇▇▇ County
Abstract Company ("Title Agent") is an agent, Buyer shall deliver $250,000 to
Title Agent or Title Company, to be held by Title Agent or Title Company in an
interest-bearing account as a good faith deposit ("Deposit").
2.2 Prorations. All ad valorem real property taxes and assessments on the
Real Property that are due and payable in the year of Closing shall be prorated
on the basis of a 365-day year, in the manner customarily followed in Tyler,
Texas as of the Closing Date. All rents actually received by Seller from
residents for the month in which the Closing occurs shall be prorated between
Buyer and Seller based on the number of days in the month. At the Closing, the
net amount of such prorations shall be paid by Buyer to Seller in addition to
the Purchase Price, or shall be paid by Seller to Buyer, as the case may be. If
the Closing occurs before the amounts of the taxes and assessments to be
prorated pursuant hereto are known by the parties, such taxes and assessments
shall be prorated at the Closing based upon the amounts assessed in the
immediately preceding calendar or fiscal year, and when the amount of taxes and
assessments for the year in which the Closing occurs are known by the parties,
the parties shall reapportion such taxes or assessments based upon the actual
amount thereof.
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2.3 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Acquisition Assets as specified in Exhibit C to this Agreement. After
the Closing, the parties agree to make consistent use of the allocation for all
Tax purposes and in any and all filings, declarations and reports with the IRS
related to this Agreement, including, the reports required to be filed under
Section 1060 of the IRC, if applicable. Buyer shall prepare and deliver IRS Form
8594 to Seller within 45 days after the Closing Date if such form is required to
be filed with the Internal Revenue Service. In any proceeding related to the
determination of any Tax, no party hereto shall contend or represent that such
allocation is not correct.
3. Deposit; Escrow; Closing; Termination.
3.1 Escrow. This Agreement constitutes (a) a contract of purchase and sale
between the parties and (b) escrow instructions to Title Agent for the escrow
created hereby ("Escrow"). Either party may deliver a fully signed copy of this
Agreement to Title Agent, and this Escrow shall be deemed open on the date
("Escrow Opening Date") when Title Agent has received a copy or copies of this
Agreement signed by both parties and the standard terms and conditions of
escrow, if any, that Title Agent may require signed by both parties.
3.2 The Closing. Title Agent will close (the "Closing") the Escrow and the
transactions described in this Agreement on the date (the "Closing Date") that
all of the following conditions are satisfied but in no event later than
February 2, 1998 (the "Termination Date"), unless Buyer and Seller agree
otherwise:
(a) All funds and documents described in Section 10 have been
delivered to Title Agent.
(b) Title Agent has received notification from Buyer that each of the
conditions set forth in Section 7 has been either satisfied or Buyer has waived
satisfaction of any unsatisfied condition.
(c) Title Agent has received notification from Seller that each of the
conditions set forth in Section has been either satisfied or Seller has waived
satisfaction of any unsatisfied condition.
(d) Title Agent can issue the "Title Policy" (as defined in Section
7.7), insuring fee simple title to the Real Property in the amount of the
Purchase Price, subject to only (1) the Encumbrances for real estate Taxes and
statutory liens for Taxes not yet due and payable, and (2) the "Permitted
Encumbrances" (as defined in Section 7.7), and with such endorsements that Buyer
has requested.
3.3 Actions Taken by Title Agent on Closing Date and Thereafter.
(a) On the Closing Date when all of the conditions set forth in
Section 3.2 have been satisfied, Title Agent shall file with the appropriate
officials the "Deed" (as defined in Section 10.1(e)) and such other documents as
may be necessary to procure the Title Policy, and
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shall disburse the funds and documents to the parties in the manner set forth in
Section 10. The effective time of the Closing shall be 12:01 a.m., Central Time,
on February 1, 1998 (the "Effective Time").
(b) If Title Agent cannot close Escrow prior to the Termination Date,
it shall, nevertheless, close Escrow when all conditions have been satisfied or
waived unless Title Agent receives after the Termination Date, but prior to the
close of Escrow, a notice to terminate Escrow from a party who, at the time the
notice is delivered, is not in Breach of any provision of this Agreement.
3.4 Termination of Escrow. Within two working days after delivery of a
notice of termination from one party to this Agreement in accordance with
Section 9.1, Title Agent shall deliver a copy of the notice to the other party.
Unless the other party delivers to Title Agent a notice of objection to
termination of Escrow within three days after Title Agent delivered the notice
of termination to that party, Title Agent shall promptly terminate Escrow and
shall return all funds (excluding the Deposit) and documents held by it to the
party depositing the same and disburse the Deposit in the manner set forth in
Section 9.2. If Title Agent receives notice of objection to the termination of
Escrow within the three-day period, Title Agent shall hold all funds (including
the Deposit) and documents delivered to it in connection with Escrow and Title
Agent may, in its sole discretion, take no further action until otherwise
directed by other instructions signed by both parties or a final order or
judgment of a court of competent jurisdiction. Title Agent will have no
liability or responsibility for determining that a party giving a notice of
termination is not in default under this Agreement.
4. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer as follows:
4.1 Authority; No Conflict.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against him in accordance with its terms.
Seller has the full right, power, authority and capacity to execute and deliver
this Agreement and to perform his obligations under this Agreement and to
consummate all of the transactions described in this Agreement.
(b) Seller has, and at all times has had, full power and authority to
own and lease his properties as such properties are now owned and leased and to
conduct his business as it is now being conducted. Seller's Federal Employer
Identification Number is ▇▇-▇▇▇▇▇▇▇. Seller certifies that (a) the number shown
above is his correct taxpayer identification number, (b) he is not subject to
backup withholding because (1) he has not been notified that he is subject to
backup withholding as a result of a failure to report all interest or dividends
or (2) the Internal Revenue Service has notified him that he is no longer
subject to backup withholding, and (c) he is not a foreign Person within the
meaning of Sections 1445 and 1446 of the IRC, and the regulations promulgated
thereunder.
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(c) Except as set forth in Schedule 4.1, neither the execution and
delivery of this Agreement nor the consummation or performance of any of the
transactions described in this Agreement will, directly or indirectly (with or
without notice or lapse of time):
(1) Contravene, conflict with, or result in a violation of, any
Legal Requirement or give any Governmental Body or other Person the right
to challenge any of the transactions described in this Agreement or to
exercise any remedy or obtain any relief under, any Legal Requirement
applicable to Seller, or any of the Acquisition Assets, except where any
such contravention, conflict, violation, or right would not result in a
Material Adverse Effect to Seller, the Facility, or any of the Acquisition
Assets;
(2) Contravene, conflict with, or result in a violation of any of
the terms or requirements of, or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify, any Governmental
Authorization that is held by Seller or that otherwise relates to Seller's
business, or any of the Acquisition Assets, except where any such
contravention, conflict, violation, revocation, withdrawal, suspension,
cancellation, termination or modification would not result in a Material
Adverse Effect to Seller, the Facility, or any of the Acquisition Assets
and except for the requirement that Buyer must apply for a license from the
Texas Department of Human Services (the "Texas DHS") to operate the
Facility;
(3) Cause Seller, or to the Knowledge of Seller cause Buyer, to
become subject to, or to become liable for the payment of, any Tax to any
Governmental Body, other than real estate and ad valorem property Taxes
normally assessed in Texas against owners of such property;
(4) Contravene, conflict with, or result in a violation or breach
of any provision of, or give any Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or performance of,
or to cancel, terminate, or modify, any Assumed Contract, other than those
Persons who are parties to Assumed Contracts that require Consent from such
Persons prior to the assignment of the Assumed Contract; or
(5) Result in the imposition or creation of any Encumbrance on or
related to any of the Acquisition Assets owned or used by Seller.
(d) Seller is not nor will he be required to give any notice to or
obtain any Consent from any Person in connection with the execution and delivery
of this Agreement or the consummation or performance of any of the transactions
described in this Agreement, except as set forth in Schedule 4.1 and except
where the failure to give such notice or Consent would not have a Material
Adverse Effect on Seller, the Facility, or any of the Acquisition Assets.
