Exhibit 2.6
AGREEMENT OF PURCHASE AND SALE
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THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and entered
into as of the 18th day of March, 1998 (the "Effective Date"), by and among
Ramsay Louisiana, Inc., a Delaware corporation ("Seller"), and Health-One
Properties, LLC, a Utah limited liability company ("Purchaser").
In consideration of the agreements herein contained, the parties agree as
follows:
1. CONVEYANCE. Seller agrees to sell and convey and Purchaser agrees to
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purchase and take title to that certain parcel of real estate lying and being in
the Parish of St. Tammany, State of Louisiana, and being more particularly
described on Schedule A attached hereto, including all right, title and interest
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of Seller in and to all improvements, fixtures, rights, privileges, easements,
hereditaments and appurtenances thereto, and together with all right, title and
interest of Seller in and to the land lying in the bed of any street, road,
avenue or alley, open or proposed, public or private, in front of or adjoining
said property to the center line thereof, and all right, title and interest of
Seller in all personal property owned by Seller and located on said parcel of
real estate (the "Property").
2. PURCHASE PRICE. The purchase price (the "Purchase Price") for the Property
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shall be the sum of Two Million and No/100 Dollars ($2,000,000.00).
(a) Purchaser shall deliver to ▇▇▇▇▇▇ & ▇▇▇▇▇▇, as escrowee (the
"Escrowee"), on the Effective Date, a deposit in the amount of One
Hundred Thousand and No/100 Dollars ($100,000.00) (the "Deposit"),
payable by check in the amount of Ten Thousand and No/100 Dollars
($10,000.00), subject to collection, and by Promissory Note (the
"Deposit Note") delivered simultaneously herewith in the amount of
Ninety Thousand and No/100 Dollars ($90,000.00), payable upon the
earlier to occur of the Closing Date or upon a default by Purchaser in
the payment or performance of any of its obligations under this
Agreement. The Deposit shall be held by Escrowee in escrow (the
"Escrow") as provided in Section 20 of this Agreement.
(b) The Purchase Price payable by Purchaser to Seller at the Closing for
the Property shall be payable as follows:
(i) Escrowee shall disburse the Ten Thousand and No/100 Dollars
($10,000.00) portion of the Deposit, together with
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interest earned thereon, to Seller in accordance with Section 20
of this Agreement; and
(ii) Purchaser shall pay to Seller the sum of Ninety Thousand and
No/100 Dollars ($90,000.00) from the proceeds of the Deposit Note
and Four Hundred Thousand and No/100 Dollars ($400,000.00) in
cash; and
(iii) Purchaser shall deliver to Seller a Note in the amount of
One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00), payable in one year with interest at the rate of
twelve percent (12%) per annum (the "Note"), and Mortgage (the
"Mortgage"), in the forms attached hereto as "Exhibit A" and
"Exhibit B", respectively.
(c) All amounts payable under this Agreement, unless otherwise specified,
shall be paid as follows:
(i) by direct bank transfer, or by other wire transfer of
immediately available funds and payable to Seller, directly or
through the Escrow, unless otherwise directed as payable to
another person or entity by Seller; or
(ii) by check of Purchaser, which need not be certified, up to the
amount of $1,000.00; or
(iii) as otherwise agreed to in writing by Seller or Seller's
attorney.
3. CLOSING; DEED. The consummation of the transactions contemplated by this
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Agreement (the "Closing") shall occur by delivery by Seller to Purchaser of a
properly executed special or limited warranty deed (the "Deed") conveying the
Property to Purchaser, in consideration of the payment by Purchaser to Seller of
the Purchase Price and upon performance of all of the other obligations incurred
under this Agreement, at such location as may be agreed upon by Purchaser and
Seller, at 10:00 A.M. on the 1st day of May, 1998, or such earlier date as may
be mutually agreed upon between Seller and Purchaser (the "Closing Date"),
subject to adjournment pursuant to paragraph 7 hereof. Time shall be of the
essence as to Purchaser's obligation to close on or before the 1st day of May,
1998.
4. TITLE. At Closing, Seller shall convey (and if Purchaser does not cancel
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this Agreement pursuant to Section 7 hereof, Purchaser agrees to accept) fee
simple title
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to the Property to Purchaser, subject to the following exceptions (hereinafter
referred to as the "Permitted Exceptions"):
(a) Liens for ad valorem taxes not yet due and payable;
(b) Those exceptions shown on Schedule B attached hereto and by this
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reference made a part hereof;
(c) All matters that would be shown by an accurate survey or inspection of
the Property, including, but not limited to, easements, encroachments,
overlaps, riparian rights, and boundary disputes;
(d) All building, zoning, environmental, and other state, county or
Federal laws, codes, and regulations (whether existing or proposed),
affecting the Property, including any and all special exceptions,
conditions, site plan approvals, proffers, and other similar matters,
if any, related to the zoning of the Property or otherwise; and
(e) Any other title exceptions discovered and waived by Purchaser as
hereinafter provided.
5. SELLER'S REPRESENTATIONS AND WARRANTIES. To induce the Purchaser to enter
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into this Agreement, Seller hereby represents and warrants to Purchaser, as
follows:
(a) POWER. Seller has the legal power, right and authority to enter into
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this Agreement and the instruments referenced herein, and to consummate the
transactions contemplated hereby and this Agreement constitutes a valid and
legally binding obligation of Seller, enforceable against Seller in accordance
with its terms.
(b) REQUISITE ACTION. Except for Seller's lender's consent referred to in
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Section 13 hereof, all requisite action (corporate, trust, partnership or
otherwise) has been taken by Seller in connection with its entering into this
Agreement, the instruments referenced herein, and the consummation of the
transactions contemplated hereby.
(c) AUTHORITY. The individuals executing this Agreement and the
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instruments referenced herein on behalf of Seller have the legal power, right
and actual authority to bind Seller to the terms and conditions herein and
thereof.
6. PURCHASER'S REPRESENTATIONS AND WARRANTIES. To induce the Seller to enter
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into this Agreement, Purchaser hereby represents and warrants to Seller, as
follows:
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(a) POWER. Purchaser has the legal power, right and authority to enter
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into this Agreement and the instruments referenced herein, and to consummate the
transactions contemplated hereby and this Agreement constitutes a valid and
legally binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
(b) REQUISITE ACTION. All requisite action (corporate, trust, partnership
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or otherwise) has been taken by Purchaser in connection with entering into this
Agreement, the instruments referenced herein, and the consummation of the
transactions contemplated herein and thereof.
(c) AUTHORITY. The individuals executing this Agreement and the
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instruments referenced herein on behalf of Purchaser have the legal power, right
and actual authority to bind Purchaser to the terms and conditions herein and
thereof.
7. TITLE OBJECTIONS. Purchaser shall have twenty (20) days after the
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Effective Date in which to search title to the Property and in which to furnish
Seller with a copy of Purchaser's title commitment and a written statement of
any title objections adversely affecting the marketability of said title other
than the Permitted Exceptions. Should Purchaser fail to notify Seller of any
such title objections within the aforesaid time period, Purchaser shall be
deemed to have waived all objections to the title of the Property. Seller shall
have twenty (20) days after receipt of any such written objections (hereinafter
referred to as the "Title Cure Period") in which Seller shall in good faith
endeavor to satisfy or correct (but shall not be obligated to cure) all such
valid title objections. In the event Seller fails to satisfy or correct all
valid title objections within the Title Cure Period, Purchaser shall, by written
notice to Seller given within five (5) days after the expiration of the Title
Cure Period, elect one of the following: (a) to waive such title objections and
to close the transaction on or before the later of (i) the Closing Date, or (ii)
three (3) days following such notice, accepting the Deed subject to such title
objections and without reduction of the Purchase Price; or (b) to terminate this
Agreement and receive a refund of the Deposit, in which event neither Seller nor
Purchaser shall have any rights, duties or obligations under this Agreement,
except for any rights or obligations hereunder which, by their terms, survive
any termination, cancellation, rescission, expiration or consummation of this
Agreement, and the lien or right, if any of Purchaser against or to the Property
shall wholly cease. Seller shall not be required and is not obligated hereby to
bring any action or proceeding, or otherwise to incur any expense, to render the
title to the Property free of any matters objected to by Purchaser. The
acceptance of the Deed by Purchaser shall be deemed to be full performance of
and discharge of any agreement and obligation on the part of Seller to be
performed pursuant to the provisions of this Agreement, except for any rights or
obligations hereunder which, by their terms, survive any termination,
cancellation, rescission, expiration or consummation of this Agreement.
Mortgages encumbering the Property
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which are to be paid by Seller from the Purchase Price at the Closing shall not
constitute valid title objections.
8. SURVEY; FEASIBILITY STUDIES. Purchaser or its agents shall have the
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privilege of going on the Property prior to Closing to make surveys and perform
engineering studies with regard to the Property. In addition, Purchaser shall
have the right, at Purchaser's sole cost and risk, to perform cleanup work and
make minor repairs to the Property, provided that Purchaser provides Seller with
advance notice of the nature of such cleanup and repair work. Purchaser shall
give Seller advance notice of any entry onto the Property and the opportunity to
accompany Purchaser or its agent. Any such survey shall be performed by a
surveyor registered and licensed in the State in which the property is located
and selected by Purchaser, at Purchaser's sole expense (hereinafter referred to
as the "Survey"). Purchaser hereby covenants and agrees to indemnify, defend
and hold Seller and its employees, officers, directors, representatives and
affiliates harmless from any loss, liability, cost, claims, damages, demands,
actions, causes of action, liens, claims of lien and suits resulting from
Purchaser's or its agents' activities under this paragraph. The preceding
indemnity shall survive the termination, cancellation, rescission, expiration or
consummation of this Agreement. In addition, Purchaser shall, at Purchaser's
cost, name Seller as Additional Insured on a general liability policy covering
the Property in form and substance satisfactory to Seller and provide written
evidence thereof to Seller prior to Purchaser's entry onto the Property. The
Purchaser shall promptly following the completion of any survey and engineering
studies with regard to the Property restore the Property to its condition
existing on the date hereof, and Purchaser's obligations so to restore shall
survive any termination, cancellation, rescission, expiration or consummation of
this Agreement. The legal description to be used in the Deed shall be the legal
description attached hereto as Schedule A.
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9. CLOSING COSTS. Purchaser shall pay at Closing all recording costs,
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including, without limitation, the cost of recording the Deed. Purchaser shall
pay the cost of its title search and all owner and mortgagee title insurance
premiums, any and all documentary, transfer or mortgage taxes, the cost, if any,
of the title company for conducting the Closing, the cost of the survey, and the
cost of all engineering and other inspections of the Property. Each party shall
pay is own attorneys' fees and expenses.
10. APPORTIONMENT OF TAXES. All city, state and county ad valorem taxes (the
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"Taxes") for the period including Closing shall be prorated and accounted for
between Seller and Purchaser as of 12:01 A.M. on the Closing Date based on the
latest millage rate and assessment available. Should such proration be
inaccurate based on the actual bills when received, either party shall be
entitled to receive on demand, a payment from the other correcting such
inaccuracy. The provisions of this paragraph shall survive the Closing.
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11. CASUALTY LOSS. In the event of material damage to or material destruction
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of the Property by fire or other casualty prior to the Closing, which material
damage or material destruction has not been repaired or restored by the Closing
Date, Purchaser may, at its option, elect, (i) not to consummate the transaction
contemplated hereby, in which event the Deposit shall be refunded to Purchaser
and neither party shall have any rights or obligations hereunder, except for any
rights or obligations hereunder which, by their terms, survive any termination,
cancellation, rescission, expiration or consummation of this Agreement, or (ii)
to consummate the transaction contemplated hereby, irrespective of such damage
or destruction and without reduction of the purchase Price, but with a credit to
Purchaser in the amount of any insurance proceeds received to date and an
assignment to Purchaser of Seller's right to applicable insurance proceeds
received to date and an assignment to Purchaser of Seller's right to applicable
insurance proceeds to be received thereafter, if any. Damage or destruction in
an amount in excess of Five Hundred Thousand Dollars ($500,000) shall be deemed
"material" for the purposes of this paragraph. In the event of any non-material
damage to or destruction of the Property by fire or other casualty prior to the
Closing, Closing shall occur as provided for in this Agreement with no
adjustments to the Purchase Price, but with a credit to Purchaser in the amount
of any insurance proceeds received to date and an assignment to Purchaser of
Seller's right to applicable insurance proceeds to be received thereafter, if
any.
12. CONDEMNATION. Seller agrees to give Purchaser written notice of any action
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or proceeding for condemnation of any part of the Property, which may result in
the taking of all or any part of the Property. Upon such notification,
Purchaser shall have the right to be exercised within ten (10) days after
receipt of such notice, to terminate this Agreement and receive a refund of the
Deposit. If Purchaser does not elect to terminate this Agreement, then this
Agreement shall remain in full force and effect and Seller will credit to
Purchaser at Closing the amount of any monies received by Seller to date by
reason of such taking, and will assign to Purchaser at Closing the amount of any
monies received by Seller to date by reason of such taking, and will assign to
Purchaser the right to any condemnation awards or proceeds received after such
date relating to the Property.