(e) Seller has complied, and is in compliance, with all Legal
Requirements applicable to him and his operations and the ownership or use of
the Acquisition Assets, except where the failure to comply would not have a
Material Adverse Effect on Seller, the Facility, or any of the Acquisition
Assets. Seller does not have Knowledge of any facts or circumstances which may
constitute or result in any noncompliance.
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4.2 Absence of Certain Events. Except as set forth on Schedule 4.2, since
the date of the Acquisition Balance Sheet, Seller has operated the Facility only
in the Ordinary Course of Business and has not:
(a) Experienced any event, occurrence or condition which, individually
or in the aggregate has or is reasonably likely to have a Material Adverse
Effect on the Facility or any of the Acquisition Assets;
(b) Entered into or committed to any transaction that, individually or
in the aggregate, has or is reasonably likely to have, a Material Adverse Effect
on the Facility or any of the Acquisition Assets;
(c) Changed any of his accounting methods, principles or practices;
(d) Incurred or agreed to incur any indebtedness for borrowed money or
allowed any of the Acquisition Assets to be subjected to any Encumbrance
whatsoever, other than non-monetary restrictions which will not materially
interfere with Seller's use and enjoyment of the Acquisition Assets;
(e) Terminated or amended or suffered the termination or amendment of
any Assumed Contracts or Permit, where the loss of such Assumed Contract or
Permit would result in a Material Adverse Effect on Seller or the Facility;
(f) Adopted, modified or amended any Employee Benefit Plan;
(g) Entered into any Contract to do any of the above;
And, except as set forth on Schedule 4.2, Seller has:
(h) Continued his operations at the Facility in the Ordinary Course of
Business and maintained his operations, the Facility, Acquisition Assets, books
of account, records and files in substantially the same manner as heretofore;
and
(i) Used his Best Efforts to preserve his business at the Facility.
4.3 Assets Necessary To Business. Except for assets used by Seller
principally for accounting functions, the Acquisition Assets (provided Buyer
replaces the Excluded Assets) are sufficient for Buyer to operate the Facility
on and after the Closing Date in the same manner that Seller operated the
Facility prior to the date of this Agreement.
4.4 Books and Records. The books of account of Seller are complete and
correct in all material respects, and all monies due or to become due from or to
or owing by, and all Liabilities of Seller, by reason of any transaction, matter
or cause whatsoever have been duly, correctly and completely entered therein in
all material respects.
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4.5 Brokers. All negotiations relative to this Agreement and the
transactions described in this Agreement have been conducted by Seller directly
with Buyer, without the assistance or intervention of any other Person except
for DevCon Real Estate Brokers ("DevCon"). To Seller's Knowledge, DevCon is the
only Person who may have a valid claim against Buyer for a finder's fee,
investment banking fees, brokerage commission or other like payment.
4.6 Completeness of Statements. Seller has disclosed to Buyer in writing
all material facts known to him relating to the representations and warranties
of Seller made in this Agreement. No representation, warranty or covenant of
Seller in this Agreement contains any untrue statement of a material fact, any
misstatement of a material fact or omits to state a material fact necessary to
make the statements herein or therein not misleading when taken as a whole.
4.7 Contracts. Seller has delivered to Buyer a complete copy of each
Assumed Contract listed in Exhibit B. Seller has performed in all respects all
obligations to be performed by him under the terms of Assumed Contracts through
the date of this Agreement, and he is not in default under any Assumed Contract.
Moreover, to the Knowledge of Seller, no event has occurred which, with notice
or the passage of time, or both, would constitute a default under any Assumed
Contract. To the Knowledge of Seller, there is no basis for any of the other
parties to Assumed Contracts to assert that Seller is in default thereunder and
the other parties to Assumed Contracts are not in default thereunder. Except for
those Assumed Contracts described on Exhibit B whose terms require the prior
Consent of the other party thereto for an assignment to Buyer, the consummation
of the transactions described in this Agreement will not cause a default under
any Assumed Contract. There are no existing disputes between Seller, on the one
hand, and any other party to any Assumed Contract, on the other hand.
4.8 Current Compensation of Employee.
(a) Set forth on Schedule 4.8 is a complete list (the "List") of
Seller's employees on the date of such List who work at the Facility along with
the amount of the current wage rate for hourly employees and monthly salaries
for salaried employees and the total compensation paid or due for services to
each management employee for 1997, and a complete description of any commitments
to such management employees regarding compensation payable thereafter. Except
as set forth on Schedule 4.8, since the date of the List on Schedule 4.8, there
has been no change in the management employees who work at the Facility. Except
as set forth on Schedule 4.8, (1) there has been no change in the salaries or
compensation paid to employees of Seller since the date of the Acquisition
Balance Sheet other than in the Ordinary Course of Business of Seller with
updated information being furnished prior to Closing, and (2) Seller has not,
because of past practices with or previous commitments to his employees,
established any rights or expectations on the part of such employees to receive
additional compensation inconsistent with past practices for any period after
the date hereof.
(b) Except as set forth on Schedule 4.8, no employee of Seller is a
party to or subject to any Contract containing covenants by such employees not
to compete in any line of business with any Person or restricting the customers
from whom or the area in which the employee may solicit or conduct business.
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4.9 Employee Benefits. Except for each group health plan (as defined in
Section 4980B(g)(2) of the IRC) ("Group Health Plan") maintained by Seller,
Seller does not maintain or contribute to any Employee Benefit Plan. To the
Knowledge of Seller, each Group Health Plan maintained by Seller has been
administered in compliance with the continuation coverage and notice
requirements of Title I, Subtitle B, Part 6 of ERISA and Section 4980B of the
IRC (and the regulations thereunder). For purposes of this Section 4.9, any
reference to Seller shall be deemed to refer also to any Person that is under
common control or affiliated with Seller within the meaning of Section
4001(a)(14) of ERISA and Section 414(b), (c), (m) and (o) of the IRC.
4.10 Environmental Matters.
(a) Except as disclosed on Schedule 4.10, (1) Seller is, and at all
times has been, in full compliance with, and has not been and is not in
violation of or liable under, any Environmental Law, (2) Seller has no basis to
expect, nor to the Knowledge of Seller, has Seller, or any other Person for
whose conduct Seller is or may be held responsible, received any Order, notice,
or other communication from (A) any Governmental Body or Person acting in the
public interest, or (B) the current or prior owner or operator of the Facility,
of any actual or Threatened violation or failure to comply with any
Environmental Law, or of any actual or Threatened obligation to undertake or
bear the cost of any Environmental, Health, and Safety Liabilities relating to
the Facility. Seller has not generated, manufactured, refined, transferred,
imported, used, or processed Hazardous Materials from the Facility, nor, to
Seller's Knowledge, has any other Person for whose conduct Seller is or may be
held responsible, transported, treated, stored, handled, transferred, disposed,
recycled or received Hazardous Materials.
(b) Except as set forth on Schedule 4.10, there are no pending or, to
the Knowledge of Seller, Threatened claims, Encumbrances, or other restrictions
of any nature, resulting from any Environmental, Health, and Safety Liabilities
or arising under or pursuant to any Environmental Law, affecting the Facility or
any of the Acquisition Assets.
(c) Except as set forth on Schedule 4.10, Seller does not have any
basis to expect, nor has Seller, or to the Knowledge of Seller, any other Person
for whose conduct Seller is or may be held responsible received, any notice,
Order, or other communication that relates to Hazardous Activity, Hazardous
Materials, or any alleged, actual, or potential violation or failure to comply
with any Environmental Law, or of any alleged, actual, or potential obligation
to undertake or bear the cost of any Environmental, Health, and Safety
Liabilities regarding the Facility or any of the Acquisition Assets or to which
Hazardous Materials generated, manufactured, refined, transferred, imported,
used or processed by Seller, or any other Person for whose conduct he is or may
be held responsible, have been transported, treated, stored, handled,
transferred, disposed, recycled, or received.
(d) Except as set forth on Schedule 4.10, neither Seller, nor to the
Knowledge of Seller, any other Person for whose conduct Seller is or may be held
responsible, have any Environmental, Health, and Safety Liabilities related to
the Facility or the Acquisition Assets, or at any property geologically or
hydrologically adjoining the Facility.