13. CONDITIONS TO CLOSING.
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13.1 FEASIBILITY STUDY PERIOD. (a) Purchaser's obligations hereunder are
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subject to Purchaser's satisfactory engineering study of the
improvements at the Property and Purchaser's receipt of all
applicable Federal, State and local governmental approvals for
occupancy and use of the Property as a rehabilitation hospital.
Purchaser shall use reasonable efforts to secure all necessary
licenses, permits and approvals within fifteen (15) days of the
Effective Date and agrees to give Seller prompt written notice of the
results of all requests for said licenses, permits and approvals. In
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the event the foregoing conditions are not satisfied in Purchaser's
reasonable discretion, then Purchaser shall have the right to give
written notice to Seller not later than May 25, 1998, terminating this
Agreement, and in such event, Purchaser shall be entitled to a refund
of all of the Deposit, less the sum of $100.00 which shall be paid to
Seller as consideration for entering into this Agreement, and neither
party shall have any right, duty or obligation pursuant to this
Agreement, except for any rights or obligations hereunder which, by
their terms, survive any termination, cancellation, rescission,
expiration or consummation of this Agreement.
(b) INSPECTION OF PROPERTY; AS-IS CONVEYANCE. Purchaser represents
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and warrants that Purchaser has fully inspected or will fully inspect
the Property before Closing, and has been or is being given full
opportunity to conduct any studies and investigations requested of
Seller, including the opportunity to conduct its own physical and
environmental inspections and other inspections described in paragraph
8. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE ROOF, ALL
STRUCTURAL COMPONENTS (SUCH AS ITS FOUNDATION, SLAB, BEARING WALLS,
AND COLUMNS), ALL HEATING, VENTILATING, AIR CONDITIONING, MECHANICAL,
PLUMBING AND ELECTRICAL SYSTEMS, AND ALL OTHER PARTS OF THE
BUILDING(S) LOCATED ON THE PROPERTY, WILL BE CONVEYED IN "AS-IS"
"WHERE-IS" CONDITION ON THE CLOSING DATE. PURCHASER ACKNOWLEDGES THAT
THE PRICE OF THE PROPERTY WAS NEGOTIATED BASED UPON THE PROPERTY'S
PRESENT CONDITION; ACCORDINGLY, SELLER IS NOT OBLIGATED TO MAKE
REPAIRS TO THE PROPERTY, UNLESS OTHERWISE STATED HEREIN, AND PURCHASER
HAS NO RIGHT TO DEMAND ANY REPAIRS. It is agreed that Purchaser is
not relying on any representation or warranty of Seller, its
representatives, agents or employees, whatsoever pertaining to the
Property, the condition thereof, including, without limitation, the
presence or non-presence of wetlands as may be determined by the U.S.
Army Corps of Engineers or other governmental authority, the value
thereof, the physical environmental or other conditions of the
Property, or any other matter with respect to the Property, and Seller
specifically disclaims making any such representation or warranty.
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13.2 OTHER CONDITIONS.
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(a) Purchaser shall have delivered the Purchase Price to Seller at
Closing;
(b) All of Seller's and Purchaser's representations and warranties
contained in this Agreement shall be true and correct in all
material respects as of the Closing;
(c) Seller and Purchaser shall have satisfied and performed all
conditions and obligations to be satisfied and performed by
Seller or Purchaser, as applicable, hereunder prior to or at
Closing;
(d) Seller shall have received all required consents from its lender
in connection with the transactions contemplated hereunder at or
prior to the Closing Date.
13.3 TERMINATION. In the event all of the conditions set forth in Section
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13.2 are not satisfied (or otherwise waived by the applicable party)
by the Closing Date for any reason other than the default of
Purchaser or Seller hereunder, this Agreement shall terminate,
Purchaser shall be entitled to a refund of the entire Deposit, and
neither party shall have any further right, duty or obligation
pursuant to this Agreement, except for any rights or obligations
which, by their terms, survive any termination, cancellation,
rescission, expiration or consummation of this Agreement.
13.4 DELIVERY OF STUDY MATERIALS. Purchaser and Seller agree that, if
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Purchaser shall cancel this Agreement pursuant to this paragraph 13,
then at Seller's request, Purchaser shall deliver to Seller copies of
any surveys, tests, reports, studies, plans and development data
prepared by third parties which Purchaser may have in Purchaser's
possession or available to it. Purchaser and Seller agree that the
time, effort, costs and expenses which will be expended by Purchaser
in performing the studies and investigations contemplated by this
Agreement, the $100.00 sum to be paid to Seller from the Deposit in
the event Purchaser terminates this Agreement in accordance with this
paragraph, and the furnishing of such surveys, tests, studies and
development data to Seller are of substantial benefit and value to
Seller and constitute good and valuable consideration for the
execution of this Agreement by Seller.
14. CLOSING DOCUMENTS. At Closing, the following documents shall be executed
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and/or delivered:
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14.1 AFFIDAVIT OF SELLER. At Closing, Seller shall provide to Purchaser
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and its title company a standard form title affidavit (but excluding
any indemnity obligations), in form and substance acceptable to
Seller's counsel, sufficient to induce such title company to issue a
title policy without exception for mechanics' and materialmen's liens
or the rights of parties in possession.
14.2 AUTHORITY OF SELLER. Seller shall deliver to Purchaser satisfactory
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evidence of its due and proper authority and power to perform its
obligations hereunder and to execute and deliver all documents
required hereby.
14.3 AUTHORITY OF PURCHASER. Purchaser shall deliver to Seller
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satisfactory evidence of its due and proper authority and power to
perform its obligations hereunder and to execute and deliver all
documents required hereby.
14.4 DEED. Seller shall execute and deliver to Purchaser the Deed
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conveying the Property to Purchaser.
14.5 ▇▇▇▇ OF SALE. Seller shall execute and deliver to Purchaser a ▇▇▇▇ of
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sale conveying all right, title and interest of Seller, without
warranty, in and to any personal property owned by Seller and located
on the Property, in the form attached hereto as "Exhibit C".
14.6 FIRPTA AFFIDAVIT. A certificate certifying that Seller is not a
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foreign person, corporation or partnership or state within the meaning
Section 1445 of the Internal Revenue Code of 1986, as amended.
15. ASSIGNMENT. Purchaser shall not assign any or all of its rights and
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obligations pursuant to this Agreement (whether by direct or indirect transfer
or assignment) without Seller's prior written consent, which consent may be
withheld or granted in Seller's sole and absolute discretion.
16. BROKERAGE COMMISSION. Seller and Purchaser hereby represent and warrant
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that no party is entitled, as a result of the actions of Seller or Purchaser, to
a real estate commission or other fee resulting from the execution of this
Agreement or the transaction contemplated hereby, other than Stirling
Properties, Inc. ("Stirling") and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Real Estate ("▇▇▇▇▇▇▇").