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(e) Except as set forth on Schedule 4.10, there are no Hazardous
Materials present on or in the Environment at the Real Property or, to the
Knowledge of Seller, at any geologically or hydrologically adjoining the Real
Property, other part of the Real Property or such adjoining property, or
incorporated into any improvement located thereon or in any Personal Property.
Neither Seller, nor any other Person for whose conduct Seller is or may be held
responsible, has permitted or conducted, or are aware of, any Hazardous Activity
conducted with respect to the Facility or any of the Acquisition Assets.
(f) Except as set forth on Schedule 4.10, there has been no Release,
or to the Knowledge of Seller, a Threat of Release, of any Hazardous Materials
at or from the Facility or the Real Property.
4.11 Financial Statements. Set forth in Schedule 4.11 are the financial
statements of Seller related to the operation of the Facility for the years
ending December 31, 1996, 1995 and 1994, all of which have been audited by ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, independent auditor of Seller. Such financial statements are
hereinafter referred to collectively as the "Year-end Financials." Also set
forth in Schedule 4.11 are the interim unaudited financial statements of Seller
relating to the operations of the Facility for the ten-month period ended
September 30, 1997 (the "Stub Period Financials"). The Year-end Financials and
the Stub Period Financials are hereinafter collectively referred to as the
"Financial Statements" and the balance sheet, dated September 30, 1997, that is
included in the Stub Period Financials is referred to as the "Acquisition
Balance Sheet." The Financial Statements have been prepared from the books and
records of Seller in conformity with GAAP, on a consistent basis and present
fairly, in all material respects, the financial position of Seller at the
respective dates of the balance sheets included therein and the results of
operations and changes in financial position of Seller for the respective
periods covered thereby, except for, in the case of Stub Period Financials, the
absence of footnotes (that if presented would not differ materially from those
included in the Year-End Financial Statements) and normal recurring year-end
adjustments that will not result in a Material Adverse Effect on Seller's
financial condition and results of operations.
4.12 Insurance. Included as Schedule 4.12 is a complete listing of all
insurance policies related to the Acquisition Assets insuring Seller, and bonds
issued concerning the Acquisition Assets, detailing the coverage insured against
and the amount thereof, the insurance carrier, the policy number and the premium
payments. Except as disclosed on Schedule 4.12, Seller does not and has not
maintained any self-insurance programs. Schedule 4.12 further includes a
statement of all claims for insured losses filed by Seller within the three-year
period prior to the date hereof. Except as listed on Schedule 4.12, Seller has
not received any notice from any insurance carrier that (a) Seller's coverage
will be canceled in whole or in part or (b) that the premiums or premium rates
(where the premium is computed on a fluctuating base) will be increased.
4.13 Labor Matters. Except as disclosed on Schedule 4.13, Seller has not
been, nor is he currently a party to, nor is he negotiating, any collective
bargaining agreement. There has not been, there is not presently pending or
existing, and to the Knowledge of Seller, any Threatened, (a) strike, slowdown,
picketing, work stoppage, or employee grievance process, (b) Proceeding against
or affecting Seller's operation of the Facility relating to (1) to the Knowledge
of Seller, an alleged violation of any Legal Requirement pertaining to labor
relations or employment
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matters, including any charge or complaint filed by an employee or union with
the National Labor Relations Board, the Equal Employment Opportunity Commission
or any comparable Governmental Body, (2) organizational activities, or other
labor or employment dispute against or affecting Seller or the Facility, or (c)
application for certification of a collective bargaining agent. To the Knowledge
of Seller, no event has occurred or circumstance exists that could provide the
basis for any work stoppage or other labor dispute.
4.14 Liabilities Not Disclosed On Balance Sheet. As of the date of the
Acquisition Balance Sheet, Seller, regarding his ownership and operation of the
Acquisition Assets, had no material Liabilities except as shown on the
Acquisition Balance Sheet. Except as shown on Schedule 4.14, since the date of
the Acquisition Balance Sheet, Seller has not incurred or become subject to any
Liabilities related to the Facility, other than Liabilities incurred in the
Ordinary Course of Business of the Facility consistent with past practices, all
of which have been paid in full in the Ordinary Course of Business or are
reflected on Seller's regular books of account on the date hereof and will be
reflected on such books on the Closing Date and none of which (a) is materially
inconsistent with the representations, warranties and covenants of Seller
contained in this Agreement, or (b) has or may be expected to have a Material
Adverse Effect.
4.15 Litigation. Except as set forth on Schedule 4.15, to Seller's
Knowledge there are no Proceedings or claims, pending or Threatened against or
affecting Seller, the Acquisition Assets, the Facility, or any employee of
Seller, by or before any Governmental Body. Seller is not subject to, nor in
default under, any Order applicable to him, the Facility, the Acquisition
Assets, or any of his employees, and Seller is not in violation of any Legal
Requirements applicable to him.
4.16 Medicare, Medicaid and Other Third Party Payors. Seller has not
entered into any Contracts between him and Medicare, Medicaid, private insurers,
health maintenance organizations, preferred provider organizations or programs,
self-insured employers and any other Entity that maintains or administers third-
party payor programs related to the operations of the Facility.
4.17 Permits. To Seller's Knowledge, Schedule 4.17 sets forth all of the
Permits Seller has obtained from, and the Permits constitute all Governmental
Authorizations required by, all Governmental Bodies that have any oversight or
regulatory responsibility over Seller's operations of the Facility as a Class A
Personal Care Facility under Texas law having approximately 62 units and as an
independent living residence designed for elderly residents having approximately
100 units, except where the failure to obtain would not have a Material Adverse
Effect on the Facility. Seller has furnished Buyer a complete copy of each of
the Permits. All of the Permits are in full force and effect, and to Seller's
Knowledge, no suspension or cancellation of any of them is Threatened.
4.18 Proprietary Property. Except for the software and other proprietary
assets used by Seller to perform accounting functions, Schedule 4.18 sets forth
all Proprietary Property used by Seller in connection with his operations of the
Facility. To Seller's Knowledge, Seller owns, or has obtained proper licenses
for the use of, all Proprietary Property used by him. Seller has not received
notice of any claim that he is violating or infringing any Proprietary Property
of any third party.
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4.19 Taxes.
(a) Seller has timely paid in full all ad valorem property Taxes
levied on the Acquisition Assets that have become due and payable prior to the
date of this Agreement. Seller has withheld proper and accurate amounts from his
employees in full and complete compliance with the Tax withholding provisions of
the IRC and other applicable Legal Requirements, and has filed proper and
accurate Tax Returns for all years and periods (and portions thereof) for which
any such Tax Returns were due for employee income Tax, withholding Taxes, social
security Taxes and unemployment Taxes. Seller has paid or remitted all Taxes and
other amounts from his employees' wages for periods ended on or prior to the
date hereof, and, for periods ended after the date hereof, for which payment is
not yet due, Seller has made adequate accruals on his regular books of account.
(b) Seller has prepared, signed and filed all federal Tax Returns
required to be filed by all applicable Legal Requirements on or before the date
hereof, and has timely paid or accrued all Taxes or installments thereof,
interest, penalties, assessments and deficiencies of every kind and nature
whatsoever which were due and owing on such Tax Returns or which were or are
otherwise due and owing under all applicable Legal Requirements for any periods
for which Tax Returns were due, whether reflected on such Tax Returns and
whether relating to the income of Seller. The amounts recorded as payable for
Taxes in the Acquisition Balance Sheet is sufficient for the payment of all
Taxes attributable to all periods ended on or before the date of the Acquisition
Balance Sheet and adequate accruals have been made by Seller for all Liabilities
for Taxes accruing since the date of the Acquisition Balance Sheet. There are in
effect no Contracts or Consents providing for an extension of time for any
assessment of any Tax, or any deficiency against Seller, other than routine
extensions in filing deadlines. Except as set forth on Schedule 4.19, there are
no Proceedings now pending nor Threatened, against Seller, nor are there any
matters under discussion with the IRS, or other Governmental Authority, relating
to any Taxes, or any claims or deficiencies with respect thereto. Seller's
federal income Tax Returns have not been audited since prior to 1980.
(c) Neither Buyer nor Seller is liable for any sales, use, transfer or
other similar Tax as a result of the transactions described in this Agreement
and no such Tax will be imposed by any Governmental Body on the sale of the
Acquisition Assets to Buyer, and Buyer is not required to withhold any portion
of the Purchase Price on account of any such Tax.
4.20 Title to Properties; Condition and Repair. Schedule 4.20 sets forth an
approximate listing of the Personal Property owned or used by Seller in the
operation of the Facility. Except as disclosed on Schedule 4.20, Seller owns the
Personal Property included within the Acquisition Assets that he purports to own
or reflected as owned in the books and records of Seller (except for assets held
under capitalized leases disclosed in Schedule 4.7 of this Agreement) free and
clear of all Encumbrances of any nature whatsoever, except for the lien for
current ad valorem property Taxes not yet due and payable. Except for the
regular, scheduled repairs which are done in the Ordinary Course of Business,
all of the Acquisition Assets are free of material defect, well maintained, in
good working order, condition and repair.
-12-
4.21 Real Property.
(a) Schedule 4.21 sets forth a complete legal description of the Real
Property. None of the Real Property is subject to any Encumbrance, variance or
other limitation except for (a) mortgages or security interests shown on the
Acquisition Balance Sheet as securing specified liabilities, (b) liens for
current Taxes not yet due, (c) minor imperfections of title, if any, none of
which is substantial in amount, materially detracts from the value or impairs
the use of the property subject thereto, or impairs the operations of the
Facility, and (d) zoning laws and other land use restrictions that do not impair
the present or anticipated use of the property subject thereto. All buildings,
plants, and structures owned by Seller lie wholly within the boundaries of the
Real Property owned by Seller and, with the exception of any fences located
around the boundaries of the Real Property, do not encroach upon the property
of, or otherwise conflict with the property rights of, any other Person.
(b) Except for the condemnation Proceeding as described on Schedule
4.21, there are no pending, or Threatened, condemnation Proceedings relating to
the Real Property or other matters affecting its current use, occupancy or
value.
(c) To the Knowledge of Seller, the operation of the Facility on the
Real Property by Buyer following the Closing Date does not require any zoning or
planning department approvals in addition to those which Seller has already
obtained. Buyer is automatically entitled to the benefits of all such approvals
without the necessity of any affirmative action on Buyer's behalf. Seller does
not have any information which would lead him to believe that the use of the
Real Property will be adversely affected by any pending or proposed zoning or
use changes.
(d) Seller has not received any notice from any Governmental Body, nor
does he otherwise have Knowledge of any contemplated, actual or Threatened
reassessment of the value of the Real Property for ad valorem real property Tax
purposes, other than normal periodic reassessment and any such reassessment that
may occur by virtue of the sale of the Real Property to Buyer and the
recordation of the Deed in the appropriate public office.
4.22 Utilities. The Facility is supplied with utilities and other services
necessary for its operation, including gas, electricity, water, telephone,
sanitary sewer, and storm sewer, all of which services are sufficient for Buyer
to operate the Facility in the same manner that in which Seller operated the
Facility prior to the date of this Agreement and are provided via public roads
or via permanent, irrevocable, appurtenant easements benefitting the Real
Property.
5. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
5.1 Corporate Status. Buyer is a corporation duly incorporated and existing
under the laws of the State of Delaware. Buyer has, and at all times has had,
full corporate power and authority to own and lease its properties as such
properties are now owned and leased and to conduct its business as and where
such businesses have and are now being conducted.
5.2 Authority; Consents; Enforcement: Noncontravention; Noncompetes.
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(a) Authority. Buyer has the corporate power and authority to execute,
deliver and perform this Agreement, and all other agreements, certificates or
documents described in this Agreement ("Buyer Ancillary Documents"), and has
taken all actions required to authorize, execute, deliver and perform this
Agreement and the Buyer Ancillary Documents, including approval by the Board of
Directors of Buyer.
(b) Consents. No Consent or registration, declaration or filing with
any Governmental Body is required for Buyer to execute this Agreement and,
except for obtaining approval by the Texas DHS, perform the transactions
described in this Agreement by Buyer.
(c) Enforcement. This Agreement has been duly executed and delivered
by Buyer and constitutes the legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms.
(d) Noncontravention. The execution and delivery of this Agreement and
the Buyer Ancillary Documents by Buyer do not violate any provision of the
Organizational Documents of Buyer and will not result in a breach or violation
or default under any Order of any Governmental Body to which Buyer is subject or
result in a breach by Buyer under any Contract to which it is bound. Neither the
execution and the delivery of this Agreement, nor the compliance with, and
fulfillment of, the terms, conditions and provisions hereof or thereof, will (a)
violate any Legal Requirement applicable to Buyer; or (b) require the Consent or
the making by Buyer of any declaration, filing or registration with, any
Governmental Body or other Person.
5.3 No Agent or Broker. Except for DevCon, no agent or broker or other
person acting pursuant to authority given by Buyer is entitled to any commission
or finder's fee, or other compensation, in connection with the transactions
described in this Agreement.
6. Additional Covenants of the Parties.
6.1 Access and Investigation . Between the date of this Agreement and the
Closing Date, Seller shall: (a) afford Buyer and its Representatives full and
free access to Seller's personnel, properties (including access for subsurface
testing), contracts, books and records, and other documents and data, (b)
furnish Buyer and Buyer's Representatives with copies of all such Contracts,
books and records, and other existing documents and data as Buyer may reasonably
request, and (c) furnish Buyer and Buyer's Representatives with such additional
information as Buyer may reasonably request.
6.2 Operation of the Facility. Between the date of this Agreement and the
Closing Date, Seller shall:
(a) conduct the Facility only in the Ordinary Course of Business;
(b) use his Best Efforts to preserve intact the Facility, keep
available the services of the current employees and agents of the Facility, and
maintain the relations and good will with suppliers, residents, landlords,
creditors, employees, agents, and others having business relationships with the
Facility and Seller;
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(c) confer with Buyer concerning operational matters of a material
nature; and
(d) otherwise report periodically to Buyer concerning the condition
and operation of the Acquisition Assets, and the operation and financial
position and results of the Facility.
6.3 Required Consent. As promptly as practicable after the date of this
Agreement, Seller shall make any filings required to be made by him under Legal
Requirements in order to consummate the transactions described in this
Agreement. Between the date of this Agreement and the Closing Date, Seller
shall, (a) cooperate with Buyer on all filings that Buyer elects to make or is
required by Legal Requirements to make in connection with the transactions
described in this Agreement, and (b) cooperate with Buyer in obtaining all
Consents required by Buyer to consummate the transaction described in this
Agreement.
6.4 Notification. Between the date of this Agreement and the Closing Date,
Seller shall promptly notify Buyer if Seller becomes aware of any fact or
condition that causes or constitutes a Breach of any of the representations and
warranties of Seller in this Agreement, or if Seller becomes aware of the
occurrence after the date of this Agreement of any fact or condition that would
(except as expressly described in this Agreement) cause or constitute a Breach
of any such representation or warranty had such representation or warranty been
made as of the time of occurrence or discovery of such fact or condition. During
the same period, Seller shall promptly notify Buyer of the occurrence of any
Breach of any covenant of Seller in this Agreement or of the occurrence of any
event that may make the satisfaction of the conditions in Section 7 impossible
or unlikely.
6.5 No Negotiation.
(a) Until such time, if any, as this Agreement is terminated pursuant
to Section 9, Seller shall not:
(1) negotiate, discuss or otherwise communicate with any other
potential purchaser or lessee of the Facility;
(2) solicit or encourage submission of any proposal or offer to
acquire or lease all or any portion of the Facility;
(3) participate in any discussion or negotiation regarding any
proposal or offer to sell or lease all or any portion of the Facility;
(4) furnish to any Person other than Buyer and its
Representatives any information regarding the Facility, except as required
by any Legal Requirement or in any Proceeding; or
(5) cooperate in any way with, or assist or participate in any
proposal or offer from any Person other than Buyer or its Representatives
to acquire or lease all or any portion of the Facility.