Seller shall be responsible for the payment of the brokerage fee of 5% of the
Purchase Price, in the total amount of $100,000.00, which commission shall be
split equally between Stirling and ▇▇▇▇▇▇▇. Seller and Purchaser hereby agree
to indemnify, defend and hold each other harmless from and against any and all
costs, damages and expenses (including reasonable
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attorneys' fees) resulting directly or indirectly from any such claim arising
out of the actions of or contract with Seller or Purchaser, as the case may be,
other than the Exclusive Listing Contract for Sale of Property between Seller
and Stirling for which Seller shall be responsible for any liability arising
therefrom. The representations, warranties and indemnities contained in this
paragraph shall survive the rescission, cancellation, termination or
consummation of this Agreement.
17. NOTICES. Any notice or communication shall be in writing and shall be sent
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either by: (a) personal delivery service with charges therefor billed to
shipper; (b) overnight or expedited delivery service with charged therefor
billed to shipper; (c) facsimile transmission provided a confirmation copy is
mailed pursuant to subparagraph (d) below; or (d) United States mill, postage
prepaid, registered or certified mail, return receipt requested. Any notice or
communication sent as above provided shall be deemed given or delivered: (a)
upon receipt if personally delivered (provided that such delivery is confirmed
by the courier delivery service); (b) if sent by United States Mail, on the date
of the postmark appearing on such return receipt; or (c) on the date of actual
delivery by any overnight or expedited delivery service or actual receipt if
sent by facsimile transmission (provided receipt is confirmed as provided
above). Any notice or communication required or permitted hereunder shall be
addressed as follows:
To Purchaser: Health-One Properties, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
To Seller: Ramsay Louisiana, Inc.,
c/o Ramsay Health Care, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
18. REMEDIES.
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18.1 REMEDIES OF SELLER. In the event of Purchaser's default under this
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Agreement, the Deposit shall be paid to and/or retained by Seller as
full liquidated damages, this Agreement shall be null and void, and
none of the parties hereto shall have any further rights or
obligations hereunder, except for any rights or obligations hereunder
which, by their terms, survive any termination of this Agreement. It
is hereby agreed that, without resale, Seller's damages will be
difficult to ascertain and the Deposit constitutes a reasonable
liquidation thereof and is intended not as a penalty, but as full
liquidated damages. Seller agrees that in the event of a default by
Purchaser, it shall not initiate any proceeding to recover damages
from Purchaser in excess of the Deposit, and Purchaser agrees that in
the event of its default, it shall not initiate any proceeding
challenging Seller's right to retain and/or receive the full amount of
the Deposit as liquidated damages. Nothing contained in this
paragraph shall limit Purchaser's restoration and indemnification
obligations set forth in paragraphs 8 and 16 hereof.
18.2 REMEDIES OF PURCHASER. In the event of Seller's default under this
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Agreement, Purchaser agrees to provide Seller with written notice of
such default specifying the nature of such default. Seller shall have
ten (10) days from the date of receipt of said notice to cure such
default. In the event Seller does not cure such default within such
ten (10) day period, Purchaser's sole remedies shall be (i) to obtain
specific performance of Seller's obligation to sell the Property to
Purchaser pursuant to this Agreement, or (ii) to terminate this
Agreement, in which event Purchaser shall be entitled to the return of
the Deposit, this Agreement shall terminate and the parties hereto
shall have no further rights or obligations hereunder, except for any
rights or obligations hereunder which, by their terms, survive any
termination, cancellation, rescission or expiration of this Agreement.
No other remedy shall be available for Seller's breach of this
Agreement.
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19. MISCELLANEOUS.
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19.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
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between the parties. No representation, promise or inducement not set
forth herein shall be binding upon any party.
19.2 NO ORAL MODIFICATIONS. This Agreement shall not be modified or
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amended except by an instrument in writing executed by or on behalf of
Purchaser and Seller.
19.3 BINDING EFFECT. The provisions of this Agreement shall inure to the
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benefit of and shall be binding upon the parties and their respective
heirs, successor and assigns and the legal representatives of their
estates, subject to the provisions of paragraphs 15 of this Agreement.
19.4 TIME OF ESSENCE. TIME IS OF THE ESSENCE OF THIS AGREEMENT.
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19.5 CALCULATION OF TIME. If the time period by which any right, option or
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election provided under this Agreement must be exercised, or by which
any act required must be performed, or by which the Closing must be
held, expires on a Saturday, Sunday or legal holiday, then such time
period shall be automatically extended through the close of business
on the next regular business day.
19.6 COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same Agreement.
19.7 GOVERNING LAW. This Agreement shall be governed by and construed
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under the laws of the State in which the Property is located.
19.8 NO RECORDATION. Purchaser shall not have the right to record this
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Agreement. It is expressly agreed and understood that upon the filing
for record of this Agreement by or through the act or effort of
Purchaser, or its successors, in any manner whatsoever, as an exhibit
or attachment to any other instrument so filed, or otherwise, in the
Parish of St. Tammany in which the Property lies or any other public
records, then, and in such event, at the option of Seller, Purchaser
shall be in default hereunder and Seller shall be entitled to receive
from Purchaser the sum provided in Paragraph 18.1 as liquidated
damages by reason of such default, and this Agreement shall be null
and void and of no further force and effect.
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19.9 NO WAIVER. No failure of any party to exercise any power given such
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party hereunder or to insist upon strict compliance by any other
party with its obligations hereunder, and no custom or practice of
the parties at variance with the terms hereof shall constitute a
waiver of any party's right to demand exact compliance with the
terms hereof.
19.10 CONSTRUCTION OF AGREEMENT. The parties acknowledge and agree that
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they have been represented by counsel and that each of the parties
has participated in the drafting of this Agreement. Accordingly, it
is the intention and agreement of the parties that the language,
terms and conditions of this Agreement are not to be construed in
any way against or in favor of any party hereto by reason of the
responsibilities in connection with the preparation of this
Agreement.
19.11 PURCHASER'S AGREEMENTS. Prior to Closing, Purchaser shall not enter
----------------------
into any agreements with any governmental or quasi-governmental
authorities or with any other person or entity that would bind
Seller or the Property or run with the Property without Seller's
prior written consent, which consent may be withheld in Seller's
sole discretion.
20. ESCROW. (a) The Ten Thousand and No/100 Dollars ($10,000.00) portion of
------
the Deposit payable by the Purchaser pursuant to Section 2 hereof shall be held
in Escrow by the Escrowee in an interest bearing account selected by Escrowee,
pending the Closing hereunder. At Closing, the Escrowee shall release the Ten
Thousand and No/100 Dollars ($10,000.00) portion of the Deposit together with
any interest earned thereon (collectively, the "Escrow Fund") in accordance with
this Section 20. At Closing, the Escrowee shall release the Escrow Fund to
Seller. In the event the Closing shall not occur by reason of a default by
Seller hereunder, or by reason of the exercise by either party hereto of its
right to cancel or terminate this Agreement pursuant to the terms set forth
herein (other than by reason of Purchaser's default hereunder), the Escrowee
shall deliver the Escrow Fund to Purchaser upon the occurrence of such default
or upon such cancellation of this Agreement. In the event that Closing does not
occur by reason of a default by Purchaser hereunder, the Escrowee shall deliver
the Escrow Fund to Seller.