-15-
(b) If, prior to the termination of this Agreement, Seller receives
any unsolicited offer or proposal from any Person other than Buyer to acquire or
lease all or any portion of the Facility, Seller shall promptly notify Buyer of
such offer or proposal and provide Buyer with copies of any written materials
received by Seller that relate to such offer or proposal.
6.6 Approvals of Governmental Bodies. As promptly as practicable after the
date of this Agreement, Buyer shall make all filings required by Legal
Requirements to be made by it to consummate the transactions described in this
Agreement. Between the date of this Agreement and the Closing Date, Buyer shall
cooperate with Seller on all filings that Seller is required by Legal
Requirements to make in connection with the transactions contemplated herein,
and (ii) cooperate with Seller in obtaining all Consents required by Seller to
consummate the transactions described in this Agreement.
6.7 Transition of the Facility. Seller covenants with Buyer to cooperate
with Buyer to effect the smooth transition of the control and operation of the
Facility from Seller to Buyer. Seller shall cooperate with Buyer in providing
all information required hereunder and access thereto and whatever is required
to carry out the purposes and intent of the transactions contemplated by this
Agreement.
6.8 Seller's Employees and Employee Benefits.
(a) Prior to the Closing Date, Seller shall promptly notify all
employees employed at the Facility that Seller will terminate their employment
as of the Closing Date. Seller shall retain any and all Liability for, and shall
pay pursuant to Seller's policies, any termination pay, severance pay, sick pay
or vacation pay, any unemployment benefits, and any other benefits to which
Seller's past or current employees, their spouses and dependent children may be
entitled by virtue of their employment or termination of their employment with
Seller.
(b) Following the Closing Date, Seller shall maintain Group Health
Plans comparable to its current Group Health Plan for at least as long as
Seller's past or current employees, their spouses and dependent children are
eligible for continuation health coverage under COBRA. If Seller terminates one
or more Group Health Plans which cover past or current employees who are not
hired by Buyer, their spouses and dependent children, Seller's remaining Group
Health Plan or Plans shall be considered the successor plan or plans under COBRA
for such individuals. Buyer will waive the enrollment period and pre-existing
condition requirements of its current Group Health Plan for those employees of
Seller that Buyer hires upon consummation of the transactions described in this
Agreement so that the termination of the employment of such employees by Seller
and the hiring of such employees by Buyer will not trigger any COBRA benefits
for these employees.
(c) Buyer shall have no obligation to employ any employees of Seller
subsequent to the Closing. To the extent any of such employees are employed by
Buyer following the Closing, such employment shall be on terms and conditions
determined by Buyer and Buyer shall have no obligation to offer such employee
the same or similar wages, salaries or benefits as are paid or provided by
Seller prior to the Closing, except that Buyer shall recognize the employees'
prior services with Seller for vacation purposes.
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6.9 Survey. Promptly following the execution and delivery of this
Agreement, Seller will obtain an ALTA survey of the Real Property ("Survey")
satisfying all of the requirements set forth as Exhibit D.
6.10 Title Insurance.
(a) Promptly following the execution and delivery of this Agreement,
Seller shall deliver to Buyer a commitment (the "Title Commitment") to issue the
Title Policy from Title Company and all underlying documents related to the
exceptions described or listed in the Title Commitment (the "Title Commitment
Documents"). Within 10 days of the later of (1) the date Buyer receives a copy
of the Survey or (2) the date Buyer receives a copy of the Title Commitment and
all the Title Commitment Documents, Buyer shall notify Seller of all matters on
the Title Commitment to which Buyer objects. If Buyer fails to object to any
such exception within the 10-day period, Buyer shall be deemed to have accepted
such exceptions.
(b) Seller shall take all steps necessary to satisfy all the
requirements set forth in the Title Commitment prior to the Closing Date. Buyer
hereby objects to, and Seller shall use his Best Efforts to remove, correct or
delete prior to or at the Closing (1) all standard exceptions set forth in the
Title Commitment that are capable of being satisfied or removed, (2) any gap,
overlap, boundary dispute, hiatus or encroachment referred to in the Title
Commitment or identified on the Survey which affects the Real Property or any
adjacent properties, (3) any mortgages and other monetary liens and Encumbrances
affecting the Real Property, and (d) any matter to which Buyer has objected
under this Section 6.10.
6.11 Filing of Taxes; Payment. Seller shall, for all periods through the
Closing Date:
(a) prepare and timely file (including extensions) all Tax Returns
that he is required to file under all applicable laws;
(b) timely pay all Taxes he is required to pay;
(c) withhold and timely pay over to the applicable authorities all
Taxes that he is required to withhold and pay over; and
(d) timely pay all Taxes on any sales and the income and gain, if any,
that he realizes on the transactions contemplated by this Agreement, including
the sale of the Acquisition Assets.
6.12 Sales and Other State Taxes. Seller shall notify the taxing
authorities which require notice prior to the completion of the transactions
described in this Agreement and on the date hereof filed the required notices
with the other taxing authorities.
6.13 Development Agreement. At the Closing, Buyer and Seller shall execute
and deliver a development agreement, substantially in the form of Exhibit E
attached to this Agreement (the "Development Agreement").
-17-
6.14 Non-Competition Agreement. At the Closing, Seller and Buyer shall
execute and deliver a non-competition agreement substantially in the form of
Exhibit H attached to this Agreement (the "Non-Competition Agreement").
6.15 Further Assurances. Each of the parties agrees that it or he will, at
any time, and from time to time, after the date hereof, upon the request and at
the expense of the appropriate party, do, execute, acknowledge and deliver, or
will cause to be done, executed, acknowledged and delivered, all such further
acts, assignments, transfers, conveyances, and such further acts, assignments,
transfers, conveyances, and assurances as may be required to complete the
transactions contemplated herein. After the date hereof, at the expense of
Buyer, Seller shall use his Best Efforts to cause any necessary third party to,
execute such documents and do such acts and things as Buyer may reasonably
require for the purpose of giving to Buyer the full benefit of all the
provisions of this Agreement and as may be reasonably required to complete the
transactions contemplated herein.
7. Conditions Precedent to Buyer's Obligation to Close. Buyer's obligation
to consummate the transactions contemplated herein, and to take the actions
required to be taken by Buyer, at the Closing, is subject to the satisfaction,
at or prior to the Closing, of each of the following conditions (any of which
may be waived by Buyer, in whole or in part):
7.1 Accuracy of Representations. Each representation and warranty of Seller
in this Agreement must be accurate in all material respects as of the date of
this Agreement, and must be accurate in all material respects as of the Closing
Date as if made on the Closing Date.
7.2 Seller's Performance. All of the covenants and obligations that Seller
is required to perform or to comply with pursuant to this Agreement at or prior
to the Closing must have been duly performed and complied with in all material
respects.
7.3 No Proceedings. Since the date of this Agreement, there must not have
been commenced or Threatened against Buyer, or against any Person Affiliated
with Buyer, any Proceeding (a) involving any challenge to, or seeking damages or
other relief in connection with, any of the transactions described in this
Agreement, or (b) that may have the effect of preventing, delaying, making
illegal, or otherwise interfering with any of the transactions described in this
Agreement.
7.4 Consents. Each of the Consents identified on Schedule 5.2 must have
been obtained and must be in full force and effect and Buyer has obtained all
Governmental Authorizations necessary or required for it to assume operation of
the Facility other than the authorization from the Texas DHS.
7.5 Texas DHS Authorization. Buyer has received written confirmation from
the Texas DHS that Buyer is qualified to operate the Facility and that the Texas
DHS is prepared to issue Buyer a license subject to the successful completion of
Texas DHS's survey of the Facility and Buyer's operation of the Facility.
-18-
7.6 Other Documents. Buyer must have received such other documents as it
may reasonably request for the purpose of (a) evidencing the accuracy of any of
the representations and warranties of Seller, (b) evidencing the performance by
Seller of, or the compliance by Seller with, any covenant or obligation required
to be performed or complied with by him, (c) evidencing the satisfaction of any
condition referred to in this Section 7, or (d) otherwise facilitating the
consummation or performance of any of the transactions contemplated herein.
7.7 Title Policy. Title Company shall irrevocably commit to issue an ALTA
Owner's Policy of Title Insurance on Form B-1992, insuring fee simple title to
the Real Property in the amount of the Purchase Price (the "Title Policy"),
subject to only (a) the Encumbrances for real estate Taxes and statutory liens
for Taxes not yet due and payable, and (b) those other Encumbrances to which
Buyer has not objected in accordance with Section 6.10 (the "Permitted
Encumbrances"), and with such endorsements that Buyer has requested.
7.8 No Prohibition. Neither the consummation nor the performance of any of
the transactions contemplated herein will, directly or indirectly (with or
without notice or lapse of time), materially contravene, or conflict with, or
result in a material violation of, or cause Buyer or any Person Affiliated with
Buyer to suffer any material adverse consequence under, (a) any applicable Legal
Requirement or Order, or (b) any Legal Requirement or Order that has been
published, introduced, or otherwise proposed by or before any Governmental Body.
8. Conditions Precedent to Seller's Obligation to Close. Seller's
obligation to consummate the transactions contemplated herein and to take the
other actions required to be taken by Seller at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Seller, in whole or in part):
8.1 Accuracy of Representations. Each of Buyer's representations and
warranties in this Agreement must have been accurate in all material respects as
of the date of this Agreement and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
8.2 Buyer's Performance. All of the covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects.
8.3 No Injunction. There must not be in effect any Legal Requirement or any
injunction or other Order that prohibits the sale of the Acquisition Assets by
Seller to Buyer.
8.4 Consents. Each of the Consents identified on Schedule 4.1 must have
been obtained and must be in full force and effect.
8.5 Definitive Agreements for Purchase and Sale of Other Facilities.
(a) Buyer, Briarcliff Village Health Center, a Texas general
partnership ("Health Center"), and Briarcliff Village Health Center, Inc., a
Texas corporation ("Village Health") shall have entered into a definitive
agreement for the purchase by Buyer of the facility having approximately 12
units licensed as a Class B Personal Care Facility under Texas law and
-19-
approximately 230 units licensed as a Nursing Facility under Texas law, known as
the Briarcliff Village Health Center and located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and all conditions precedent to Buyer's, Health Center's and
Village Health's obligations to close the transaction described in that
agreement, have been satisfied or waived and the parties have closed such
transaction contemporaneously with the Closing of the transactions described in
this Agreement.
(b) Buyer, Nursing Care Four, a Texas general partnership ("Nursing
Care"), and ▇▇▇▇▇▇▇▇ Nursing Center Inc., a Texas corporation ("Nursing Center")
shall have entered into a definitive agreement for the purchase by Buyer of the
skilled nursing facility known as the ▇▇▇▇▇▇▇▇ Nursing Center located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and all conditions precedent to Buyer's,
Nursing Care's and Nursing Center's obligations to close the transaction
described in that agreement, have been satisfied or waived and the parties have
closed such transaction contemporaneously with the Closing of the transactions
described in this Agreement.
(c) Buyer, Briarcliff Health Center of Texas, a Texas general
partnership ("Health Center of Texas") and Briarcliff Health Center, Inc. d/b/a
Village on ▇▇▇▇▇▇▇▇, a Texas corporation ("Village"), shall have entered into a
definitive agreement for the purchase by, and Buyer and Health Center of Texas
shall have entered into a definitive agreement for the lease by, Buyer of the
Facility licensed as a Class B Personal Care Facility under Texas law and known
as the Village on ▇▇▇▇▇▇▇▇ located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇▇▇").
8.6 Other Documents. Seller must have received such other documents as
Seller may reasonably request for the purpose of (a) evidencing the accuracy of
any representation or warranty of Buyer, (b) evidencing the performance by Buyer
of, or the compliance by Buyer with, any covenant or obligation required to be
performed or complied with by Buyer, (c) evidencing the satisfaction of any
condition referred to in this Section 8, or (d) otherwise facilitating the
consummation of any of the transactions contemplated herein.
9. Termination.
9.1 Termination Events. By notice given to Title Agent and the other
parties to this Agreement, this Agreement may be terminated:
(a) by Buyer if any of the conditions in Section 7 have not been
materially satisfied as of the Termination Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of Buyer to
comply with its obligations under this Agreement) and Buyer has not waived such
condition on or before the Termination Date;
(b) by Seller, if any of the conditions in Section 8 have not been
materially satisfied as of the Termination Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of Seller to
comply with his obligations under this Agreement) and Seller has not waived such
condition on or before the Termination Date;
(c) by either Buyer or Seller if a Breach of any provision of this
Agreement has been committed by the other party and such Breach has not been
waived;
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(d) by mutual consent of Buyer and Seller; or
(e) by either Buyer or Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before the
Termination Date, or such later date as the parties may agree upon.
9.2 Effect of Termination.
(a) If Buyer terminates this Agreement pursuant to Section 9.1(a) or
Section 9.1(c) or if the parties terminate this Agreement pursuant to Section
9.1(d) or Section 9.1(e), Title Agent shall return to Buyer the Deposit and all
interest earned thereon.
(b) If Seller terminates this Agreement pursuant to Section 9.1(b) or
Section 9.1(c), Title Agent shall deliver the Deposit and all interest earned
thereon to Seller only if all of the conditions in Section 7 have been satisfied
and Seller is not in Breach of this Agreement. Otherwise, Title Agent shall
remit the Deposit and all interest earned thereon to Buyer.
(c) The remedies set forth in Section 9.2(b) are the exclusive
remedies of Seller for his termination of this Agreement. Buyer's right of
termination under Section 9.1 is in addition to any other rights it may have
under this Agreement or otherwise, and the exercise of a right of termination
will not be an election of remedies.
(d) If this Agreement is terminated pursuant to Section 9.1, all
further obligations of the parties under this Agreement will terminate, except
that the obligations in Section 12.5 will survive; provided, however, that if
this Agreement is terminated by Buyer because of the Breach of the Agreement by
Seller or because one or more of the conditions to Buyer's obligations under
this Agreement is not satisfied as a result of Seller's failure to comply with
his obligations under this Agreement, Buyer's right to pursue all legal remedies
will survive such termination unimpaired.
10. Deliveries and Actions To Be Taken At Closing.
10.1 Deliveries by Seller. At or prior to the Closing, Seller shall deliver
to Title Agent (duly executed where appropriate) to be held by it in Escrow and
to be disbursed in accordance with the provisions of Section 3.2:
(a) A ▇▇▇▇ of Sale for the Acquisition Assets in the form of Exhibit F
attached hereto;
(b) An assignment and assumption agreement in the form of Exhibit G
attached hereto executed in counterpart by Seller (the "Assignment and
Assumption Agreement");
(c) The Development Agreement executed in counterpart by Seller;
(d) A non-competition agreement in the form of Exhibit H (the "Non-
Competition Agreement") executed in counterpart by Seller;
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(e) General Warranty Deed acceptable to the Title Agent conveying to
Buyer the Real Property (the "Deed");
(f) Registration, title and motor vehicle transfer forms for, and
other documentation required to transfer to Buyer and enable Buyer to properly
license, each motor vehicle which is part of the Acquisition Assets;
(g) Confirmation that all of the Encumbrances other than the Permitted
Encumbrances have been removed as an Encumbrance against the Acquisition Assets;
(h) A certificate signed by Seller certifying the fulfillment of the
conditions set forth in Section 7.1 through 7.3; and
(i) Consents of the other parties to the Assumed Contracts for those
Assumed Contracts where such consent is required for the assumption of such
Assumed Contracts.
10.2 Deliveries by Buyer. At or prior to the Closing, Buyer shall deliver
to Title Agent (duly executed where appropriate) to be held by it in Escrow and
to be disbursed in accordance with the provisions of Section 3.2:
(a) Immediately available funds in the amount by which the Purchase
Price (adjusted to reflect appropriate credits and debits required by Section
2.2) exceeds the sum of the Deposit plus the accrued interest thereon;
(b) Certified copies of the Resolutions of the Board of Directors of
Buyer approving the transactions described in this Agreement;
(c) The Assignment and Assumption Agreement executed in counterpart by
Buyer;
(d) The Development Agreement executed in counterpart by Buyer;
(e) The Non-Competition Agreement executed in counterpart by Buyer;
(f) Certificates of good standing from the Secretaries of State of
Delaware and Texas;
(g) A certificate signed by an executive officer of Buyer certifying
fulfillment of the conditions set forth in Section 8.1 through 8.3; and
(h) Such other documents as may be reasonably necessary to effect the
Closing.