(b) Any claim for the disbursement of the Escrow Fund pursuant to
Subparagraph 20(a) above or otherwise pursuant to this Agreement, shall be made
by either the Purchaser or the Seller (the "Claiming Party") by written notice
(the "Claim Notice") given to the other party (the "Notified Party"), and the
Escrowee. Such notice shall state in reasonable detail the basis for such
claim. In the event that the Notified Party shall not object to the Claim
Notice within 10 days after receipt thereof by written notice given to the
Escrowee and the Claiming Party, the Escrowee shall disburse the Escrow Fund
pursuant to the Claim Notice. In the event that the
14
Notified Party shall object to the Claim Notice as aforesaid, the Escrowee shall
refrain from disbursing the Escrow Fund until the dispute between the Purchaser
and the Seller is resolved, and, in addition, the Escrowee shall have the rights
and options set forth in subsection (e) below. This procedure is not intended
to extend the Closing or to create a grace period for performance.
(c) The Escrowee may rely and shall be protected in acting or refraining
from acting upon any written notice, instruction or request furnished to it
hereunder and believed by it to be genuine and to have been signed or presented
by the proper party or parties, in which case it is agreed that the Escrowee is
under no duty to make any further inquiry.
(d) The Escrowee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Agreement, and may consult with counsel of its own
choice and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of counsel.
(e) If conflicting demands are made or notices are served upon the Escrowee
with respect to this Agreement, including any Claim Notice, the parties hereto
agree that the Escrowee shall be entitled to refuse to comply with any such
claim or demand and to withhold and stop all further proceedings in the
performance of this Agreement so long as such disagreement shall continue. In
so doing, the Escrowee shall not be or become liable for damages or interest to
either of the parties hereto or to any other person for its failure to comply
with such conflicting or adverse demands or notices. The Escrowee shall be
entitled to continue to so refrain and so refuse to act until (i) the rights of
the adverse claimants have been finally adjudicated in a court having and
assuming jurisdiction of the parties, and the Escrowee shall have received
satisfactory evidence thereof (including, at its option, an opinion of counsel
selected by it), or (ii) all differences shall have been adjusted by mutual
agreement of the parties and the Escrowee shall have been notified thereof in
writing signed by all said parties. In the alternative, the Escrowee may, but
shall not be obligated to, file a suit in interpleader for a declaratory
judgment for the purpose of having the respective rights of the claimants
adjudicated, and may deposit with the court the amount of the Escrow Fund held
by it, in which event Seller and Purchaser, jointly and severally, agree to pay
all costs, expenses and attorneys' fees incurred by the Escrowee in connection
therewith, the amount thereof to be fixed and such judgment therefor to be
rendered by the court in such suit.
(f) Seller and Purchaser each releases the Escrowee from any act done or
omitted to be done by the Escrowee in good faith in the performance of its
duties hereunder, and they hereby agree to indemnify the Escrowee for, and to
hold it harmless against, any loss, liability or expense incurred by the
Escrowee, arising out
15
of or in connection with its entering into this Agreement and carrying out its
duties hereunder, including the costs and expenses of defending itself against
any claim or liability in the premises.
* * * *
16
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year indicated below.
PURCHASER:
Health-One Properties, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
Date Executed: March 13, 1998
--------------------------------
SELLER:
Ramsay Louisiana, Inc.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Date Executed: March 18, 1998
--------------------------------
FOR VALUE RECEIVED, the undersigned hereby, jointly and severally,
unconditionally, absolutely and irrevocably guarantee to Ramsay Louisiana, Inc.,
its successors, endorsees and assigns the full and timely payment and
performance of all present and future obligations and liabilities of all kinds
of Health-One Properties, LLC to Ramsay Louisiana, Inc. under this Agreement of
Purchase and Sale on account of a breach by Health-One Properties, LLC of any of
its representations or warranties contained in this Agreement of Purchase and
Sale (collectively, the "Obligations"). Each of the undersigned's obligations
hereunder shall not be affected by the genuineness, validity, regularity or
enforceability of the Obligations, the Agreement or any instrument evidencing
any Obligations, or by the existence, validity, invalidity, enforceability,
perfection, non-perfection, release or extent of any direct or indirect
collateral therefor or by any other circumstance relating to the Obligations
which might otherwise constitute a defense to this guaranty. Ramsay Louisiana,
Inc. makes no representation or warranty in respect to any such circumstance and
has no duty or responsibility whatsoever to either of the
17
undersigned in respect to the management and maintenance of the Obligations or
any collateral therefor. In the event that any payment to Ramsay Louisiana,
Inc. in respect to any of the Obligations is rescinded or must otherwise be
returned for any reason whatsoever, each of the undersigned shall remain liable
hereunder in respect to such Obligations as if such payment had not been made.
This guaranty is intended to be and shall constitute a guaranty of payment and
not just of performance.
This is a continuing guaranty and agreement and this guaranty and the
rights and obligations of the parties hereto shall remain in full force and
effect and be binding upon the undersigned and their respective successors and
assigns from and after the date hereof until all the Obligations have been paid
and performed in full and the expiration of any further period within which a
trustee or other similar official in a bankruptcy, insolvency, reorganization or
similar proceeding may avoid, rescind or set aside any payment of any of the
Obligations made within such period. The provisions of this guaranty shall
survive the expiration or earlier termination of the term of the Agreement. It
is expressly acknowledged and agreed that the Obligations of the undersigned
hereunder are and shall be absolute and unconditional under any and all
circumstances, without regard to the validity, regularity or enforceability of
the Agreement.
/s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
18
EXHIBIT "A"
PROMISSORY NOTE
$1,500,000.00 Covington, Louisiana
May 1, 1998
FOR VALUE RECEIVED, the undersigned, maker, endorser and surety,
Health-One Properties, LLC, having an address at _______________________ (the
"Borrower"), promises to pay to the order of Ramsay Louisiana, Inc., at c/o
Ramsay Health Care, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Bearer"), or at such other place as the holder hereof may from time
to time designate in writing, the principal sum of One Million Five Hundred
Thousand and No/100 Dollars $1,500,000.00 (the "Principal") on May 1, 1999 (the
"Maturity Date"), together with interest thereon from and after the date hereof
on the outstanding Principal amount at the rate of twelve (12%) percent per
annum. Interest accrued on this Note shall be payable monthly, commencing on
June 1, 1998, and on the first day of each month thereafter, until the Principal
and all accrued interest thereon is paid in full.