11. Indemnification; Remedies.
11.1 Survival; Right to Indemnification. All representations, warranties,
covenants and obligations in this Agreement, and any other certificate or
document delivered pursuant to this Agreement, shall survive the Closing. If a
party waives any condition based on the accuracy of any representation or
warranty, or on the performance of or compliance with any covenant or
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obligation, such party's right to indemnification, payment of Damages or other
remedy based on a Breach of such representations, warranties, covenants and
obligations is waived only to the extent of the party's Knowledge of facts and
circumstances at the time the Breach is waived.
11.2 Indemnification and Payment of Damages By Seller. Seller shall
indemnify and hold Buyer, its Affiliates and their respective successors and
assigns ("Buyer's Indemnitees") harmless from, and shall pay to Buyer's
Indemnitees the amount of, all Damages, arising, directly or indirectly, from or
in connection with:
(a) any Breach of any representation or warranty made by Seller in
this Agreement;
(b) any Breach by Seller of any covenant, agreement or obligation of
Seller in this Agreement; and
(c) any Liability of Seller, and all claims, demands and Proceedings
made or brought against Buyer by reason of Seller's ownership, use, operation or
condition of the Acquisition Assets prior to the Closing Date or any of the
transactions described in this Agreement, but excluding the Assumed Liabilities.
11.3 Indemnification By Buyer. Buyer shall indemnify and hold Seller, his
Affiliates, and their respective successors and assigns (collectively, "Seller's
Indemnitees") harmless from, and will pay to Seller's Indemnitees the amount of,
all Damages arising directly or indirectly from or in connection with:
(a) any Breach of any representation or warranty made by Buyer in
this Agreement;
(b) any Breach by Buyer of any covenant, agreement or obligation of
Buyer in this Agreement; and
(c) any claim, demand or Proceeding made or brought against Seller
resulting from Buyer's operation of the Acquisition Assets after the Closing
Date.
11.4 Indemnity Claims.
(a) Notification of Claims. If any claim ("Claim") is asserted by a
party as to which such party may be entitled to indemnification hereunder, such
party (an "Indemnitee") shall notify ("Claims Notice") the party required by the
terms of this Agreement to indemnify the Indemnitee (an "Indemnifying Party")
within 10 days after (1) receipt of notice of commencement of any third-party
litigation against such Indemnitee, (2) receipt by such Indemnitee of notice of
any Claim by a third party ("Third Party Claim") pursuant to an invoice, notice
of claim or assessment, against such Indemnitee, or (3) such Indemnitee becomes
aware of the existence of any other event for which indemnification may be
sought from the Indemnifying Party. The Claims Notice shall describe the Claim
and the specific facts and circumstances in reasonable detail, shall include
copies of the notices referred to in (1) and (2), above, shall indicate the
amount, if known, or an estimate, if possible, of Damages that have been or may
be incurred or suffered.
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(b) Defense of Third Party Claim by Indemnifying Party. The
Indemnifying Party may elect to defend or compromise any Third Party Claim, at
its or his own expense and by its or his own counsel, who shall be reasonably
acceptable to the Indemnitee. The Indemnitee may participate, at its or his own
expense, in the defense of any Third Party Claim assumed by the Indemnifying
Party. Without the approval of the Indemnitee, which approval shall not be
unreasonably withheld or delayed, the Indemnifying Party shall not compromise a
Third Party Claim defended by the Indemnifying Party which would require the
Indemnitee to perform or take any action or to refrain from performing or taking
any action. If the Indemnifying Party does not acknowledge its or his obligation
to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall have
the right to oversee the defense, compromise or settlement of such Claim and to
consult with its or his own counsel regarding the actions taken by the
Indemnifying Party, all at the expense of the Indemnifying Party.
(c) Assumption of Defense by Indemnitee. Notwithstanding anything in
this Section 11.4 to the contrary, if an Indemnitee determines in good faith
that there is a reasonable probability that a Proceeding may adversely affect
the Indemnitee or the Indemnitee's Affiliates other than as a result of monetary
Damages for which it or he would be entitled to indemnification under this
Agreement, the Indemnitee may, by notice to the Indemnifying Party, assume the
exclusive right to defend, compromise, or settle such Proceeding, but the
Indemnifying Party will not be bound by any determination of a Proceeding so
defended or any compromise or settlement effected without its Consent (which may
not be unreasonably withheld or delayed).
(d) Defense of Claim by Indemnitee. If, within 20 days of the
Indemnifying Party's receipt of a Claim Notice involving a Third Party Claim,
the Indemnifying Party shall not have notified the Indemnitee of its or his
election to assume the defense, the Indemnitee shall have the right to assume
control of the defense or compromise of such Claim, and the costs and expenses
of such defense, including costs of investigation and reasonable attorneys'
fees, shall be added to the Claim. The Indemnitee shall have the right to
compromise such Claim without the Consent of the Indemnifying Party.
(e) Cooperation of Parties. The party assuming the defense of any
Claim shall keep the other party reasonably informed at all times of the
progress and development of the party's defense of and compromise efforts
related to such Claim and shall furnish the other party with copies of all
relevant pleading, correspondence and other papers. In addition, the parties
shall cooperate with each other, and make available to each other and their
representatives all available relevant records or other materials required by
them for their use in defending, compromising or contesting any Claim. The
failure to notify the Indemnifying Party timely of the commencement of such
actions in accordance with Section 11.4(a) shall relieve the Indemnifying Party
from the obligation to indemnify under Section 11.2 or 11.3, as the case may be,
but only to the extent the Indemnifying Party establishes by competent evidence
that it or he is or has been materially and adversely prejudiced by such
untimely Claims Notice.
11.5 Remedies; Right of Set-Off. The remedies provided in this Section 11
shall not be deemed exclusive of or limit any other remedies that may be
available to an Indemnitee. If a Buyer's Indemnitee is entitled to
indemnification as provided in Section 11.2, Buyer shall have the right to
set-off the entire amount thereof against the amounts, if any, that Buyer may
owe
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Seller, provided, it shall be a condition to the exercise of the right of set-
off that Buyer gives Seller notice specifying in reasonable detail the basis for
such set-off. Neither the exercise of, nor the failure to exercise, such right
of set-off will constitute an election of remedies or limit Buyer in any manner
in the enforcement of any other remedies that may be available to it.
12. Miscellaneous Provisions.
12.1 Amendment; Waiver. This Agreement may be amended, modified or
superseded only by a written instrument signed by all of the parties to this
Agreement. No party shall be deemed to have waived compliance by another party
of any provision of this Agreement unless such waiver is contained in a written
instrument signed by the waiving party and no waiver that may be given by a
party will be applicable except in the specific instance for which it is given.
The failure of any party to enforce at any time any of the provisions of this
Agreement or to exercise any right or option contained in this Agreement or to
require at any time performance of any of the provisions of this Agreement, by
any of the other parties shall not be construed to be a waiver of such
provisions and shall not affect the validity of this Agreement or any of its
provisions or the right of such party thereafter to enforce each provision of
this Agreement. No course of dealing shall operate as a waiver or modification
of any provision of this Agreement or otherwise prejudice such party's rights,
powers and remedies.
12.2 Limited Assignment; Binding Effect. No party shall assign any of
its or his rights or obligations under this Agreement without obtaining the
prior consent of the other parties to this Agreement; provided, however, that
Buyer may assign any of its rights and obligations under this Agreement without
the prior consent of Seller to any Affiliate of Buyer if Buyer remains
responsible for its obligations under this Agreement under the terms of such
assignment. Subject to the foregoing, all the provisions of this Agreement shall
be binding upon and shall inure to the benefit of and be enforceable by the
parties to this Agreement and their respective heirs, legal representatives,
successors and assigns.