Any amounts of interest or Principal or other sums owed under this
Note which are not paid when due shall bear interest at a rate equal to the
lesser of fifteen (15%) percent per annum or the maximum rate of interest
allowed by applicable law ("Default Interest"). All payments hereunder shall be
in lawful money of the United States of America which are available for
immediate use by Bearer not later than the due date of such payment, and without
set-off or counterclaim or deduction of any nature whatsoever.
This Note is and shall be subject to the following additional terms
and conditions:
1. Definitions. Unless otherwise defined herein, capitalized
-----------
terms used in this Note shall have the respective meanings ascribed to such
terms in that certain Mortgage dated as of the date hereof made by Borrower in
favor of Bearer (the "Mortgage").
2. Prepayment. The indebtedness evidenced by this Note may be
----------
prepaid at any time in whole or in part prior to the Maturity Date without
penalty or premium.
3. Acceleration of Maturity Date/Remedies. Time shall be of the
--------------------------------------
essence as to all of Borrower's obligations under this Note. In the event that
(a)
19
Borrower shall fail to make timely payment of interest and/or Principal or of
any other amount due and payable hereunder; or (b) Borrower shall fail to make
timely payment of real estate taxes assessed against the mortgaged premises; or
(c) the Maturity Date shall have occurred; or (d) a court having jurisdiction
enters a decree or order for relief in respect of Borrower in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or other similar official (hereinafter collectively
referred to as "receiver or trustee") of Borrower or for any substantial part of
the property of Borrower or ordering the winding-up or liquidation of the
affairs of Borrower and such decree or order shall remain unstayed and in effect
for a period of 30 consecutive days, or should Borrower commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or taking
possession by a receiver or trustee of Borrower or for any substantial part of
the property of Borrower, or make any general assignment for the benefit of
creditors, or fail generally to pay the debts of Borrower as they become due, or
take action in furtherance of any of the foregoing; or (e) any other default or
Event of Default under the Mortgage shall have occurred, then in any such event,
and in addition to any other remedies Bearer may have at law or in equity, at
Bearer's option the entire Principal, together with all accrued interest
thereon, all other sums evidenced and/or secured hereby or by the Mortgage, and
all other expenses, including, without limitation, attorneys' fees and expenses
for legal services incurred by or on behalf of Bearer in collecting or enforcing
the payment hereof or thereof, and any insurance premiums due in keeping the
mortgaged premises insured against casualty loss, fire or other damage, shall
immediately become due and payable without regard to the scheduled Maturity Date
set forth herein. Notice of the exercise of such option by Bearer is hereby
waived by Borrower. If a default under this Note or an Event of Default under
the Mortgage shall occur, it shall be lawful for the mortgaged property, as
described in the Mortgage, to be seized and sold under executory process issued
by any court of competent jurisdiction, without appraisement, to the highest
bidder, payable in cash; the said Borrower hereby confessing judgment in favor
of said Bearer and such person or persons who may be the owner or owners of said
indebtedness for the full amount thereof, capital and interest, together with
all costs, including the attorney's fees herein stipulated. The said Borrower
further expressly waives the citation and all notices and delays, including the
three (3) day notice provided by Article 2639 of the Code of Civil Procedure;
the said Borrower further waives and renounces all and every appraisement and
the benefit of appraisement and all laws relating to appraisement of property
seized and sold under executory or any other legal process.
4. Late Charge. In the event that any payment due hereunder shall
-----------
not be made by Borrower when such payment is due and payable, in addition to any
20
other remedies Bearer may have at law or in equity, a late charge of five cents
($0.05) for each dollar ($1.00) so overdue for the purpose of defraying the
expense incident to handling such delinquent payment shall be immediately due
payable to Bearer.
5. Due on Transfer. Bearer shall have the right and option to
---------------
accelerate the Maturity Date upon certain transfers or other dispositions of
interests in the mortgaged premises, all as set forth in the Mortgage.
6. Costs of Collection. In the event this Note or any part of the
-------------------
indebtedness evidenced hereby be collected by law or through or under advice
from an attorney at law, the Bearer shall be entitled to collect all costs of
collection, including, without limitation, attorneys' fees and expenses, which
are hereby fixed at twenty five (25%) percent on the amount owing, with or
without suit, all of which Borrower agrees to pay upon demand therefor.
7. Mortgage. This Note is the Note referred to in and secured by
--------
the Mortgage and the holder hereof is entitled to all of the benefits of the
Mortgage. All of the terms and conditions of the Mortgage are incorporated
herein by reference as if fully set forth herein.
8. Waiver. Borrower waives (i) presentment for payment, demand,
------
protest, notice of non-payment or dishonor and of protest, valuation and
appraisement and any and all other notices and demands whatsoever, and agrees to
remain bound until the Principal and interest and any other sums owed are paid
in full notwithstanding any extensions of time for payment which may be granted,
even though the period of extension be indefinite, and notwithstanding any
inaction by, or failure to assert any legal right available to, the holder of
this Note, and (ii) any right it may have to demand a trial by jury with respect
to the enforcement of, any controversy arising under or in any way relating to,
this Note or the Mortgage.
9. Assignment. This Note and every covenant and agreement herein
----------
contained shall be binding upon Borrower and its successors and permitted
assigns, and shall inure to the benefit of Bearer and its successors and
assigns.
10. Modification. No provisions of this Note shall be modified,
------------
waived or terminated, except by an instrument in writing, signed by the party
against whom enforcement of such modification, waiver or termination is to be
enforced.
11. Governing Law. This Note shall be construed in accordance
-------------
with, and governed by, the laws of the State of Louisiana, without regard to the
principles of conflicts of laws.
21
12. Notices. All notices and other communications required or
-------
permitted hereunder shall be given and deemed received as provided in the
Mortgage.
13. Relationship. Borrower and Bearer intend that the
------------
relationship created under this Note be solely that of debtor and creditor.
Nothing herein is intended to create, nor shall it create, nor shall it be
deemed to create, a joint venture, partnership, tenancy-in-common, or joint
tenancy relationship between Borrower and Bearer, nor grant Bearer any interest
in the mortgaged premises other than that of creditor or mortgagee.
* * *
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note
as of the date first above written.
HEALTH-ONE PROPERTIES, LLC
By:___________________________
Name:
Title:
"NE VARIETUR" for identification
with an act of mortgage this day passed
before me, on May ___, 1998.
___________________________________
NOTARY PUBLIC
22
EXHIBIT "B"
MORTGAGE UNITED STATES OF AMERICA
BY: HEALTH-ONE PROPERTIES, LLC STATE OF LOUISIANA
TO: RAMSAY LOUISIANA, INC. PARISH OF ST. TAMMANY
BE IT KNOWN, that on this ____ day of May, in the year of Our Lord, one
thousand nine hundred and ninety eight:
BEFORE ME, _____________________, a Notary Public, duly commissioned and
qualified in and for the Parish and State aforesaid, therein residing, and in
the presence of the witnesses hereinafter named and undersigned:
PERSONALLY CAME AND APPEARED:
_________________, as __________________ of and on behalf Health-One Properties,
LLC,
domiciled in ____________________, State of Louisiana, and whose permanent
mailing address is declared to be ____________________, hereinafter designated
as "Mortgagor", who declared and acknowledged that mortgagor is justly and truly
indebted unto
_________________, as ____________________ of and on behalf of Ramsay Louisiana,
Inc.,
domiciled in ____________________, State of ____________________, and whose
mailing address is declared to be c/o Ramsay Health Care, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as
"Mortgagee",
in the full and true sum of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($1,500,000.00) in representation whereof, said Mortgagor has made and
subscribed one (1) certain promissory note dated this day to the order of
"Bearer" and by them signed and endorsed and payable in one (1) lump sum of ONE
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00), to be paid on
May 1, 1999 (the "Maturity Date"), and which said note stipulated to bear
interest at the rate of twelve percent (12%) per annum from the date thereof
until paid, payable on the first (1st) day of June, 1998, and on the first (1st)
day of each month thereafter until the principal sum is paid in full. The
makers of the herein referred to note reserve the right to prepay the said note
at any time, without penalty, upon payment of interest to date, which note after
having been duly paraphed "Ne Varietur" by me, said Notary, for identification
herewith has been
23
delivered to said vendor, here present acknowledging receipt thereof, and
accepting these presents.
And the said Mortgagor further declared that said Mortgagor does by these
presents bind and obligate said Mortgagor to pay and reimburse all such lawyer's
and attorney's fees, together with all such costs, charges and expenses as the
present or any future holder or holders of said indebtedness, represented as
aforesaid, shall or may incur or pay in the event of the nonpayment of said
indebtedness or any part thereof, at maturity, or in case it should become
necessary to place said indebtedness, or any part thereof, in the hands of an
attorney at law for collection, suit or otherwise, said attorney's fees, however
to be fixed at twenty five percent (25%) on the amount due or so in suit.
NOW, THEREFORE, in order to secure the full and final payment of said
indebtedness, represented as aforesaid, in capital and interest, together with
all costs, including the attorney's fees herein stipulated the Mortgagor does by
these presents specially mortgage and hypothecate unto the said Mortgagee and
such person or persons who may eventually be the holder or holders of said
indebtedness, represented as aforesaid, the property described on Exhibit "A"
attached hereto.
TOGETHER with all buildings and improvements located thereon and all right,
title and interest of the mortgagor in and to the land lying in the streets and
roads in front of and adjoining said premises;
TOGETHER with all fixtures, chattels and articles of personal property now
or hereafter attached to or used in connection with said premises, including but
not limited to furnaces, boilers, oil burners, radiators and piping, coal
stokers, plumbing and bathroom fixtures, refrigeration, air conditioning and
sprinkler systems, wash-tubs, sinks, gas and electric fixtures, stoves, ranges,
awnings, screens, window shades, elevators, motors, dynamos, refrigerators,
cabinets, incinerators, plants and shrubbery and all other equipment and
machinery, appliances, fittings and fixtures of every kind in or used in the
operation of the buildings standing on said premises, together with any and all
replacements thereof and additions thereto;
TOGETHER with all awards heretofore and hereafter made to the Mortgagor for
taking by eminent domain the whole or any part of said premises or any easement
therein, including any awards for changes of grade of streets, which said awards
are hereby assigned to the mortgagee, who is hereby authorized to collect and
receive the proceeds of such awards and to give proper receipts and acquittances
therefor, and to apply the same toward the payment of the mortgage debt,
notwithstanding the fact that the amount owing thereon may not then be due and
payable; and the said Mortgagor hereby agrees, upon request, to make, execute
and deliver any and all assignments and other instruments sufficient for the
purpose of assigning said awards to the
24
mortgagee, free, clear and discharged of any encumbrances of any kind or nature
whatsoever.
It is agreed that the occurrence of any or all of the following shall be
deemed to be an event of default ("Event of Default") under this Mortgage: the
Mortgagor shall fail to make timely payment of interest and/or principal or of
any other amount due and payable under the Note; or Mortgagor shall sell,
alienate or encumber the mortgaged property to the prejudice of these presents;
or Mortgagor shall fail to make timely payment of real estate taxes assessed
against the mortgaged premises or to effect and keep in force said insurance or
to transfer and deliver said policies, as herein provided; or the Maturity Date
shall have occurred; or Mortgagor structurally alters, removes or demolishes any
building on the premises without the consent of the Mortgagee; or a court having
jurisdiction enters a decree or order for relief in respect of Mortgagor in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or other similar official (hereinafter
collectively referred to as "receiver or trustee") of Mortgagor or for any
substantial part of the property of Mortgagor or ordering the winding-up or
liquidation of the affairs of Mortgagor and such decree or order shall remain
unstayed and in effect for a period of 30 consecutive days; or should Mortgagor
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
of or taking possession by a receiver or trustee of Mortgagor or for any
substantial part of the property of Mortgagor, or make any general assignment
for the benefit of creditors, or fail generally to pay the debts of Mortgagor as
they become due, or take action in furtherance of any of the foregoing; or
Mortgagor fails to maintain the buildings on the premises in reasonably good
repair, or fails to comply with any requirement or order or notice of violation
of law or ordinance issued by any governmental department claiming jurisdiction
over the premises within three months from the issuance thereof.
The said property so to remain mortgaged and hypothecated until the full
and final payment of the aforesaid indebtedness in capital and eventual
interest, it being agreed and stipulated that if an Event of Default under this
Mortgage shall occur, it shall be lawful for the property hereinbefore described
and herein mortgaged to be seized and sold under executory process issued by any
court of competent jurisdiction, without appraisement, to the highest bidder,
payable in cash; the said Mortgagor hereby confessing judgment in favor of said
Mortgagee and such person or persons who may be the owner or owners of said
indebtedness for the full amount thereof, capital and interest, together with
all costs, including the attorney's fees herein stipulated. The said Mortgagor
further expressly waives the citation and all notices and delays, including the
three (3) day notice provided by Article 2639 of the Code of Civil Procedure;
the said Mortgagor further waives and renounces all and every
25
appraisement and the benefit of appraisement and all laws relating to
appraisement of property seized and sold under executory or any other legal
process.