12.3 Construction and Interpretation of Agreement.
(a) Section titles or captions in this Agreement are included for
purposes of convenience only and shall not be considered a part of the Agreement
in construing or interpreting any of its provisions. All references in this
Agreement to Sections shall refer to Sections of this Agreement unless the
context clearly otherwise requires.
(b) When used in this Agreement, the word "including" shall have its
normal common meaning and any list of items that may follow such word shall not
be deemed to represent a complete list of the contents of the referent of the
subject.
(c) The parties have participated jointly in the negotiation and
drafting of this Agreement. If any ambiguity or question of intent or
interpretation arises, no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
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(d) Unless the context otherwise requires, when used in this
Agreement, the singular shall include the plural, the plural shall include the
singular, and all nouns, pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, as the identity of the person or
persons may require.
(e) The parties do not intend that this Agreement shall confer on any
third party any right, remedy or benefit or that any third party shall have any
right to enforce any provision of this Agreement.
12.4 Severability of Provisions. If a court in any proceeding holds any
provision of this Agreement or its application to any person or circumstance
invalid, illegal or unenforceable, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those to
which it was held to be invalid, illegal or unenforceable, shall not be
affected, and shall be valid, legal and enforceable to the fullest extent
permitted by law, but only if and to the extent such enforcement would not
materially and adversely frustrate the parties' essential objectives as
expressed in this Agreement. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties intend that the court add to this
Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be valid and enforceable, so as to effect the original intent
of the parties to the greatest extent possible.
12.5 Confidentiality of Certain Information.
(a) The parties and their respective agents and employees shall hold
and keep confidential all Information which is proprietary in nature and non-
public or confidential, in whole or in part (the "Confidential Information")
which any of them may receive from any other party concerning such other party.
Failure to ▇▇▇▇ any of the Confidential Information as non-public, proprietary
or confidential shall not affect its status as Confidential Information under
the terms of this Agreement. Confidential Information shall not include any
information in the possession of the receiving party (a) that is developed by
such party without reference to and independent of any Confidential Information,
(b) is learned from a third party not under any duty of confidence to the
disclosing party, or (c) becomes part of the public domain through no fault of
the receiving party.
(b) None of the parties nor their respective agents or employees
shall, without the prior consent of the disclosing party, disclose or use any
such Confidential Information, in whole or in part, except in connection with
the performance of the transactions described in this Agreement. Unless
otherwise required by law, none of the parties shall disclose any Confidential
Information acquired as a result of this Agreement to any person or entity,
other than its respective counsel and other representatives, and such other
third parties (such as bankers and lessors) with whom it must communicate to
consummate the transactions described by this Agreement, all of whom must agree
to keep the Confidential Information confidential. If the Closing does not
occur, each party will destroy or return to the disclosing party all copies of
documents that contain that party's Confidential Information.
12.6 Confidentiality of Agreement. Unless otherwise required by law, no
party shall disclose either the terms or existence of this Agreement to any
person other than a party's counsel
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and its other representatives or such other third parties with whom it must
communicate to consummate the transactions described in this Agreement.
12.7 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, if any, shall constitute part of this Agreement and shall be deemed
to be incorporated in this Agreement by reference and made a part of this
Agreement as if set out in full at the point where first mentioned. Nothing in
the Schedules shall be deemed adequate to disclose an exception to a
representation or warranty made in this Agreement unless the Schedule identifies
the exception with particularity and describes the relevant facts in detail. If
any inconsistency between the statements in the body of this Agreement and those
in the Schedules (other than an exception expressly set forth as such in the
Schedules to a specifically identified representation or warranty), the
statements in the body of this Agreement shall control. Without limiting the
generality of the foregoing, the mere listing (or inclusion of a copy) of a
document or other item shall not be deemed adequate to disclose an exception to
a representation or warranty made in this Agreement (unless the representation
or warranty has to do with the existence of the document or other item itself).
The parties intend that each representation, warranty, covenant and obligation
contained in this Agreement shall have independent significance. If any party
has breached any representation, warranty, covenant or obligation contained in
this Agreement in any respect, merely because there exists another
representation, warranty, covenant or obligation relating to the same subject
matter (regardless of the relative levels of specificity) which the party has
not breached shall not detract from or mitigate the party's breach of the first
representation, warranty, covenant or obligation.
12.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original copy of this
Agreement and all of which, when taken together, shall be deemed to constitute
one and the same agreement.
12.9 Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties related to its subject matter and supersedes all
prior proposals, understandings, agreements, correspondence, arrangements and
contemporaneous oral agreements relating to subject matter of this Agreement. No
representation, promise, inducement or statement of intention has been made by
any party which has not been embodied in this Agreement.
12.10 Expenses. Seller shall pay (a) all transfer taxes, intangible taxes
and similar Taxes and all sales, use transfer and similar Taxes, relating to the
transfer of the Acquisition Assets to Buyer, (b) the cost of the Survey, and (c)
the cost of his legal counsel. Buyer shall pay (a) the cost of its legal
counsel, (b) the cost of any environmental assessment of the Real Property (c)
the cost of DevCon's sales commission, (d) the cost of any recordation fees to
put the Deed of record with the appropriate Governmental Body, and (e) the cost
of premiums on the Title Policy. Except as otherwise expressly provided for in
this Agreement, each party will bear its or his own expenses incurred in
connection with the preparation, execution and performance of its obligations
under this Agreement, including all fees and expenses of agents,
representatives, counsel and accountants.
12.11 Further Assurances. Each party shall execute and deliver such
additional documents or take such additional actions as may be requested by
another party to this Agreement if such
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requested document or action is reasonably necessary to effect the transactions
described in this Agreement.
12.12 Governing Law. This Agreement shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of Texas,
without giving effect to any conflict of law rule or principle of such state.
12.13 No Public Announcement. No party shall make any press release or
other public announcement regarding this Agreement or the transactions described
in this Agreement, unless such party is obligated by law or the rules of any
stock exchange upon which its shares are traded to make such a disclosure. When
a party determines that it is obligated by law or the rules of a stock exchange
to make such a disclosure, it shall notify all of the other parties prior to
such disclosure and all of the parties shall cooperate to cause a mutually
agreeable release or announcement to be issued.
12.14 Notices. All notices, requests, consents, approvals, waivers, demands
and other communications required or permitted to be given or made under this
Agreement shall be in writing and shall be deemed delivered to the parties (a)
on the date of personal delivery or transmission by facsimile transmission, (b)
on the first business day following the date of delivery to a nationally
recognized overnight courier service, or (d) or the third business day following
the date of deposit in the United States Mail, postage prepaid, by certified
mail, in each case, addressed as follows, or to such other address, person or
entity as any party may designate by notice to the others in accordance
herewith:
If to Buyer: Atria Communities, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial
Officer and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
General Counsel
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ pllc
3300 National City Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
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With Copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Conner, Gillen, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
12.15 Recovery of Expenses by Prevailing Party. The party prevailing in
any civil action, arbitration or other proceeding shall be entitled to recover
from the nonprevailing party, in addition to any damages the prevailing party
may have been awarded, all reasonable expenses that the prevailing party may
have incurred in connection with such proceeding, including accounting fees,
attorneys' fees and expert witnesses' fees.
12.16 Sellers Knowledge. For purposes of this Agreement, all references
to Seller's Knowledge shall include the Knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the
Knowledge of ▇▇▇ ▇▇▇▇▇▇.
12.17 Cumulative Remedies; Specific Performance. No right or remedy
conferred upon or reserved to any of the parties under the terms of this
Agreement is intended to be, nor shall it be deemed, exclusive of any other
right or remedy provided in this Agreement or by law or equity, but each shall
be cumulative of every other right or remedy. The parties understand and
acknowledge that a party may be damaged irreparably by reason of a failure of
another party to perform any obligation under this Agreement. Accordingly, if
any party attempts to enforce the provisions of this Agreement by specific
performance (including preliminary or permanent injunctive relief), the party
against whom such action or proceeding is brought waives the claim or defense
that the other party has an adequate remedy at law.
In Witness Whereof, the parties have entered into this Agreement as of the
date first written above.
ATRIA COMMUNITIES, INC.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Chief Financial Officer
-------------------------------
("Buyer")
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("Seller")
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