That Mortgagor will pay taxes, assessments, and other governmental or
municipal charges, fines or impositions, for which provisions have not been made
heretofore, and in default thereof the Mortgagee may pay the same, as in his
discretion may be necessary, and the sum so paid shall be a further lien on said
premises under this mortgage, payable forthwith; and that the Mortgagor will
promptly deliver the official receipts therefor to the said Mortgagee.
That Mortgagor will keep the improvements now existing or hereafter erected
on the mortgaged property insured as may be required from time to time by the
Mortgagee against loss by fire and for such periods as may be required by the
Mortgagee and will pay promptly, when due, any premiums on such insurance,
provision for payment of which has not been made hereinbefore. All insurance
shall be carried in companies approved by the Mortgagee and the policies and
renewals thereof shall be held by the Mortgagee and have attached thereto loss
payable clauses in favor and in form acceptable to the Mortgagee. In event of
loss, Mortgagor will give immediate notice by mail to the Mortgagee, who may
make proof of loss if not made promptly by Mortgagor, and each insurance company
concerned is hereby authorized and directed to make payment for such loss
directly to the Mortgagee instead of to the Mortgagor and the Mortgagee jointly,
and the insurance proceeds or any part thereof, may be applied by the Mortgagee
at its option either to the reduction of the indebtedness hereby secured or to
the restoration or repair of the property damaged. In the event of foreclosure
of this mortgage or other transfer of title to the mortgaged property in
extinguishment of the indebtedness secured hereby, all right, title and interest
of the Mortgagor in and to any insurance policies then in force shall pass to
the purchaser or grantee.
That no building on the premises shall be structurally altered, removed or
demolished without the consent of the Mortgagee.
That the Mortgagor warrants the title to the premises.
That in case of a foreclosure sale, said premises, or so much thereof as
may be affected by this Mortgage, may be sold in one parcel.
That if any action or proceeding be commenced (except an action to
foreclose this Mortgage or to collect the debt secured thereby), to which action
or proceeding the Mortgagee is made a party, or in which it becomes necessary to
defend or uphold the lien of this Mortgage, all sums paid by the Mortgagee for
the expense of any litigation to prosecute or defend the rights and lien created
by this Mortgage (including reasonable counsel fees), shall be paid by the
Mortgagor, together with
26
interest thereon at the rate of six percent per annum, and any such sum and the
interest thereon shall be a lien on said premises, prior to any right, or title
to, interest in or claim upon said premises attaching or accruing subsequent to
the lien of this Mortgage, and shall be deemed to be secured by this Mortgage.
In any action or proceeding to foreclose this Mortgage, or to recover and
collect the debt secured thereby, the provisions of law respecting the covering
of costs, disbursements and allowances shall prevail unaffected by this
covenant.
That the Mortgagor hereby assigns to the Mortgagee the rents, issues and
profits of the premises as further security for the payment of said
indebtedness, and the Mortgagor grants to the Mortgagee the right to enter upon
and take possession of the premises for the purpose of collecting the same and
to let the premises or any part thereof, and to apply the rents, issues and
profits, after payment of all necessary charges and expenses, on account of said
indebtedness. This assignment and grant shall continue in effect until the
Mortgage is paid. The Mortgagee hereby waives the right to enter upon and to
take possession of said premises for the purpose of collecting said rents,
issues and profits, and the Mortgagor shall be entitled to collect and receive
said rents, issues and profits until the occurrence of an Event of Default or
any other default under any of the covenants, conditions or agreements contained
in this Mortgage, and agrees to use such rents, issues and profits in payment of
principal and interest becoming due on this Mortgage and in payment of taxes,
assessments, sewer rents, water rates and carrying charges becoming due on this
Mortgage and in payment of taxes, assessments, sewer rents, water rates and
carrying charges becoming due against said premises, but such right of the
Mortgagor may be revoked by the Mortgagee upon any default, on five days'
written notice. Mortgagor shall not enter into or permit any leases or
subleases of all or any part of the premises, without Mortgagee's prior written
consent in its sole discretion.
That the execution of this Mortgage has been duly authorized by the
appropriate individual(s) on the part of the Mortgagor.
It is agreed that if an Event of Default shall occur under this Mortgage,
then all said indebtedness, on demand by Mortgagee, shall ipso facto become
immediately due and exigible.
The said ____________________ declared that in favor of said note secured
hereby, as regards the property herein mortgaged, Mortgagor waives any and all
homestead exemptions to which it is or may be entitled under the constitution
and laws of the State of Louisiana.
Whenever the word "Mortgagor" is used in this act, it shall be construed to
include "Mortgagors", and whenever the word "Mortgagee" is used, it shall be
construed to include "Mortgagees".
27
All the agreements and stipulations herein contained, and all the
obligations herein assumed, shall inure to the benefit and be binding upon the
heirs, successors, and assigns of the respective parties hereunto.
The certificates of mortgage and conveyance as required by Article 3364 of
the revised Civil Code of Louisiana are ____________________.
* * *
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THUS DONE AND PASSED in Covington, Parish and State aforesaid, in the
presence of the undersigned competent witnesses, who have hereunto signed their
names with the parties, and me, said Notary, the day, month and year first above
written.
WITNESSES: Health-One Properties, LLC
________________________ By:_____________________
Name:
Title:
________________________
________________________
NOTARY PUBLIC
EXHIBIT "C"
▇▇▇▇ of Sale
------------
KNOW ALL MEN BY THESE PRESENTS that RAMSAY LOUISIANA, INC., a Delaware
corporation (the "Seller"), the owner of that certain real property located in
------
the City of ▇▇▇▇▇▇▇▇▇, Parish of St. Tammany, Louisiana as more particularly
described on Exhibit A attached hereto (the "Real Property") in accordance with
-------------
the terms of that certain Agreement of Purchase and Sale, dated as of
__________, 1998 (the "Agreement"), between Seller and HEALTH-ONE PROPERTIES,
---------
LLC, a __________ limited liability company (the "Buyer"), and for good and
-----
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does by these presents, grant, bargain, sell, deliver and transfer
unto Buyer, all moveable and attached furnishings, furniture, equipment,
fixtures, trade fixtures and other tangible personal property owned by Seller
(the "Personal Property") and located on the Real Property as of the date
-----------------
hereof.
TO HAVE AND TO HOLD the Personal Property hereby transferred and
conveyed upon Buyer, its successor and assigns, for its and their own use
forever.
This ▇▇▇▇ of Sale and the covenants and agreements herein contained
shall be binding upon Seller, its successors and assigns, and shall inure to the
benefit of Buyer and its successors and assigns.
IN WITNESS WHEREOF, Seller has made and executed this ▇▇▇▇ of Sale as
of the ____ day of _________, 1998.
SELLER:
RAMSAY LOUISIANA, INC.
By:_________________________
Name:_______________________
Title:______________________